By joining a coalition government and becoming Ministers, Independents will not lose their separate identity, and later by expressing lack of faith in the Chief Minister, they will not attract disqualification, the Supreme Court has held.

A Bench of Justices Altamas Kabir and Cyriac Joseph gave this ruling on Wednesday while setting aside the Karnataka Assembly Speaker's order disqualifying five Independents for expressing lack of faith in the B.S. Yeddyurappa government. In May 2011, the Bench had quashed the Speaker's order and said it would give detailed reasons later.

X Schedule

Writing the judgment, Justice Kabir interpreted the provisions of X Schedule of the Constitution on defections, and held that these MLAs joining the BJP government did not mean that they had sacrificed their independent identities.

The Bench said: “It is no doubt true that an Independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Mr. Yeddyurappa and the decision to join his Cabinet, in our view, were not sufficient to conclude that the appellants had decided to join and/or had actually joined the BJP, particularly on account of the subsequent conduct in which they were treated differently from the members of the BJP.”

The Bench said: “There is no material or evidence to show that the appellants had at any time joined the BJP. Even as Independents, the appellants could extend support to a government formed by a political party and could become a Minister in such government. There is no legal bar on… such extension of support or [their] joining the government.” Hence, such extension of support by an Independent or his joining the government as Minister would not by itself mean he had joined the party which formed the government.

“There is also no evidence to show that the appellants were accepted and treated as members of the BJP by that … party. It is to be noted that the petitioners before the Speaker had no grievance about the appellants supporting the BJP government and becoming Ministers in the government for more than two years.”

The Bench said: “Only when the appellants withdrew support to the government led by Mr. Yeddyurappa and a confidence vote was scheduled to be held did the petitioners rake up the issue of alleged disqualification. The appellants, D. Sudhakar and others, even while participating in the meetings of the BJP Legislature Party, were shown separately in a category different from the other participants.” This clearly indicated that the appellants were treated differently from BJP members and considered to be only lending support to the government without losing their independent status. Mere participation in rallies or public meetings organised by the BJP could not lead to the conclusion that the appellants had joined the BJP.

The Bench said: “The order of disqualification passed by the Speaker was against the constitutional mandate in para 2(2) of the Tenth Schedule.”

Indicting the Speaker, the Bench said: “It is obvious from the procedure adopted by the Speaker that he was trying to meet the time schedule set by the Governor for the trial of strength in the Assembly and to ensure that the appellants and 13 BJP MLAs stood disqualified prior to the date on which the floor test was to be held.” Having concluded the hearing by 5 p.m. on October10, 2010, the Speaker the same day passed detailed orders — in which various judgments, both of Indian courts and foreign courts, and principles of law from various authorities, were referred to — holding that the appellants and the other MLAs stood disqualified. The Bench pointed out that the disqualified members could not participate in October 11, 2010 vote of confidence, and in their absence Mr. Yeddyurappa was able to prove his majority. Other than ensuring that the trust vote did not go against the Chief Minister, “there was hardly any reason for the Speaker to have taken up the disqualification applications in such a great haste.”

On the contention that the Speaker was not amenable to court jurisdiction, the Bench, citing various decisions, held that under the Constitution, “the Speaker discharges quasi-judicial functions, which makes an order passed by him in such capacity subject to judicial review.”

  • Independents, though supporting government, were not treated as BJP members

  • Only to ensure that trust vote didn't go against CM, Speaker acted in great haste