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CASE NO.:
Writ Petition (civil) 287 of 2004
PETITIONER:
Jagjit Singh
RESPONDENT:
State of Haryana & Ors
DATE OF JUDGMENT: 11/12/2006
BENCH:
CJI,C.K. Thakker & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
[With WP (C) Nos.290, 291, 292, 293 & 294 of 2004]
Y.K. Sabharwal, CJI.
These petitions challenge the legality of orders passed by
the Speaker of Haryana Legislative Assembly (for short, 'the
Assembly') disqualifying petitioners from being members of the
Assembly. The impugned orders have been passed in exercise
of the powers conferred on the Speaker under the Tenth
Schedule to the Constitution of India. Four petitioners (Writ
Petition Nos.290, 291, 293-294 of 2004) were independent
members of the Assembly. Petitioner Jagjit Singh
(W.P.No.287 of 2004) belonged to a political party named
'Democratic Dal of Haryana'. He was a lone member
representing his party in the Assembly. Petitioner- Karan
Singh Dalal (W.P.No.292 of 2004) was a lone member of a
political party named 'Republican Party of India' in the
Assembly.
The petitioners were elected to the Assembly in election
held in February, 2000. All impugned orders disqualifying the
petitioners were passed on 25th June, 2004. The voting for
election to Rajya Sabha took place on 28th June, 2004. The
petitioners, however, could not vote in the said election,
having ceased to be the members of the Assembly with
immediate effect.
The challenge to the orders of disqualification is made on
various grounds. The ground common to all the petitions is
the violation of principles of natural justice. It has been
contended on behalf of all the petitioners that the orders of
disqualification were made in utter haste with a view to
deprive them of their right to vote on 28th June, 2004 with a
view to help the Chief Minister whose son was a candidate in
elections to Rajya Sabha. It is contended that the Speaker
had no basis for coming to the conclusion that the
independent members had joined the Indian National
Congress. It is claimed that the impugned orders are clearly
result of malafides of the Speaker. On behalf of the two
petitioners belonging to political parties, it has been contended
that they are entitled to protection of paragraph 3 of the Tenth
Schedule since there were splits in their original political
parties and they being single member parties in the Assembly,
on having joined Indian National Congress, the stipulation
that when more than one-third members join another party,
there is a split, stood fulfilled, it being a case of hundred per
cent members joining another political party.
Before considering the legal submissions, we may briefly
narrate the facts of each case.
Writ Petition No.287 of 2004 (Jagjit Singh) and Writ Petition
No.292 of 2004 (Karan Singh Dalal)
The petitioner contested election as a candidate of
National Congress Party (NCP) and was the only elected
member of the party in the Assembly. The case of the
petitioner is that on 28th December, 2003 due to
organizational difficulties and differences with the central
leadership of NCP which is primarily based in
Maharashtra/Meghalaya, the workers/leaders of the NCP at
Haryana decided to cause a split by passing a unanimous
Resolution. The split was recognized by central leadership of
NCP. On split, a new political party named 'Democratic Dal of
Haryana' was formed. The petitioner on 29th December, 2003
filed application before the Speaker placing the factum of split
and formation of the new party on record. On 31st December,
2003, respondent No.3 filed a complaint before the Speaker
under paragraphs 2 and 6 of the Tenth Schedule of the
Constitution of India seeking disqualification of the petitioner
on the ground that he has voluntarily defected from NCP and
formed/joined Democratic Dal of Haryana. On 17th March,
2004, Speaker issued notice to petitioner calling for his
comments to the allegations made against him. However,
notice could not be served on the petitioner. The case of
petitioner is that on 30th April, 2004 merger of Democratic Dal
of Haryana took place with Indian National Congress in
accordance with law and, therefore, the case is covered by
Paragraph 4 of the Tenth Schedule. In this view, no
proceedings for disqualification could be initiated or
continued. A further notice dated 23rd April, 2004 was also
issued to the petitioner. A fresh notice dated 18th May, 2004
was issued calling upon the petitioner to file reply on or before
4th June, 2004 that was served on the staff of the petitioner on
31st May, 2004. The petitioner on 4th June, 2004 filed an
application before respondent no.2 Speaker placing on
record certain facts and praying for extension of time by four
weeks to file reply. On 23rd June, 2004, request of the
petitioner for adjournment of proceedings beyond 28th June,
2004 was rejected by the Speaker who heard the arguments
and listed the matter for further proceedings for 24th June,
2004. On 24th June, 2004, proceedings were adjourned to
25th June, 2004 for orders. Further case of the petitioner is
that the Speaker on 24th June, 2004, called him on his mobile
phone and stated that if petitioner decides to abstain from
voting in election of Rajya Sabha on 28th June, 2004, his
disqualification can be avoided. The impugned order was
passed on 25th June, 2004.
One of the contentions urged is that the Speaker,
respondent No.2, has not filed any reply and, therefore, the
averment made that he called the petitioner on 24th June,
2004 asking him that if he decides to abstain from voting,
disqualification can be avoided shall be deemed to be admitted
and, thus, the malafides of the Speaker are apparent. The
contention is that the Speaker was acting on the dictates of
respondent No.5, the Chief Minister of Haryana whose son was
contesting the election to Rajya Sabha and the impugned
order was passed at his behest.
The facts of writ petition No.292 of 2004 are almost
similar with the only difference that the petitioner here was
member of another political party, namely, Republican Party of
India (RPI). All other facts including the dates, grounds, non-
service and thereafter manner of service of the notice are
almost similar.
W.P.No.291 of 2004 (Dev Raj Dewan) and W.P. Nos.290, 293-
294/2004
The petitioner in Writ Petition No.291 of 2004 was elected
as an independent member of the Assembly and as such
supported from outside the Government of Indian National Lok
Dal Party headed by respondent No.5, as Chief Minister for
more than four years from February, 2000 to June, 2004. The
case of the petitioner is that on 14th June, 2004, he withdrew
his support to Government of respondent No.5 and declared
his outside support to Indian National Congress in the State of
Haryana. On 15th June, 2004, a complaint was filed against
him by respondent No.3 under paragraphs 2 and 6 of the
Tenth Schedule of the Constitution on the ground that
petitioner had joined the Indian National Congress.
Complaints were also filed against petitioners in Writ Petition
Nos.290, 293-294 seeking their disqualification on similar
grounds. The Speaker, respondent No.2, issued notice to the
petitioner on 16th June, 2004 for submitting comments on 24th
June, 2004. The application dated 23rd June, 2004 filed by
respondent No.3 before Speaker to place on record additional
evidence was taken up by the Speaker on 24th June, 2004.
The copies of application dated 23rd June, 2004 for placing on
record additional evidence, affidavit of Ashwani Kumar along
with transcripts of interview on Zee TV and Haryana News and
the alleged page of Congress Legislature Party Register dated
16th June, 2004 were handed over by the Speaker to the
counsel for the petitioner at 3.30 p.m. on 24th June, 2004 with
a direction to file reply thereto by 10 a.m. on the next date i.e.
25th June, 2004. On 25th June, 2004, petitioner filed a short
reply to the main petition alleging malafides against the
Speaker and the Chief Minister and denying that he joined
Indian National Congress. A reply was also filed on that date
to the application stating that fair opportunity to contest the
proceedings had not been granted and the evidence is
concocted and manipulated. An opportunity was sought to
cross-examine Ashwani Kumar and also to lead evidence. On
the same date at 1.00 p.m. the impugned order was passed.
The facts in the other three cases are almost identical.
According to the petitioners, there is no material for
coming to the conclusion that they joined Indian National
Congress. They attribute malafides to respondent Nos.2 and
5. According to them, the sole purpose of respondent No.2
was to deprive them of their right to exercise their franchise in
the Rajya Sabha elections to help the son of the Chief
Minister. They also dispute the correctness of the T.V. and
newspaper reports to the effect that they have all joined Indian
National Congress. The contention is that joining a political
party is different from extending outside support to it. They
contend that in a similar manner the petitioners without
joining the party of respondent No.5, for nearly 4 years were
extending his Government outside support and now their
decision to extend outside support to Indian National
Congress cannot and does not amount to joining the said
political party. It has been strenuously contended that the
petitioners have been denied the opportunity to lead evidence
and to cross-examine witnesses of the complainant to
demonstrate that they had not joined Indian National
Congress. It is contended that the orders of disqualification
cast a stigma on the petitioners and adversely affected their
reputation and any provision which may lead to their
disqualification and affect their reputation has to be strictly
construed. It is further contended that there is a fundamental
difference between the position of independent candidates and
those who are elected on tickets of political parties. It is also
their contention that the Speaker has passed orders with a
pre-determined mind in haste so as to deprive the petitioners
of their right to vote in Rajya Sabha elections. The submission
is that the petitioners were entitled to explain what had
appeared in the print and electronic media. The main
contention is that since principles of natural justice have been
violated, the impugned orders are nullity.
Four petitioners who were elected as members of the
Assembly as independent candidates, have been disqualified
by the impugned orders under paragraph 2(2) read with
paragraph 6 of the Tenth Schedule. Paragraph 2(2) provides
that an elected member of a House who has been elected as
such otherwise than as a candidate set up by any political
party shall be disqualified for being a member of the House if
he joins any political party after such election. According to
the impugned orders, the four independent members of the
Assembly having joined Indian National Congress have
incurred this disqualification.
The Speaker, while exercising power to disqualify
members, acts as a Tribunal and though validity of the orders,
thus, passed can be questioned in the writ jurisdiction of this
Court or High Courts, the scope of judicial review is limited as
laid down by the Constitution Bench in Kihoto Hollohan v.
Zachillhu & Ors. [1992 supp.(2) SCC 651]. The orders can
be challenged on the ground of ultra vires or malafides or
having been made in colourable exercise of power based on
extraneous and irrelevant considerations. The order would be
a nullity if rules of natural justice are violated.
