Bangalore: Amid prolonged uncertainty over the fate of the BJP government in Karnataka, a new single bench of the Karnataka High Court will hear tomorrow (Wednesday) the petitions filed by 11 rebel BJP MLAs challenging their disqualification, two days after a split verdict.
In a twist to the case, Chief Justice J S Khehar and Justice N Kumar had on Monday 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.
Khehar upheld Speaker K G Bopaiah's order disqualifying the 11 MLAs but Kumar set it aside in their 166-page order and referred the case to a "third judge".
Khehar said he has no doubt whatsoever in his mind, which the October 6 letter addressed by the 11 MLAs to Governor H R Bhardwaj was by itself sufficient to conclude that they had suffered disqualification envisaged under paragraph 2 (1) (a) of the Tenth Schedule of the Constitution.
The MLAs had said in their individual letters to the Governor that they got disillusioned with the functioning of the B S Yeddyurappa government, expressed lack of confidence in it and withdrew their support to it.
Striking a different note from Justice Khehar, Justice Kumar held that the Speaker's order was in violation of constitutional mandate and suffered from perversity and, therefore, cannot be sustained.
He also referred to the same October 6 letters by the MLAs in which they had said there has been widespread corruption, nepotism, favouritism, abuse of power and misuse of government machinery in government's functioning.
According to Justice Kumar, expressing want of confidence in the chief minister, or withdrawing their support or demanding change of leadership of the legislature party or threatening to vote against him on the floor of the House did not amount to an unconstitutional act.
Nor was it an unconstitutional act to complain to the Governor that the Governance cannot be carried on in accordance with the provisions of the Constitution or the governor asking the chief minister to prove his majority on the floor of the House, the judge said.
The person who triggered this action cannot be called a defector, he said.
"These actions do not constitute an act of defection nor on that account a member of the House can be disqualified under paragraph 2 of the Tenth Schedule," he said.
"These acts are strictly within the four corners of the Constitution, and cannot constitute disqualification under Paragraph 2 of the Tenth Schedule."
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