The uncertainty over the fate of the 11 Bharatiya Janata Party rebel legislators in Karnataka continues with a split verdict on Monday by a two-member Bench of the Karnataka High Court on their disqualification. While Chief Justice J.S. Khehar upheld the October 10 action of the Speaker in disqualifying the rebels, Justice N. Kumar said the Speaker's action violated the Constitution, and set it aside.

After the verdict, the Chief Justice said a third judge would now hear the case on October 20.

While the judges agreed on three of the four points that came up for discussion, they differed on the provisions of Para 2 (1) (a) of the 10th Schedule of the Constitution that deals with disqualification of members of a legislature.

While Justice Khehar ruled that the Speaker was well within his rights to invoke the provisions against the rebels, Justice Kumar said the Speaker's action suffered from perversity and, therefore, it ought to be set aside.

The Bench agreed on the contentions advanced by the BJP that there is no mala fide in the Speaker's action. It said the tenets of natural justice were fulfilled as the rebels were given a chance to put forth their views before being disqualified. It also said that the rules (before disqualification) were followed.

Justice Kumar said dissent did not tantamount to defection, while the Chief Justice held that the rebels attracted disqualification by their action.

The Governor was right in asking the Chief Minister to prove his majority in the House after the rebels and five Independents wrote to the Governor withdrawing their support to the government. There was total lack of application of mind in the Speaker's order as far as the defence of the petitioners was concerned.

There was no material before the Speaker to show that the rebels had given up the party from which they were elected. They had also not voluntarily given up party membership and, hence, provisions of Para 2 (1) (a) and (b) could not have been invoked against them.

On the action of the rebels, he said, it was not dissidence but dissent. “The right of dissent is the essence of democracy. For success of democracy and democratic institutions, honest dissent has to be respected. Power and position should not be abused to muzzle such dissent. If it is done it will be the end of democracy.”

In a related case, the Bench asked the Registry to post before another Bench the matter relating to the disqualification of the five Independents.

This case is slated to come up before the Bench on November 2.