The requirement to comply with the principles of natural
justice is also recognized in rules made by the Speaker in
exercise of powers conferred by paragraph 8 of the Tenth
Schedule. The Speaker, Haryana Legislative Assembly, made
the Haryana Legislative Assembly (Disqualification of Members
on ground of Defection) Rules, 1986 in exercise of power
conferred by paragraph 8 of the Tenth Schedule. Rule 7(7),
inter alia, provides that neither the Speaker nor the
Committee shall come to any finding that a Member has
become subject to disqualification under the Tenth Schedule
without affording a reasonable opportunity to such member to
represent his case and to be heard in person.
The question whether reasonable opportunity has been
provided or not cannot be put in a strait-jacket and would
depend on the fact situation of each case.
At the outset, we may mention that while considering the
plea of violation of principles of natural justice, it is necessary
to bear in mind that the proceedings, under the Tenth
Schedule, are not comparable to either a trial in a court of law
or departmental proceedings for disciplinary action against an
employee. But the proceedings here are against an elected
representative of the people and the judge holds the
independent high office of a Speaker. The scope of judicial
review in respect of proceedings before such Tribunal is
limited. We may hasten to add that howsoever limited may be
the field of judicial review, the principles of natural justice
have to be complied with and in their absence, the orders
would stand vitiated. The yardstick to judge the grievance
that reasonable opportunity has not been afforded would,
however, be different. Further, if the view taken by the
Tribunal is a reasonable one, the Court would decline to strike
down an order on the ground that another view is more
reasonable. The Tribunal can draw an inference from the
conduct of a member, of course, depending upon the facts of
the case and totality of the circumstances.
Now, we may note some of the judgments on which
reliance has been placed by learned counsel for the petitioners
to support the argument that the principles of natural justice
have been violated.
The observations in John v. Rees & Anr. [(1969) 2 All
E.R. at pages 307-309] relied upon are to the following effect:
"As everybody who has anything to do
with the law well knows, the path of the
law is strewn with examples of open and
shut cases which, somehow, were not; of
unanswerable charges which, in the
event, were completely answered; of
inexplicable conduct which was fully
explained; of fixed and unalterable
determinations that, by discussion,
suffered a change. Nor are those with
any knowledge of human nature who
pause to think for a moment likely to
underestimate the feelings of resentment
of those who find that a decision against
them has been made without their being
afforded any opportunity to influence the
course of events".
The argument is that if opportunity to lead evidence and
cross-examination had been granted to the petitioners, they
would have shown that they had not joined Indian National
Congress despite what had appeared in print and electronic
media.
Reliance is also placed on the observations of Justice
Chinnappa Reddy in National Textile Workers' Union &
Ors. v. P.R. Ramakrishnan & Ors. [(1983) 1 SCC 228] in
His Lordship's concurring opinion while dealing with a
litigation between two rival groups of shareholders of a
Company to take over the Company. While considering the
question of right of hearing claimed by the workers and the
question whether the Companies Act contemplates any
hearing to be given to the workers or it is to be given only to
the contributories and creditors, Justice Reddy observed that :
"And, what do the workers want? They
want to be heard lest their situation be
altered unheard. They invoke natural
justice, so to claim justice. They invoke
the same rule which the courts compel
administrative tribunals to observe. Can
courts say natural justice need not be
observed by them as they know how to
render justice without observing natural
justice? It will surely be a travesty of
justice to deny natural justice on the
ground that courts know better. There is
a peculiar and surprising misconception
of natural justice, in some quarters, that
it is, exclusively, a principle of
administrative law. It is not. It is first a
universal principle and, therefore, a rule
of administrative law. It is that part of the
judicial procedure which is imported into
the administrative process because of its
universality. "It is of the essence of most
systems of justice-certainly of the Anglo-
Saxon System-that in litigation both sides
of a dispute must be heard before
decision. 'Audi Alterum Par tern' was the
aphorism of St. Augustine which was
adopted by the courts at a time when
Latin Maxims were fashionable". Audi
Alterum Partem is as much a principle of
African, as it is of English legal
procedure; a popular Yoruba saying is:
'wicked and iniquitous is he who decides
a case upon the testimony of only one
party to it' (T.O. Elias : The Nature of
African Customary Law). Courts even
more than administrators must observe
natural justice."
After laying down aforesaid principles in relation to the
right of workers to be heard, learned Judge said :
"It is said that the Companies Act does
not confer any special rights on the
workers, they are virtual strangers to the
Act and so why should they be heard in
the petition for winding-up? The duty to
hear those asking to be heard is not
dependent on the vesting of any right
under the very statute in respect of which
jurisdiction is being exercised by the
court, but on any right whatever which
may come under threat. Surely it is not
the law that rights other than those
created by a particular statute may be
taken away in proceedings under that
statute without affording a hearing to
those desiring to be heard. If the statute
says only so and so will be heard and no
other, of course, no other will be heard. If
the statute does not say who may be
heard, but prescribes the procedure for
the hearing, that procedure must be
followed by every one who wants to be
heard and what applies to one will apply
to the other. If creditors and
contributories desire to be heard and are
heard, so shall workers. After hearing the
workers, the court may say that, on the
facts and circumstances of the case, it is
not necessary to hear them further; but
they cannot be turned away at the very
threshold. It may be that it is not for
them to support or oppose the winding-
up petition for any of the traditional
reasons. But they may make suggestions
which may avert winding-up, save the
company and save their own lives. They
may have suggestions to make for
restructuring the company or for the
transfer of the undertaking as a running
business. The workers themselves may
offer to run the industry forming
themselves into a society. They may have
a myriad suggestions to make, which
they can do if they are allowed to be
heard, If every holder of a single share
out of thousands may be heard, if every
petty creditor may be heard, why can't
the workers be heard? It is said that
once the workers are allowed to enter the
Company Court, the flood gates will be
opened, all and sundry will join in the
fray and utter confusion will prevail.
These are dark forebodings for which
there is no possible justification. The
interest of the workers is limited. It is the
interest of the others, those that battle for
control and for power that may create
chaos and confusion. It must not be
forgotten that the court is the master of
the proceedings and the ultimate control
is with the court. Parties may not be
impleaded for the mere asking or heard
for the mere seeking. The court may well
ask the reason why, if someone seeks to
be heard. Workers will not crowd the
Company Court and the Court will not be
helpless to keep out those whom it is not
necessary to hear. It is said that workers
will not be allowed to intervene in a
partition or a partnership action to
oppose partition or dissolution of
partnership and so why should they be
allowed to intervene in a winding-up
petition. That is begging the question.
There is no reason why workers may not
be allowed, in appropriate cases, to
intervene in partition and partnership
actions to avert disaster and to promote
welfare. As we said, impleading and
hearing are not for the mere asking and
seeking."
In the context of the present case, we fail to understand
the relevance and applicability of the relied upon observations.
The present is not a case of no opportunity. It is a case where
the question is whether sufficient opportunity was granted to
the petitioners or not.
Reliance was also placed on the decision in Swadeshi
Cotton Mills v. Union of India [(1981) 1 SCC 664]. In that
decision after reviewing almost the entire law including the
decision of House of Lords in Ridge v. Baldwin [(1964) AC
40] John v. Rees (supra), it was held that a quasi-judicial or
administrative decision rendered in violation of the audi
alteram partem rule, wherever it can be read as an implied
requirement of the law, is null and void.
There can be no quarrel about the applicability of general
principles laid down in the aforesaid cases but the question is
about the applicability of those principles to the facts of the
cases before us. Let us now consider the case which
specifically dealt with disqualification under the Tenth
Schedule and similar argument of violation of principles of
natural justice.
In Ravi S. Naik v. Union of India and Ors. [1994
Supp. (2) SCC 641], challenging the disqualification order
passed by the Speaker of the Goa Assembly, it was urged that
reasonable opportunity was denied in as much as sufficient
time was not granted to respond. Further, it was urged that
the Speaker had referred to certain extraneous materials and
circumstances, namely, the copies of the newspapers that
were produced at the time of hearing and the talks which the
Speaker had with the Governor and had denied to the
petitioner an opportunity to adduce evidence. Noticing the
principles of natural justice, the decision of this Court in
Kihoto Hollohan case, Mrs.Maneka Gandhi v. Union of
India & Anr. [(1978) 1 SCC 248], Union of India and Anr.
v. Tulsiram Patel [(1985) 3 SCC 398] and reiterating that an
order of an authority exercising judicial or quasi judicial
functions passed in violation of the principles of natural
justice is procedurally ultra vires and, therefore, suffers from a
jurisdictional error and that is the reason why in spite of
finality under paragraph 6 (1) of the Tenth Schedule, such a
decision is subject to judicial review on the ground of non-
compliance with the rules of natural justice, it was said that
"But while applying the principles of natural justice, it must be
borne in mind that "they are not immutable but flexible" and
they are not cast in a rigid mould and cannot be put in a legal
strait-jacket. Whether the requirements of natural justice
have been complied with or not has to be considered in the
context of the facts and circumstances of a particular case."
Dealing with the argument that reference has been made
to newspapers and opportunity to adduce evidence was
denied, it was held that the Speaker was drawing an inference
about the fact which had not been denied by the appellants
themselves viz. that they had met the Governor along with two
other persons in the company of Congress (I) MLAs. The talk
between the Speaker and the Governor also referred to the
same fact. It was noted that the controversy was confined to
the question whether from the said conduct an inference could
be drawn that they had voluntarily given up membership.
Rejecting the grievance about the denial of opportunity to
adduce evidence, in Ravi S. Naik's case, it was noticed that
appellants were the best persons who could refute the
allegations but they did not come forward to give evidence and
also failed to seek permission to cross examine one Dr. Jahlmi
in respect of the statement made by him before the Speaker
that the appellants had given up their membership of their
political party.
