Observations or strictures? Even legal eagles stand divided in Karnataka

Legislators are in a fierce debate on the Supreme Court’s remarks on the way the speaker and the chief minister conducted themselves during the BJP government’s trust vote in October 2010.

The apex court on May 13 made some serious remarks on the events surrounding the disqualification of 16 MLAs. The opposition Congress and JD(S) termed them as “strictures”, but BJP maintained they were “observations”.

According to former advocate general and senior counsel BV Acharya, there is a very thin line between observations and strictures.

“Sharp, serious criticisms and censure may be called as 'strictures'. In this case, they cannot be called ‘strictures’; it is just different views. But the court has used the word 'extraneous considerations' which may appear as a sort of stricture,” he said.

Stating that the apex court observations against speaker KG Bopaiah was “disapproval”, Supreme Court advocate KV Dhananjay said, “When a superior court watches or observes the conduct of a public officer and states that the conduct of such public officer is unbecoming of his office, such statement is known as a “stricture”. The Supreme Court judgement does not contain any stricture on either the chief minister or the governor. Rather, the judgement disapproves of the conduct of the speaker.”

He said the judgement should be seen in the context of the fact that two judicial views were possible to be taken on the conduct of the speaker. The high court took one view, the Supreme Court another. Most of these controversies that are of a legal nature are best handled if only those who consult their lawyers also insist and take written opinion from their lawyers. When under fire, it should be the lawyer whose advice leads to the questionable conduct that should be justifying such conduct.In this case, the speaker acted as if such an application was also before him, when in fact, there was no such application.

However, senior high court counsel Ravivarma Kumar said the Supreme Court had passed severe strictures. It has used strong words like “extraneous”. That itself indicates that the speaker’s position was misused.

"For the first time in the Indian history, a court made charges against the speaker. He has not right to continue as speaker,” said Kumar.

Pronouncing the verdict, judges Altamas Kabir and Cyriac Joseph observed that the speaker proceeded as if he was required to meet the October 12, 2010 deadline set by the governor, irrespective of whether he was ignoring constitutional norms set out in the Tenth Schedule to the Constitution and the Disqualification Rules, 1986, and in contravention of the basic principles that go hand-in-hand with the concept of a fair hearing.

The judgement said even if the Disqualification Rules were only directory in nature, sufficient opportunity ought to have been provided to the appellants to respond to allegations levelled against them.

“... It is hard to explain as to how the affidavits, affirmed by KS Eswarappa, MP Renukacharya and Narasimha Nayak, were served on the learned advocates appearing for the appellants only on the date of hearing, and that too, just before the hearing. Extraneous considerations are writ large on the face of the speaker’s order and the same has to be set aside,” the judges ruled.