In a new turn to political developments in Karnataka, the state high court was split on the disqualification of 11 BJP MLAs by the speaker and the issue will now be heard by a third judge on October 20.
However, on the issue of disqualification of 5 Independent MLAs, the two-member bench of the court referred the matter to a division bench which will hear it on November 2.
While Chief Justice JS Khehar upheld the disqualification of 11 BJP MLAs by speaker KG Bopaiah, the other judge on the bench N Kumar set aside the speaker's order.
Justice Khehar said the case of 11 MLAs will be posted before a third judge who will hear it on October 20.
On the 5 Independent MLAs case, the bench said "we are of the view it should go to some other bench.We will post it before some other bench."
Late on the night of October 10, the speaker had disqualified 11 BJP MLAs and 5 Independent MLAs under the anti-defection law ahead of the trust vote by chief minister BS Yeddyurappa on October 11.
Amidst pandemonium, the speaker had declared the chief minister's confidence motion carried by a voice vote which the Opposition had contested.Governor HR Bhardwaj called the proceedings in unconstitutional and recommended president's rule in the state.
However, the next day he gave the chief minister another opportunity to prove his majority in the house on October 14, while the high court reserved orders for October 18 in the case of 11 BJP MLAs.The court also ruled that the fate of vote in the house on October 14 will depend on its final verdict in the case.
The first BJP government in the south proved its majority in the truncated assembly with 106 MLAs voting for it and 100 voting against.
The bench said it had taken into consideration four issues which are (1) violation of rules, (2) principles of natural justice, (3) Para 2(1)(a) of the 10th Schedule of the Constitution regarding disqualification of an MLA (when he voluntarily gives up his member of his party or if he votes or abstains from voting contrary to any direction issue by his party) and (4) mala fides.
On the issue of violations of rules, the bench found that it was not not mandatory while on the principles of natural justice, it held that it was complied with.
Regarding mala fides on the part of the Speaker, the bench held that pleadings in the case were not not sufficient arrive at any conclusion.
However, the bench differed on the issue of disqualification under Para 2(1)(a) of the anti-defection law.
"I am upholding the order (of the Speaker)," Justice Khehar said while Justice N Kumar said "I set aside the order".
Satyapal Jain, counsel for the BJP government, said the court has held that there was no no violation of rules or procedures or the principle of natural justice in regard to disqualification of 11 BJP MLAs.
"Only on the question of disqualification of 11 BJP MLAs as to the question whethertheir conduct in approaching the Governor against the chief minister amounted to leaving their political party the bench differed.A third judge will decide," he said.
During the hearing in the case last week, counsel for the BJP government submitted that the action of 11 BJP rebels MLAs approaching the governor with a memorandum against the chief minister amounted to voluntarily giving up their membership of the party.
This amounted to defection and invites the mischief of the anti-defection law, they maintained.
However, the disqualified MLAs contended that their action only questioned the chief minister and did not not amount to giving up membership of the party and thus they cannot be disqualified.
The 5 Independent MLAs contended that they were not not part of the BJP and so the anti-defection law provision does not not apply to them. However, their pleading led to confusion and time was given to them to correct mistakes in their petition. PTI