We will consider at an appropriate place later the
contention urged in the present case that unlike Ravi S.
Naik's case, the petitioners had disputed the allegations
made in the petition and had also sought permission for
leading evidence and for cross examination of Ashwani Kumar
which was illegally denied to them.
Considering that rules of natural justice are flexible, let
us now examine the facts of the present case where the
petitioners filed their replies to the complaint and were asked
by the Speaker to watch the video recording and point out
doctoring thereof, if any. The question is that having failed to
do so, can they be heard on the facts of the present case, to
say that non-grant of opportunity to cross-examine Ashwani
Kumar and to adduce evidence has resulted in violation of
rules of natural justice on having simply denied that they have
not joined the Indian National Congress? Had they availed of
the opportunity and pointed out how the recording was not
correct and it was doctored and then not permitted to lead
evidence, the argument that there has been violation of
principles of natural justice may have carried considerable
weight. The petitioners cannot be permitted to sit on the
fence, take vague pleas, make general denials in the
proceedings before the Tribunal of the nature under
consideration. Under these circumstances, mere denial of
opportunity to cross-examine or adduce evidence may not
automatically lead to violation of principles of natural justice.
The principles of natural justice cannot be placed in such a
rigid mould. The court, on facts of a case despite denial of
opportunity to lead evidence, may come to the conclusion that
reasonable opportunity has been afforded to the person
aggrieved. The principles of natural justice are flexible and
have to be examined in each case.
The question to be asked in the ultimate analysis would
be whether the person aggrieved was given a fair deal by the
authority or not? Could a reasonable person, under the
circumstances in which Tribunal was placed, pass such an
order? Answer to these questions would determine the fate of
the case.
We have no difficulty in accepting the contention that
there is a fundamental difference between an independent
elected member and the one who contests and wins on ticket
given by a political party. This difference is recognized by
various provisions of the Tenth Schedule. An independent
elected member of a House incurs disqualification when he
joins any political party after election as provided in paragraph
2(2) of the Tenth Schedule. There is also no difficulty in
accepting the proposition that giving of outside support by an
independent elected member is not the same thing as joining
any political party after election. To find out whether an
independent member has extended only outside support or, in
fact, has joined a political party, materials available and also
the conduct of the member is to be examined by the Speaker.
It may be possible in a given situation for a Speaker to draw
an inference that an independent member of the Assembly has
joined a political party. No hard and fast rule can be laid
down when the answer is dependent on the facts of each case.
It is also essential to bear in mind the objects for
enacting the defection law also, namely, to curb the menace of
defection. Despite defection a member cannot be permitted to
get away with it without facing the consequences of such
defection only because of mere technicalities. The substance
and spirit of law is the guiding factor to decide whether an
elected independent member has joined or not a political party
after his election. It would not be a valid plea for a person who
may have otherwise joined a political party to contend that he
has not filled up the requisite membership form necessary to
join a political party or has not paid requisite fee for such
membership. The completion of such formalities would be
inconsequential if facts otherwise show that the independent
member has joined a political party. The facts of the four
cases of independent elected members are required to be
examined in the light of these principles.
The facts have already been noticed earlier. We will now
briefly recapitulate what was alleged in the complaint filed on
15th June, 2004, the documents filed therewith, the additional
documents filed with the application dated 23rd June, 2004,
the proceedings that took place before the Speaker and what
has been held in the impugned orders by the Speaker.
It was alleged i9n the complaints which were served on
petitioners on 16th June, 2004 that they had joined the
political and legislature parties of Indian National Congress as
members thereof. The said fact had been widely reported in all
daily newspapers in English as well as vernacular language
dated 15th June, 2004. True copies of the news items as
published in newspapers reporting their having joined the
Indian National Congress were filed. According to those
reports, the leader of the Opposition in the State Assembly had
stated that these members were taken to Congress President
and had joined the said party. Copies of the news items as
appearing in '"The Tribune", "The Times of India", "Hindustan
Times", "Punjab Kesari" and "Dainik Jagran" were filed with
the complaints. It was further alleged that besides the news
reports appearing in the print media, actions of these
members joining the political and legislature parties of Indian
National Congress were widely reported by the electronic
media including Zee News television channel, Aaj Tak
television channel and Haryana News of Punjab Today
television channel.
Along with the application dated 23rd June, 2004,
affidavit of one Ashwani Kumar was filed before the Speaker
stating that he had seen these independent members
admitting and acknowledging in an interview to Zee News
television channel and Haryana News (Punjab Today Television
Channel) that they had joined the Indian National Congress.
The original C.Ds received from Zee Telefilms, true translation
into English of the transcript of the interview conducted by the
said channel and the original letter issued by Zee Telefilms
and handed over to Ashwani Kumar on his request were filed
on 23rd June, 2004. The original C.Ds received from Haryana
News channel along with English translation as above and the
original proceedings of the Congress legislative party in respect
of proceedings dated 16th June, 2004 at 11.30 a.m. in the
Committee room of Haryana Vidhan Sabha containing the
signatures of three out of four independent members were also
filed. It was stated that despite best efforts, the complainant
could not produce these documents on 15th June, 2004 and
was, thus, producing the same now along with the application.
In reply to the complaint and to the application, the
petitioners denied that they had joined the Indian National
Congress on 14th June, 2004 and stated that the newspapers
have not reported correct facts and that they have not filled up
the requisite form and paid the subscription to become
members of the Indian National Congress and they only
decided to withdraw the support from the ruling party by
joining hands with the Congress. It was further stated that
they will cross-examine the complainant and reporters of the
print media and T.V. Channels and also lead evidence to prove
that they have not joined any political party much less Indian
National Congress. In reply to the application, it was stated
that on 24th June, 2004 written request was made by the
counsel for grant of three weeks' time to file the reply but
Speaker ordered that reply be filed on 25th June, 2004 by 10
a.m. and they were not provided fair opportunity to contest the
petition. It was also pleaded that alleged recording in the C.Ds
is not genuine. In respect of the signatures as appearing in
the photocopy of the proceedings register of the Congress
legislature party, it was also denied that Annexure P1 is the
photocopy of the original page of the proceedings register of
the said legislature party in respect of proceeding held on 16th
June, 2004.
It has to be noted that on 24th June, 2004 counsel
representing the petitioners were asked by the Speaker to
watch the interviews conducted in New Delhi on 14th June,
2004 by Zee News and Haryana News (Punjab Today
Television Channel) which was available on the compact disc
as part of the additional evidence with application dated 23rd
June, 2004 filed by the complainant. The counsel, however,
did not agree to watch the recording which was shown on
these two channels. The copies of the application dated 23rd
June, 2004 were handed over to the counsel and they were
asked to file the reply by 10 a.m. on 25th June, 2004. In the
replies, petitioners merely denied the contents of the
application without stating how material by way of additional
evidence that had been placed on record was not genuine.
It is evident from the above facts that the petitioners
declined to watch the recording, failed to show how and what
part of it, if any, was not genuine but merely made general
denials and sought permission to cross-examine Ashwani
Kumar and opportunity to lead evidence.
The Speaker considered the request of the petitioners for
grant of three weeks' time in this factual backdrop and
disallowed it and this is the basis of the contention that the
petitioners have been denied a reasonable opportunity to lead
evidences and, therefore, rules of natural justice have been
violated and, thus, the impugned orders of their
disqualification are nullities.
The sufficiency of the time granted depends upon the
facts and circumstances of each case. Having regard to the
facts as noticed hereinbefore, we are unable to accept the
contention that in the present case, the petitioners were not
granted sufficient time to meet the case against them.
It has to be remembered that the specific averment in
respect of materials filed had already been made in the
complaint dated 15th June, 2004. The material filed on 23rd
June, 2004 was supplementary to further support the
allegations in the complaint dated 15th June, 2004. The
petitioners despite grant of opportunity had declined to watch
the recorded interview. It is one thing to watch the interview,
point out in what manner the recording was not genuine but
instead of availing of that opportunity, the petitioners
preferred to adopt the course of vague denial.
Under these circumstances, the Speaker concluded that
"there is no room for doubting the authenticity and accuracy
of the electronic evidence produced by the petitioner". The
Speaker held :
"In this regard, it is to be noted that the
petitioner has produced the original Compact
disks (CDs), containing the interviews
conducted by Zee News and Haryana News
(Punjab Today Television channel) of the six
independent Members of the Haryana Vidhan
Sabha including the respondent and the same
have been duly certified by both the Television
Channels as regards its contents as well as
having been recorded on 14.6.2004 at New
Delhi. It has also been certified by both the
Television Channels through their original
letters (P-9 and P-12) duly signed by their
authorized signatures that the original CDs
were handed over to Ashwani Kumar who was
authorized by the petitioner in this regard and
whose affidavit is also on the record as
Annexure P-8 wherein he states that he had
handed over the original CDs to the petitioner.
The letters, Annexures P-9 and P-12, also give
out that the coverage of their interviews on
14.6.2004 was also telecast by both the
Television Channels. In fact, the certificate
given by the Haryana News (Punjab Today
Television Channel) authenticates the place of
the interview as the residence of Mr. Ahmed
Patel at 23, Mother Teresa Crescent in Delhi
which interview as per the certificate was
conducted by the correspondent of the said
Television Channel, namely Shri Amit Mishra
on 14.6.2004. the same certificate P-12 also
authenticates the coverage of the CLP meeting
held in Chandigarh on 16.6.2004 conducted
by their correspondent Mr. Rakesh Gupta.
Therefore, the electronic evidence which as per
the petitioner is supplementary to the evidence
of Print Media already on the record deserves
to be taken on the record as it is admissible as
per law."
