The matterwhether the 11 MLAs, by writing to the Governor on October 6 withdrawing support to the government, had effectively defected from the BJP, warranting disqualification by the Speaker on October 10 came up before a Division Bench comprising Chief Justice JS Khehar and Justice N Kumar on Monday. Though the Bench agreed that the Speakers orders of October 10 did not violate the principles of natural justice or procedural rules, and that it was not passed with malafide intention, it did not arrive at a consensus on whether the act of withdrawing support to the government amounted to defection.
While Chief Justice Khehar has, in his order, said the letter to the Governor was sufficient to warrant action under the anti-defection laws, Justice Kumar has equated the MLAs to whistleblowers expressing dissent.I have no doubt whatsoever in my mind, that the letter dated 06.10.2010 addressed by the petitioners to the Governor of the State of Karnataka, was by itself sufficient to conclude, that the petitioners had suffered the disqualification envisaged under paragraph 2(1)(a) of the Tenth Schedule of the Constitution of India, says Chief Justice Khehar in his 74-page order.
According to him, the 11 MLAs, including three ministers, should have quit their ministries if they were not happy with the functioning of the CM.If the petitioners were dissatisfied with the manner of functioning of the government headed by BS Yeddyurappa, which, according to them, had led to widespread corruption, nepotism, favoritism, abuse of power, and misuse of government machinery, they ought to have resigned, before taking recourse to any other action, his order states.
The MLAs were even willing to bring down the government led by their own political party itself, even though all the petitioners had been elected to the Karnataka Legislative Assembly on its tickets. This anti-party action of the petitioners, in my view, fully demonstrates that the petitioners had voluntarily given up their membership to BJP, he says. The Chief Justice has concluded that the Speakers order of October 10 suffers no infirmity.
On the other hand, Justice N Kumar has found that the order passed by the Speaker is in violation ofconstitutional mandate, as well suffers from perversity and therefore, it cannot be sustained.
Justice Kumar has viewed the letter to the Governor as an act of dissent and not defection from the BJP.
Right to express dissent cannot be construed as an act of defection, he says in his 92-page order.These petitioners, knowingly or unknowingly, have touched the right chord and they could be the whistleblowers in the present context, in the fight against unethical, unprincipled behaviour of politicians wielding power, Justice Kumar has stated.
Expressing want of confidence in the leader of the political party, which has formed the government, cannot be equated to such a member giving up voluntarily the membership of the political party, he says.
Right to dissent is the essence of democracy. For success of democracy and democratic institutions, honest dissent is to be respected by persons in authority. Power and position should not be abused to muzzle such dissent. If it is done, that is the end of democracy, says Justice Kumar.
If the internal democracy in a political party is stifled, then the persons who acquire power through democratic process would become despots. The intention of enacting Tenth Schedule in the Constitution is not to create such a situation, he states.
The Bench also decided to transfer the issue of disqualification of five Independent MLAs by the Speaker to a new Division Bench. The case has been posted for November 2.