The Speaker after holding that the petitioners have made
vague allegations, without producing in support any material
and evidence, has further concluded as under :
"As there is no controversy regarding the
status of the respondent from February
2000 and before 14.6.2004, the dispute
primarily arises regarding his true status
as on 14.6.2004 onwards. In order to
resolve the matter, the evidence produced
and placed on the record by the petitioner
has to be considered. The petitioner has
placed on record firstly the news items
appearing on 15.6.2004 in the various
leading newspapers (popularly labeled as
the "Print Media") as Annexures P-1 to
P-7. A perusal of the same reveals the
reporting that six independent Members
of the Haryana Vidhan Sabha were taken
to Ms. Sonia Gandhi, the Congress
President on 14.6.2004 by Mr. Ahmed
Patel and Mr. Bhupinder Singh Hooda,
Congress M.P. and thereafter, it was
reported that on 14.6.2004, all the six
Members of the Haryana Vidhan Sabha
mentioned therein, (including the
respondent) had joined the Congress
Party. This documentary evidence is
corroborated by the electronic evidence
placed on the record by the petitioner in
the form of the original Compact Disks
(CDs) containing the interviews
conducted by Zee News and Haryana
News (Punjab Today Television Channel)
of the six independent Members of the
Haryana Vidhan Sabha including the
respondent which show that on
14.6.2004 at 23, Mother Teresa Crescent
Road, New Delhi the six independent
Members of Haryana Vidhan Sabha
(including the respondent) joined the
Indian National Congress Party. As per
the certificates by both the Television
Channels, which are on record as (P-9
and P-12), the said interviews were
telecast on Zee News Television Channel
at 5.00 p.m. On 14.6.2004 and on
Haryana News (Punjab Today Television
Channel) on 14.6.2004 at 10 P.M. and on
15.6.2004 at 10 A.M. The petitioner has
also placed on record the original CD
received from Haryana News (Punjab
Today Television Channel), which shows
its coverage of the meeting of the CLP on
16.6.2004 at Chandigarh. Although an
opportunity was given to the Learned
Counsel representing the respondent to
watch/view the electronic evidence placed
on the record by the petitioner, the said
opportunity was not availed of. A viewing
of the entire electronic record considered
along with the supporting evidence
placed on the record clearly leads this
Authority inter-alia to the following
conclusions:
(i) Six independent Members of the
Haryana Vidhan Sabha are clearly
seen and heard acknowledging and
admitting to their interviewers,
including Mr. Amit Mishra of
Haryana News (Punjab Today
Television Channel) that they had
joined the Congress Party on
14.6.2004.
(ii) These six independent Members of
the Haryana Vidhan Sabha are:
1. Shri Bhim Sain Mehta, MLA
2. Shri Jai Parkash Gupta, MLA
3. Shri Mula Ram, MLA
4. Shri Rajinder Singh Bisla, MLA
5. Shri Dariyab Singh, MLA
6. Shri Dev Raj Deewan, MLA
(iii) The above named six Members of
Haryana Vidhan Sabha were
interviewed by Zee News Television
Channel and Haryana News (Punjab
Today Television Channel) on
14.6.2004 at 23, Mother Teresa
Crescent, New Delhi which interview
was witnessed by Shri Ashwani
Kumar as corroborated by him.
(iv) All the above named six members
are seen in the company of Senior
Congress Party Functionaries and
Leaders during the course of the
above said interviews by the
Television Channels, wherein they
admitted and acknowledged the fact
that they had joined the Congress
Party.
(v) Out of the above named six
Members, three members, namely,
Shri Dev Raj Deewan, Shri Rajinder
Singh Bisla and Shri Jai Parkash
Gupta are seen participating in the
meeting of the CLP held on
16.6.2004 in the premises of the
Haryana Vidha Sabha."
In the impugned orders, respondent No. 2 has further
noted that while examining and considering the aforenoted
electronic evidence, he was fortified by the fact that being the
Speaker of the Haryana Vidhan Sabha, on many occasions as
well as during the Sessions of the House, he has seen and
heard these members. He found that these members as seen
and heard in the electronic evidence are genuinely identified
as also their voices which are easily and clearly identified. The
Speaker, thus, held that in view of the irrefutable and
overwhelming documentary and electronic evidence, no other
conclusion was possible than that on 14th June, 2004 these
independent members of Haryana Vidhan Sabha joined the
Congress Party. He has also referred to the documentary
evidence regarding CLP meeting held on 16th June, 2004 in the
form of original sheet of proceedings register of CLP containing
the signatures of the petitioners. In respect of the signatures
also, the Speaker has noted that the signatures of the
petitioners on the original sheet of the CLP proceedings are the
same as their signatures on the Vakalatnama filed by their
counsel as is clear after comparison.
It was strenuously contended by learned counsel for the
petitioners that the Speaker while passing the impugned
orders has relied upon his personal knowledge which is wholly
impermissible for a tribunal and contrary to the principles of
fair play and violative of principles of natural justice. In
support, reliance is placed on the case of Dewan Singh v.
Champat Singh and Ors. [(1969) 3 SCC 447] where this
Court considered misconduct of the arbitrators who decided
the disputes referred to them on the basis of their personal
knowledge. On consideration of the arbitration agreement, it
was held by this Court that it does not empower the
arbitrators either specifically or by necessary implication to
decide the disputes referred to them on the basis of their
personal knowledge.
The principles laid down in the above case, have no
application to the facts of the present case. The two situations
have no similarity. The Speaker has only noticed that he has
had various opportunities to see the petitioners in the
Assembly and those shown in the recording are the same
persons. We are unable to find fault with this course adopted
by the Speaker. There is also nothing wrong or illegal in
comparing signatures and coming to the conclusion that the
same are that of the petitioners. These proceedings before the
Speaker are not comparable with the arbitration proceedings
before arbitrators.
Undoubtedly, the proceedings before the Speaker which
is also a tribunal albeit of a different nature have to be
conducted in a fair manner and by complying with the
principles of natural justice. However, the principles of
natural justice cannot be placed in a strait-jacket. These are
flexible rules. Their applicability is determined on the facts of
each case. Here, we are concerned with a case where the
petitioners had declined to avail of the opportunity to watch
the recording on the compact disc. They had taken vague
pleas in their replies. Even in respect of signatures on CLP
register their reply was utterly vague. It was not their case
that the said proceedings had been forged. The Speaker, in
law, was the only authority to decide whether the petitioners
incurred or not, disqualification under the Tenth Schedule to
the Constitution in his capacity as Speaker. He had obviously
opportunity to see the petitioners and hear them and that is
what has been stated by the Speaker in his order. We are of
the view that the Speaker has not committed any illegality by
stating that he had on various occasions seen and heard these
MLAs. It is not a case where the Speaker could transfer the
case to some other tribunal. The doctrine of necessity under
these circumstances would also be applicable. No illegality
can be inferred merely on the Speaker relying upon his
personal knowledge of having seen and heard the petitioners
for coming to the conclusion that persons in the electronic
evidence are the same as he has seen and so also their voices.
Thus, even if the affidavit of Ashwani Kumar is ignored in
substance it would have no effect on the questions involved.
Now, we may also note as to what is stated in the
interviews on the News Channel.
"PETITIONER- DEV RAJ DIWAN:
ZEE NEWS CORRESPONDENT
Why have you decided to join Congress Party?
SHRI DEV RAJ DIWAN:
I was basically Congressman. I have been in
Congress, I have struggled for the sake of Congress
and worked for the Congress. Moreover, my family
has given blood for the Congress. Secondly, due to
some reasons, I was not given Congress party ticket
in 1996 and I contested election as an independent
candidate. Thereafter, in 1997, I joined Congress
Party. Again, I was not given Congress Party ticket
and in 2000. I again contested election as an
independent candidate and won the election. I was
Congressman. I have affection and friendly relation
with Hooda ji. I was looking for the opportunity to
join the Congress Party. Hooda Ji has shown love,
Smt. Sonia Ganhi Ji has bestowed her blessings
and we have joined the Congress Party. Now, we will
serve the Congress Party.
ZEE NEWS CORRESPONDENT
In case you are not given Congress Party ticket this
time, will you leave the party again?
SHRI DEV RAJ DIWAN:
No, now we have got blessings. Now, we will serve
the Congress Party physically, mentally and
financially and will work only for the Congress
Party.
SHRI DEV RAJ DIWAN:
Dev Raj Diwan, MLA from Sonepat. I was
congressman and in 1996, I was not given party
ticket due to some reasons. I contested elections as
an independent candidate and I won the election
too. I topped the elections in 1996 by getting
maximum votes. Thereafter, I joined Congress Party
in 1997. In 2000, due to some reasons, I was not
given Congress Party ticket and again I contested
elections as an independent candidate. I was again
elected as MLA by the people. I am basically
(Khaandani) Congressman. My whole of the family
has given blood for the sake of Congress Party. We
are Congressman since the time of Shri Sanjay
Gandhi. We stood with Shri Rajiv Gandhi Ji. The
whole country has been impressed by Smt. Sonia
Gandhi with her sacrifice. Keeping in view all these
factors, we requested Hooda Ji in this context. Now
when such sacrificing leaders have come in India,
we also want to serve Congress Party. Smt. Sonia Ji
has given her blessings. We will serve the Congress
Party physically, mentally and financially from very
today.
HARYANA NEWS CORRESPONDENT
Have you imposed any condition for that?
SHRI DEV RAJ DIWAN
Condition for what? We have come only to serve the
Congress Party being an MLA, we have already been
serving the people of Constituency. Now we will
serve Congress Party and will also serve people of
Constituency while remaining in Congress. Thank
you.
PETITIONER- RAJINDER SINGH BISLA:
ZEE NEWS CORRESPONDENT
Why have you decided to join Congress Party at the
time when assembly general elections are drawing
near?
SHRI RAJINDER SINGH BISLA: -
We have decided to join Congress Party keeping in
view the conditions of the country because
dedicated and right forces can fight against the
communal forces only under the leadership of Smt.
Sonia Gandhi. Today, after meeting Smt. Sonia
Gandhi, we have joined Congress Party under the
leadership of Shri Bhupinder Singh Hooda. Now,
we will serve and strengthen the Congress Party
physically, mentally and financially.
SHRI RAJINDER SINGH BISLA:
Rajinder Singh Bisla, MLA, Ballabhgarh.
HARYANA NEWS CORRESPONDENT
On which conditions, you have joined the
Congress Party?
SHRI RAJINDER SINGH BISLA:
We have not imposed any condition to join the
Congress Party. During my longest political life, I
was elected as an independent MLA in 1977. In
1991, I was given Congress Party ticket by Shri
Rajiv Gandhi. I had been President of District
Congress Committee, Faridabad. I had been on
some important posts of the organization. This
time, I was not given Congress Party ticket from
Ballabhgarh. The people gathered in huge number
(in the shape of big Panchayat) and they elected me
as an independent MLA with maximum votes. The
people of my Constituency who elected me, keeping
in view the conditions of Haryana State as well as
conditions of our country, reposed faith in the
leadership of Smt. Sonia Gandhi and having faith
therein. We met Smt Sonia Gandhi and joined
Congress Party under he leadership of Shri
Bhupinder Singh Hooda. We will serve the
Congress Party. We have entered into politics for
the purpose of serving people.
PETITIONER- JAI PARKASH GUPTA:
ZEE NEWS CORRESPONDENT
Jai Parkash Ji, why have you taken decision to join
Congress Party at this stage. You all were
supporting Chautala Government so far.
SHRI JAI PARKASH GUPTA:
Since by birth, we are with Congress and our family
has been with Congress for the last three decades.
We are members of Congress. We cannot breathe
without Congress Party. Last time, I was Legislator
and thereafter, during elections, I was not given
Congress Party ticket due to some reasons. Then, I
contested assembly elections as an independent
candidate and was elected by the people too. Today
we have come back to our home. We have got
inspiration from Smt. Sonia Gandhi who has
sacrificed and has put an example. She has
sacrificed the chair of Prime Minister, which she
could have and made Sardar Manmohan Singh as
Prime Minister. By coming back to our home, we
have again joined Congress Party under the
command of Smt. Sonia ji, Hooda Sahib and Ahmed
Sahib. Today we have become associate members
of Congress Party.
HARYANA NEWS CORRESPONDENT
Whether you have joined Congress Party under
pressure or with your own willing?
SHRI JAI PARKASH GUPTA
We are veteran Congressmen. Our family is
Congressman so far and have been members of
Congress Party for the last three decades. After
1996, last time in 2000-Assembly Elections, there
has been some problem with me in getting party
ticket. Public brought forth me as an independent
candidate and I won elections as an independent
candidate. Smt. Sonia Gandhi has made a great
sacrifice as she did not accept the chair of Prime
Minister and put an example in the world. She has
made Sardar manmohan Singh as Prime Minister.
We have been impressed by this step of Smt. Sonia
Gandhi and, therefore, we have come back to our
home. We will be in the Congress Party as follower
of Smt. Sonia Gandhi and abide by the dictates of
Smt. Sonia Gandhi as workers of Congress Party
and will step forward in unity while remaining in
Congress Party.
PETITIONER- BHIM SAIN MEHTA:
HARYANA NEWS CORRESPONDENT
Your good name please?
SHRI BHIM SAIN MEHTA:
I, Bhim Sain Mehta, MLA from Indri, District Kaul.
I was elected as an independent MLA for last two
consecutive terms. It is a matter of great happiness
that we have joined our original home because my
initial entry into politics has been in Congress
Party. In 1979, I had been President of Congress
Party. Thereafter, I had been in Congress. Today, I
am happy to see that we have joined Congress Party
under the leadership of Smt. Sonia Gandhi who is
idol of sacrifice. By reposing faith in her leadership,
we all have joined Congress Party, today selflessly
and we don't have any expectations. We will abide
by the dictates of Smt. Sonia Gandhi Ji."
In view of the aforesaid statements and absence of any
explanation, let alone reasonable explanation, except only
vague and general pleas and denials by the petitioners in their
stand before the Speaker, they cannot be heard to say that
they have been deprived of reasonable opportunity or there is
violation of rules of natural justice.
From the facts and circumstances of the case and the
conduct of the petitioners, it can be reasonably inferred that
they were only interested in prolonging the proceedings
beyond 28th June, 2004, the date fixed for Rajya Sabha
elections. The argument that the Speaker passed the
impugned order in haste as voting for Rajya Sabha elections
was fixed for 28th June, 2004 is a double edged one since the
petitioners were interested in prolonging the proceedings
beyond 28th June, 2004 and the Speaker wanted to decide
before it, if the petitioners had incurred disqualification under
the Tenth Schedule.
Relying upon the case of Narayan Bhagwantrao Gosavi
Balajiwale v. Gopal Vinayak Gosavi and Ors. [(1960) 1
SCR 773], it was sought to be contended on behalf of the
petitioners that the admissions allegedly made before the
media could be explained and shown as erroneous and not
binding on them and, therefore, opportunity ought to have
been granted to them to prove so and the failure to grant
opportunity vitiates the impugned orders. The petitioners had
failed to plead how the admissions/statements made by them
were erroneous. Had they done so, then the question of its
proof would have arisen. Instead of so doing, the petitioners
only took shelter under the general vague denial pleading that
they wish to adduce evidence. It is also to be remembered as
observed by the Supreme Court in the aforesaid case, that
admission is the best evidence that can be relied upon, and
though not conclusive, is decisive of the matter, unless
successfully withdrawn or proved erroneous. The petitioners
have failed to satisfy the later part.
Undoubtedly, the Speaker has to comply with the
principles of natural justice and cannot pass an order on the
basis of pre-determination but in the present case, it cannot
be held that the impugned order suffers from any such
infirmity. We are unable to accept the contention that the
petitioners were not given a fair deal by the Speaker and
principles of natural justice have been violated.
It was also contended that paragraph 2(2) of the Tenth
Schedule deserves to be strictly construed. The submission is
that the word 'join' in Paragraph 2(2) deserves a strict
interpretation in view of serious consequences of
disqualification flowing therefrom on an order that may be
made by the Speaker. Paragraph 2(2) of the Tenth Schedule
reads as under:
"2(2). An elected member of a House who
has been elected as such otherwise than
as a candidate set up by any political
party shall be disqualified for being a
member of the House if he joins any
political party after such election."
As noted earlier, the object of the defection law has to be
borne in mind. The question to be considered is whether a
member formally joining a political party is the requirement so
as to earn disqualification or the factum of joining can be
inferred from facts and conduct of a member, without a
member formally joining a political party inasmuch as not
filling form required to be filled by a member of the political
party under the rules and regulations of that party or payment
of any prescribed fee. The respondents pleaded for a liberal
construction and submitted that inference from conduct was
sufficient to establish that an independent member has joined
a political party. These are two extreme views on the issue.
We are of the view that to determine whether an
independent member has joined a political party the test is not
whether he has fulfilled the formalities for joining a political
party. The test is whether he has given up his independent
character on which he was elected by the electorate. A mere
expression of outside support would not lead to an implication
of a member joining a political party. At the same time, non-
fulfillment of formalities with a view to defeat the intent of
paragraph 2(2) is also of no consequence. The question of fact
that a member has given up his independent character and
joined, for all intent and purposes, a political party though not
formally so as to incur disqualification provided in paragraph
2(2) is to be determined on appreciation of the material on
record.
Applying this test here, it cannot be held that the
Speaker committed any illegality in coming to the conclusion
that the petitioners had joined the Indian National Congress.
The conclusions reached by the Speaker cannot be held to be
unreasonable, assuming that two views were possible.
Under the aforesaid circumstances, we are unable to find
any illegality in the impugned orders holding that the
petitioners (in Writ Petition Nos. 290, 291, 293 and 294 of
2004) have incurred disqualification as provided in paragraph
2(2) of the Tenth Schedule of the Constitution of India.
Now, we revert to the disqualification of the petitioners in
Writ Petition Nos. 287 and 292 of 2004. It is not disputed
that these petitioners have joined Indian National Congress.
As already noted, these petitioners were lone members
representing their respective parties in the Legislative
Assembly. The Speaker in their cases has held that the
protection of paragraph 3 of the Tenth Schedule is not
available to a single member party. According to the
petitioners, they are covered by the protected umbrella of
paragraph 3 of the Tenth Schedule. The petitioners have been
disqualified by the impugned order in exercise of power under
paragraph 2(1) and paragraph 6. Paragraph 2(1) is subject to
paragraphs 3, 4 and 5.
In the present case, the question is of interpretation of
paragraph 2(1) and paragraph 3 of the Tenth Schedule which
read as under:
"2. Disqualification on ground of
defection- (1) Subject to the provisions of
paragraphs 3, 4 and 5, a member of a House
belonging to any political party shall be
disqualified for being a member of the House
(a) if he has voluntarily given up his
membership of such political party; or
(b) if he votes or abstains from voting in
such House contrary to any direction
issued by the political party to which he
belongs or by any person or authority
authorized by it in this behalf, without
obtaining, in either case, the prior
permission of such political party, person
or authority and such voting or
abstention has not been condoned by
such political party, person or authority
within fifteen days from the date of such
voting or abstention.
3. Disqualification on ground of defection
not to apply in a case of split - Where a
member of a House makes a claim that he and
any other members of his legislature party
constitute the group representing a faction
which has arisen as a result of a split in his
original party and such group consists of not
less than one third of the members of such
legislature party,-
(a) he shall not be disqualified under sub-
paragraph (1) of paragraph 2 on the
ground
(i) that he has voluntarily given up his
membership of his original political
party; or
(ii) that he has voted or abstained from
voting in such House contrary to
any direction issued by such party
or by any person or authority
authorized by it in that behalf
without obtaining the prior
permission of such party, person or
authority and such voting or
abstention has not been condoned
by such party, person or authority
within fifteen days from the date of
such voting or abstention; and
(b) from the time of such split, such faction
shall be deemed to be the political party
to which he belongs for the purposes of
sub-paragraph (1) of paragraph 2 and to
be his original political party for the
purposes of this paragraph."
The case of the petitioners is that each of them constitute
a group representing a faction which has arisen as a result of
split in their respective original political parties and this group
consist of not less than one third of the members of the
legislature party. They say that this group consists of 100%
since both of them were the only members of the legislature
party in the Assembly and the requirement of paragraph 3 is
that the group to be entitled to the protection of the said
paragraph is to be of not less than 'one third' of the members
of such legislature party. They say that 100% is more than
one third and even otherwise when group of not less than one
third is protected, the paragraph cannot be interpreted in a
manner which will deprive a group of 100% of the protection.
The submission is that once the sole member of a party is
recognized by Speaker as constituting the legislature party in
the Vidhan Sabha, the benefit of paragraph 3 has to be given
to the said sole member as it would be a case of more than
one-third members of the legislature party representing the
group.
In the first paragraph of the Tenth Schedule, expressions
'legislature party' and 'original political party' have been
defined which read as under :
"1. Interpretation.In this Schedule,
unless the context otherwise requires,
(a) .
(b) 'legislature party', in relation to a
member of a House belonging to any
political party in accordance with
the provisions of paragraph 2 or
paragraph 3 or, as the case may be,
paragraph 4, means the group
consisting of all the members of that
House for the time being belonging
to that political party in accordance
with the said provisions;
(c) 'original political party', in relation
to a member of a House, means the
political party to which he belongs
for the purposes of sub-paragraph
(1) of paragraph 2;
(d) ."
The reliance of the petitioners is on the words 'unless the
context otherwise requires'. The contention is that in the
context of a recognized single member legislature party, the
definition has to be adopted suitably so as not to deny the
benefit of paragraph 3 to a sole member constituting the
legislature party of a political party.
The question, however, is not only of the definition of the
expression 'legislature party' or of the words 'unless the
context otherwise requires' in paragraph 1 of the Tenth
Schedule, but is also of the interpretation of paragraph 3
under which protection is sought by the petitioners.
The words in paragraph 3 are 'he and any other members
of his legislature party'. The further requirement is of such
members constituting 'the group' representing a faction. It is
the group which has to represent a faction which has arisen
as a result of split in the original political party. It is such
'group' which is to consist of not less than one third of the
members of such legislature party. The question also is as to
the interpretation of the expression 'original political party'
mentioned in paragraph 3. Further, the contention is that for
the applicability of paragraph 3, mere making of a claim about
the split is sufficient and nothing more is required to be shown
in so far as split is concerned. The submission is that mere
making of claim as to the split would entitle a member to the
protection of Paragraph 3 subject, of course, to the fulfillment
of other conditions laid therein.
The petitioner Jagjit Singh (Writ Petition No. 287/2004)
was a sole elected member of the political party 'NCP'. He
claims that there was a split in the national unit of 'NCP' as a
result whereof a political party named Democratic Dal of
Haryana was formed on 20th December, 2003. On 29th
December, 2003 the petitioner intimated the Speaker about
the split and formation of the new political party and
requested the Speaker to accept the new legislature party and
treat the petitioner as a member of the said party. On 31st
December, 2003 respondent No. 3 filed a complaint before the
Speaker respondent No. 2 alleging disqualification on the
ground that the petitioner has incurred disqualification by
voluntarily defecting from 'NCP' and founding/joining the
Democratic Dal of Haryana. On 30th April, 2004 Democratic
Dal of Haryana is said to have merged with the Indian National
Congress in accordance with paragraph 4 of the Tenth
Schedule. The petitioner, for a long time, could not be served
with the notices issued by the Speaker on the complaint of
respondent No.3. The impugned order notices steps that had
to be taken for effecting substituted service on the petitioner.
Ultimately, he was served on 5th June, 2004. Thereafter, the
petitioner has been repeatedly seeking adjournments in
proceedings before the Speaker. He, however, filed an interim
reply on 16th June, 2004 and sought four weeks' time on the
ground that due to summer vacation of the Court, senior
advocates were not available. Petitioner has further alleged
that he received a telephone call from the Speaker on 24th
June, 2004 when the Speaker told him that if he abstains
from voting in Rajya Sabha, the disqualification can be
avoided. The impugned order disqualifying the petitioner on
account of defection was passed on 25th June, 2004 under
paragraph 2(1)(a) of the Tenth Schedule.
The facts in the case of Karan Singh Dalal (Writ Petition
No. 292/2004) are almost identical except that he belonged to
Republican Party of India (RPI), in respect whereof a similar
split as in the case of Jagjit Singh was made with the same
dates and same reasons.
The question for determination is about the applicability
of paragraph 3 of Tenth Schedule to the petitioner on the facts
abovenoticed, namely, applicability of protection of paragraph
3 to a single member party in a legislatiure.
Paragraph 3 requires the following conditions to be
complied with :
(a) a split in the original political party giving rise to a
faction; and
(b) faction is represented by group of MLAs in the House
which consists of not less than one-third of the members
of such legislature party.
Re. (a)
The submission urged on behalf of the petitioners is that
only requirement of this paragraph is that a claim of split is
made by the member of the House and it is not the
requirement to even prima facie show that such claim is
correct or not. The disqualification under paragraph 2(1)(a) is
incurred when a member of the House voluntarily gives up
membership of his original political party. Paragraph 2 is,
however, subject to paragraph 3 of the Tenth Schedule. If
conditions of paragraph 3 are satisfied, despite giving up
membership voluntarily, a member would not incur
disqualification under paragraph 2. Paragraph 3 proceeds on
the assumption that but for the applicability of the said
provision the disqualification under paragraph 2 would be
attracted. The burden to prove the requirements of paragraph
2 is on the person who claims that a member has incurred the
disqualification. The burden to prove the requirements of
paragraph 3 is on the member who claims that there has been
a split in his original political party and for that reason
disqualification under paragraph 2 is not attracted. In Ravi S.
Naik, it was observed that :
"In the present case Naik has not
disputed that he has given up his
membership of his original political party
but he has claimed that there has been a
split in the said party. The burden,
therefore, lay on Naik to prove that the
alleged split satisfies the requirements of
paragraph 3. The said requirements are:
(i) The member of a House should
make a claim that he and other
members of his legislature party
constitute the group representing a
faction which has arisen as a result
of a split in his original party; and
(ii) Such group must consist of not less
than one-third of the members of
such legislature party."
Learned counsel for the petitioner, however, relies upon
paragraph 37 in Ravi S. Naik's case in support of the
submission that only a claim as to split has to be made and it
is not necessary to prove the split. The said observations are :
"In the present case the first requirement
was satisfied because Naik has made
such a claim. The only question is
whether the second requirement was
fulfilled."
The observations relied upon are required to be
appreciated in the light of what is stated in the next
paragraph, i.e., paragraph 38, namely :
"As to whether there was a split or not
has to be determined by the Speaker on
the basis of the material placed before
him."
Apart from the above, the acceptance of the contention
that only claim is to be made to satisfy the requirements of
paragraph 3 can lead to absurd consequences besides the
elementary principle that whoever makes a claim has to
establish it. It will also mean that when a claim as to split is
made by a member before the Speaker so as to take benefit of
paragraph 3, the Speaker, without being satisfied even prima
facie about the genuineness and bonafides of the claim, has to
accept it. It will also mean that even by raising a frivolous
claim of split of original political party, a member can be said
to have satisfied this stipulation of paragraph 3. The
acceptance of such broad proposition would defeat the object
of defection law, namely, to deal with the evil of political
defection sternly. We are of the view that for the purposes of
paragraph 3, mere making of claim is not sufficient. The
prima facie proof of such a split is necessary to be produced
before the Speaker so as to satisfy him that such a split has
taken place.
In the present case, the Speaker has held that the
petitioner has failed to satisfy that split in the original party,
namely, NCP had taken place. According to the petitioner, he
had formed/joined a new political party on 20th December,
2003 having been elected on the ticket of NCP in February
2000. On 20th December, 2003, a new political party by the
name of Democratic Congress Party of Haryana was formed.
The petitioner voluntarily gave up membership of NCP on 20th
December, 2003 and joined this newly formed party. On these
facts, the disqualification of voluntarily giving up membership
of NCP stands attracted subject to the claim of the petitioner
under paragraph 3. The petitioner had to prove that the
stipulations of paragraph 3 are satisfied. The Speaker has
held that no valid proof or evidence was placed on record to
show that split had indeed taken place in NCP on 20th
December, 2003 or at any other time. It has further been
noted by the Speaker that several times the respondent had
been asked the names and addresses of the office bearers of
the original political party at the National and State level as
well as the names and addresses of the office bearers of the
NCP who attended the meeting in which resolution dated 20th
December, 2003 was passed. The petitioner, despite
opportunity, did not give any satisfactory response or reply in
this regard. The Speaker further held that it is only in the
original party of NCP, the split had to be proved and not in the
Legislative Party of Haryana. The complainant had specifically
taken the plea in the complaint that no such split in NCP had
taken place. The reply of the petitioner to the said assertion is
that he is only claiming that a split was caused by the party
workers in the original political party on 20th December, 2003
and that information had been sent to the Speaker as well as
to the Election Commission of India. The Speaker, on the
basis of material on record, has come to the conclusion that
the petitioner was wanting to treat his own defection allegedly
supported, according to the petitioner, by some party workers
at local level as a split in his original political party. Such a
plea was not accepted by the Speaker. We think the Speaker
is right. Such a split, if held to be valid for the purposes of
paragraph 3, would defeat the very purpose of the law. The
requirement is not the split of the local or State wing of
original political party but is of original political party as
defined in paragraph 1(c) of the Tenth Schedule read with the
explanation in paragraph 2(1) to the effect that 'an elected
member of a House shall be deemed to belong to the political
party, if any, by which he was set up as a candidate for
election as such member'.
In support of the contention that for the purposes of
paragraph 3 of the Tenth Schedule, the split in a State unit is
the requirement, reliance has been placed on a Full Bench
decision of Punjab High Court in the case of Madan Mohan
Mittal, MLA v. The Speaker, Punjab Vidhan Sabha [The
Punjab Law Reporter Vol.CXVII (1997-3) page 374)]. In the
said case, it was held :
"A reading of these provisions clearly
indicate that importance was given to the
House of the Legislative Assembly of the
State. The original political party in
relation to a member of the House is the
political party to which he belongs. Thus,
it is clear that the Parliament intended to
treat the State unit of a political party as
a separate entity for the purpose of
determining whether there is any
disqualification of a member of the House
of that State Legislature. It is further
made clear that in the case of split one-
third members of the State Legislature
belonging to that political party must
form a group to make the split effective
within the State Legislature. Likewise for
the purpose of (sic) merger within the
meaning of paragraph 4, two-thirds of the
members of the State Legislature party
must have agreed to such merger. Thus,
while deciding the disqualification of the
member of the State Legislature the
events that have taken place at the
national level have no concern to decide
whether there is a split or (sic) merger. To
elucidate this point one may take the
case of split of a national political party at
the national level but in a particular State
the members of that political party do not
want to split and they want to continue
the State unit intact. In such an event
the split or events that have taken place
at the national level of the political party
will have no effect on the State unit of
that political party and the political party
at the State level continues to be in the
original form. Likewise there may not be a
split at the national level but at the State
level there may be a split in the State unit
of that political party and one-third of the
members of the State Legislature
constitute the group representing the
faction as a result of the split in the State
unit of the political party. Then the split
comes into existence even though there is
no split as such at the national level. The
scheme of Tenth Schedule is to be looked
from the point of view of State units of
political parties when the question of
disqualification arises within the State
Legislative Assembly. Thus, according to
us if there is a split of a political party at
the State level and one-third members of
the Legislature party of that political
party at the State level consists of the
group representing that faction which
splits away from the original political
party then the split comes into existence
and is effective."
The Full Bench, in the above case, was considering the
legality of the Order of the Deputy Speaker of Punjab
Legislative Assembly whereby he declined to declare
Respondent Nos.3 and 4 as disqualified under paragraph 2 of
Tenth Schedule. The said respondents were candidates put
up by Bhartiya Janata Party in assembly elections held in
February 1992 in which they were elected. According to the
petitioner, these members joined Congress (I) party. The
petitioner before the High Court was a leader of the original
political party, i.e., Bhartiya Janata Party. Legislature Party
made a complaint to Speaker to disqualify these members and
stated that there was no split in the party as claimed by
Respondents 3 and 4. The Deputy Speaker, however, held
that there was split in the party and the original party had six
seats and respondents 3 and 4 constitute one-third members
of the Legislature party and, therefore, they are not
disqualified in view of paragraph 3 of the Tenth Schedule and
their original political party would be Bhartiya Janata Party
(Punjab). The Full Bench, after rightly holding that 'the
original political party in relation to a member of the House is
a political party to which he belongs' erroneously held that 'the
Parliament intended to treat the State unit of a political party
as a separate entity for the purpose of determining whether
there is any disqualification of a member of the House of that
State Legislature'. In the case of split, one-third members of
State Legislature belonging to that political party must form a
group to make the split effective within the State Legislature
but it does not lead to the conclusion that the Parliament
intended to treat State Unit of a political party as a separate
entity for the purposes of the benefit of paragraph 3.
Paragraph 1(c) defining original political party and explanation
as given in paragraph 2(1) have already been noticed
hereinbefore. It is clear from a bare reading thereof that the
elected member belongs to the political party by which he is
set up as a candidate for election as such member. From the
plain language of these provisions, it cannot be held that for
the purposes of the split, it is the State Legislature party in
which split is to be seen. If a member is set up by a National
Party, it would be no answer to say that events at National
level have no concern to decide whether there is a split or not.
In case a member is put up by a National Political party, it is
split in that party which is relevant consideration and not a
split of that political party at the State level.
We may also refer to the decision in G. Viswanathan v.
Hon'ble Speaker Tamil Nadu Legislative Assembly,
Madras & Anr. [(1996) 2 SCC 353], the observation whereof
clearly show that the relevant factor is of the political party by
which a member is set up as a candidate for election as such
member. It would be useful to reproduce paragraph 13 from
the said judgment :
"Mr. Shanti Bhushan laid stress on
paragraph 1(b) of the Tenth Schedule and
contended that the Legislative Party in
relation to a member of a House
belonging to any political party means the
group consisting of all the members of
that House for the time being belonging
to that political party, and so understood,
the appellants who were thrown out or
expelled from the party, did not belong to
that political party nor will they be bound
by any whip given by that party, and so,
they are unattached members who did
not belong to any political party, and in
such a situation the deeming provision in
sub-paragraph (a) of the explanation to
paragraph 2(1) will not apply. We are
afraid it is nothing but begging the
question. Paragraph 1(b) cannot be read
in isolation. It should be read along with
paragraphs 2, 3 and 4. Paragraph 1(b) in
referring to the Legislature Party in
relation to a member of a House
belonging to any political party, refers to
the provisions of paragraphs 2, 3 and 4,
as the case may be, to mean the group
consisting of all members of that House
for the time being belonging to that
political party in accordance with the said
provisions, namely, paragraphs 2, 3 and
4, as the case may be. Paragraph 2(1)
read with the explanation clearly points
out that an elected member shall
continue to belong to that political party
by which he was set up as a candidate for
election as such member. This is so
notwithstanding that he was thrown out
or expelled from that party. That is a
matter between the member and his
party and has nothing to do so far as
deeming clause in the Tenth Schedule is
concerned. The action of a political party
qua its member has no significance and
cannot impinge on the fiction of law
under the Tenth Schedule. We reject the
plea solely based on Clause 1(b) of the
Tenth Schedule."
The Punjab case is not correctly decided.
On the facts of the present case, the Speaker was
justified in coming to the conclusion that there was no split in
the original political party of the petitioner Jagjit Singh (Writ
Petition 287/2004). Likewise, in Writ Petition 292/2004, the
Speaker on consideration of relevant material placed before
him came to the conclusion that there was no split as
contemplated by paragraph 3 of the Tenth Schedule. The
finding of the Speaker cannot be faulted. In fact, letter of the
petitioner dated 17th June sent to the Speaker itself shows
that what was claimed was that the Haryana unit of the
Republican Party of India effected a split in the original party
on 21st December, 2003. The finding that the claim of split
was made as an afterthought to escape disqualification under
paragraph 2(1)(a) of the Tenth Schedule cannot be held to be
unreasonable or perverse. The Speaker was justified in
coming to the conclusion that despite various opportunities,
no valid proof or evidence was placed on record by the
petitioner to show that indeed a split had taken place in the
original political party, i.e., Republican Party of India on 21st
December, 2003.
It is a matter of great anguish that the mode of
substituted service had to be resorted to, to serve elected
members of a Legislative Assembly.
The manner in which the matter proceeded before the
Speaker after complaint was filed is evident from the
impugned order, relevant part whereof reads as under :
"Notice was issued to the respondent and
copies were forwarded to him in the
manner provided under Para-7 of the
Rules of 1986. A period of one month
from the date of issue of the notice was
given to the Respondent to file his reply
to the Petition. However, the record
reveals that the Registered-AD letter
dated 17.3.2004 containing the notice,
was received back undelivered with the
report of the serving agency (Postal
Department) dated 30.3.2004. This
report when translated, stated that "the
addressee is not contactable and no one
else is ready to take the registered letter
and, therefore, the letter is being
returned." The report itself mentions that
the official of the postal department
visited the given address of the
respondent on 25.3.2004, 26.3.2004,
27.3.2004 and 28.3.2004.
In view of this it was again ordered
that the respondent be served with the
notice of the petition by Registered-AD
post. Accordingly Registered-AD letter
dated 23.4.2004 was sent to the
respondent to submit his comments to
the petition before 11.5.2004. This letter
was also received back undelivered with
the accompanying report dated 5.5.2004
of the serving agency, which in terms,
was to the same effect as the earlier
report dated 30.3.2004. The report
further reveals that the official of the
postal department went to the given
address of the respondent on 27.4.2004,
28.4.2004, 29.4.2004, 30.4.2004 and
1.5.2004. so far as the substituted
service of the Respondent through
SDO(C) Palwal was concerned, the report
of the same was still awaited when the
case was taken up on 11.5.2004.
In these circumstances, it was
ordered on 15.5.2004 to make another
effort to serve the respondent by sending
notice, yet again, by registered post and
as well as by substituted service through
publication in two leading newspapers
and the case was adjourned to 4.6.2004,
by which date the respondent had been
directed to file his reply. The record
reveals the notice dated 18.5.2004
through registered post, along with the
copy of the petition and its annexures
was again sent to the respondent asking
him to furnish his reply by 4.6.2004. In
the mean time, the respondent through a
letter received on 21.5.2004, made a
prayer for giving him six weeks time to
file the reply as he had only received the
notice on 12.5.2004 whereas reply had to
be given by 11.5.2004. Since a notice
dated 18.5.2004 had already been sent to
the respondent asking him to submit his
reply by 4.6.2004, the request of the
respondent for giving him six weeks time
could not be granted and he was duly
informed on 28.5.2004 through telegram
to submit his reply by 4.6.2004.
When the case was taken up on
4.6.2004, an application dated 4.6.2004
was submitted by the respondent seeking
permission to file a detailed reply to the
petition and four weeks more time was
prayed for this purpose as well as the
opportunity of being assisted by an
advocate was asked for. Although more
than sufficient time had been granted to
the respondent to furnish his
comments/reply by this Authority and in
view of the fact that by letter dated
18.5.2004 he had already been asked to
submit his reply by 4.6.2004, therefore,
no case was made out to grant the
respondent any more time. However, in
the interest of justice a final opportunity
was granted to the respondent and he
was asked to submit the detailed
comments on the petition latest by
11.6.2004. An opportunity of personal
hearing was also granted to the
respondent along with the assistance of
an Advocate, if desired. On 4.6.2004, it
was intimated to the respondent
telegraphically as well as by Registered
Post/Courier and fax and through
SDO(C), Palwal to submit his detailed
reply by 11.6.2004 and also to appear at
11 AM on 11.6.2004 in the Haryana
Vidhan Sabha before this Authority with
the assistance of an Advocate, if desired.
Consequently, the respondent put in
appearance at 11 AM on 11.6.2004 along
with his counsel Sh. Joginder Pal
Sharma, Advocate and submitted an
Application dated 11.6.2004 seeking
permission to inspect the record and for
obtaining the certified copies of the
documents mentioned in Para 3 of the
application. In the interest of justice, a
detailed order was passed on 11.6.2004
allowing the application of the respondent
and granting permission to him to inspect
the record and also for supply of certified
copies of the documents which were
demanded by the respondent. An
intimation of the order passed by this
Authority was conveyed to the respondent
by the Secretary vide letter dated
11.6.2004 which was received by the
respondent on the same day at 5.30 pm
as the record reveals. By this letter it
was also conveyed to the respondent that
permission to inspect the record at 10 AM
on 14.6.2004 had also been granted. The
certified/Photostat copies as asked for by
the respondent had also been enclosed
with the said letter. The respondent was
asked to submit his comments latest by 2
pm on 14.6.2004 and also to appear
personally with the assistance of his
Advocate. The record reveals that the
inspection had indeed been done by the
respondent and he was assisted by his
Advocate in the said inspection of the
record.
Instead of filing his reply on
14.6.2004, another application was
submitted by the respondent on
14.6.2004 itself seeking permission to
inspect the files of some other cases and
also put a query to this Authority
regarding the procedure adopted in those
cases regarding evidence etc. The desired
files/documents were got inspected to the
Respondent on 14.6.2004 which was
acknowledged by the respondent on his
above stated letter dated 14.6.2004.
After completion of the inspection, on
14.6.2004 again another application was
made by the respondent that certified
copies of more documents was required
by him for filing his comments/reply to
the petition."
The position is almost same in both cases.
Re : (b)
The words 'he and any other person' and the words 'the
group' in paragraph 3 on the plain reading shows that the
benefit of paragraph 3 is not available to a single member
legislature party. It was, however, contended that the words
'he and any other person', in the context of a recognized single
member legislature party should be read and understood as
'he or he and any other members of his legislature party
constitute the group'. We cannot read words in the
Constitution which do not exist. The contention is that once a
single member legislature party is recognized by the Speaker,
the benefit of paragraph 3 has to be given to the sole member
representing that party as it would be a case of 100%
representing break away group. Undoubtedly, paragraph
2(1)(a) is subject to the provisions of paragraphs 3, 4 and 5
and if paragraph 3 applies and ingredients thereof are satisfied
the member would not attract disqualification under
paragraph 2(1)(a). In that sense paragraph 3 overrides
paragraph 2(1)(a). The factor that a single member legislature
party is recognized by the Speaker is of no relevance in
interpreting paragraph 3 of the Tenth Schedule. In the
context of the language of paragraph 3 of the Tenth Schedule,
Section 13(2) of the General Clauses Act, 1897 which requires
that unless there is anything repugnant in the subject of
context, 'words in the singular shall include the plural, and
vice-versa' has no applicability. It is, ordinarily, not the
function of the Court to read words into a statute. The Court
must proceed on the assumption that the Legislature did not
make a mistake and it intended to say what it said. It is well
settled that "the Court cannot add words to a statute or read
words into it which are not there, especially when the literal
reading produces an intelligible result' {See P.K. Unni v.
Nirmala Industries & Ors. [(1990) 2 SCC 378]}. The
contention is that when paragraph 3 protects when there is
defection of a group consisting of not less than one-third of the
members of a legislature party, the intention of law can never
be to deprive such a benefit where group is 100%. We are
unable to accept this contention for more than one reason.
Firstly, there is no contradiction or ambiguity or defect or
omission in paragraph 3; secondly, there is no manifest
contradictions insofar as the apparent object of the defection
law is concerned in paragraph 3 depriving the benefit of single
member legislature party; thirdly the legislature is assumed to
have known the existence of single member legislature party;
and finally from the language of paragraph 3, it is evident that
the Parliament did not intend to grant the benefit of paragraph
3 to a single person legislature party, having regard to the
object of the Constitutional amendment dealing with evil of
defection. Advisedly, the words are 'he and other members'
instead of the words 'he or he and other members'.
The object of the Tenth Schedule is to discourage
defection. Paragraph 3 intended to protect a larger group
which, as a result of split in a political party which had set up
the candidates, walks off from that party and does not treat it
as defection for the purposes of paragraph 2 of the Tenth
Schedule. The intention of the Parliament was to curb
defection by a small number of members. That intention is
clear from paragraph 3 which does not protect a single
member legislature party. It may be noted that by
Constitution (Ninty-first Amendment) Act, 2003, paragraph 3
has been omitted from the Tenth Schedule.
Lastly, we will consider the ground of personal malafides.
It is alleged that a telephone call was made by the Speaker to
the petitioners asking them not to vote in the Rajya Sabha
election. The averments made in Writ Petition 287 of 2004
are:
"That with a sense of utmost
responsibility, the Petitioner states that
the Respondent No.2 had called up the
Petitioner on his mobile phone on
24.6.2004 asking the Petitioner that if he
decides to abstain from voting, then
disqualification can be avoided." The Speaker has not filed any reply. It is true that the
aforesaid averments have remained unrebutted.
The contention is that adverse inference should be drawn
against the Speaker and the impugned orders set aside on the
ground of malafides of the Speaker.
The question of drawing adverse inference in view of
Speaker not rebutting the aforesaid averments would depend
upon the satisfaction of the Court, having regard to the facts
and circumstances of the case. Ordinarily, the adverse
inference can be drawn in respect of allegations not traversed,
but there is no general rule that adverse inference must
always be drawn, whatever the facts and circumstances may
be. The facts and circumstances of the present case have
already been noticed as to how the petitioners have been
avoiding to appear before the Speaker; how the proceedings
were being delayed and long adjournments sought on ground
such as non-availability of senior advocates because of court
vacations. In the light of these peculiar facts and
circumstances, a telephone call like the one alleged can mean
that further adjournment as sought for by the petitioners is
possible if they do not vote in the Rajya Sabha election on 28th
June, 2004. On facts, we are unable to draw adverse
inference and accept the plea of malafides.
Before parting, another aspect urged before us deserves
to be considered. However, at the outset, we do wish to state
that the Speaker enjoys a very high status and position of
great respect and esteem in the Parliamentary Traditions. He,
being the very embodiment of propriety and impartiality, has
been assigned the function to decide whether a member has
incurred disqualification or not. In Kihoto Hollohan's
judgment various great Parliamentarians have been noticed
pointing out the confidence in the impartiality of the Speaker
and he being above all parties or political considerations. The
High office of the Speaker has been considered as one of the
grounds for upholding the constitutional validity of the Tenth
Schedule in Kihoto Hollohan's case.
Undoubtedly, in our constitutional scheme, the Speaker
enjoys a pivotal position. The position of the Speaker is and
has been held by people of outstanding ability and
impartiality. Without meaning any disrespect for any
particular Speaker in the country, but only going by some of
events of the recent past, certain questions have been raised
about the confidence in the matter of impartiality on some
issues having political overtones which are decided by the
Speaker in his capacity as a Tribunal. It has been urged that
if not checked, it may ultimately affect the high office of the
Speaker. Our attention has been drawn to the
recommendations made by the National Commission to review
the working of the Constitution recommending that the power
to decide on the question as to disqualification on ground of
defection should vest in the Election Commission instead of
the Speaker of the House concerned. Our attention has also
been drawn to the views of number of other experts,
committees/commissioner to the effect that the power of
disqualification as a result of defection need to be exercised in
accordance with the opinion of the Election Commission as in
the case of decision on question as to disqualification of
members provided for in Article 103 and 194(2) of the
Constitution (See Anti-Defection Law and Parliamentary
Privileges by Dr. Subhash C. Kashyap, M.P. Jain's Indian
Constitutional Law, 5th Edn., Constitutional Law of India, 2nd
Edn. by T.K. Tope, Reviewing the Constitution edited by Dr.
Subhash C. Kashyap & Ors., First V.M. Tarkunde Memorial
Lecture on "Indian Democracy Reality or Myth?" delivered by
Shri Soli J. Sorabjee).
Whether to vest such power in the Speaker or Election
Commission or any other institution is not for us to decide. It
is only for the Parliament to decide. We have noted this aspect
so that the Parliament, if deemed appropriate, may examine it,
bestow its wise consideration to the aforesaid views expressed
also having regard to the experience of last number of years
and thereafter take such recourse as it may deem necessary
under the circumstances.
As a result of the aforesaid discussions, we find no merit
in the writ petitions. Writ Petition Nos.287/2004 and 290 to
294/2004 are, accordingly, dismissed.
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