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Constitution of India, 1950-Tenth Schedule Paras 2 (1) (a) and (2) 3 and 8-Members of Legislative Assembly-Four were elected as independent members and two were sole members of their respective political parties-Complaint of defection to another political party-Speaker of the assembly relying on the statements of the members in electronic media, disqualified them from membership of the Assembly-Members declined to watch the recording in order to point out doctoring therein-Members sought permission to cross-examine and lead evidence-Denial thereof-Orders of disqualification challenged on the ground of violation of principles of Natural Justice and malafide-Held: In the facts and circumstances of the case mere denial to cross examine and adduce evidence may not automatically lead to violation of principles of Natural Justice-On the facts plea of malafide not acceptable-A member cannot be permitted to get away with defection on the ground of mere technicalities-Order of the speaker not illegal and unreasonable-The independent members have incurred disqualification under Para 2 (2)-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 but that he has given up his independent status-Protection of Para 3 is not applicable to a single member party-Burden to prove the requirement of Para 3 is on the member who seeks protection thereunder-Members of political parties having failed to prove the split in their respective parties, not entitled to protection under Para 3-Evidence-Burden to prove-Haryana Legislative Assembly (Disqualification of Member on ground of Defection) Rules, 1986. Election Law-Defection Law-Object of-Discussed. Evidence-Admission-Evidentiary value of-Held: Admission is best evidence-Though conclusive it is decisive of the matter unless successfully withdrawn or proved erroneous. Judicial Review-Scope of-In cases of disqualification of members of Legislative Assembly-Held: Speaker, while exercising power to disqualify members acts as a Tribunal-Validity of such orders can be challenged on the ground of ultra vires or malafide or having been made in colourable exercise of power based on extraneous and irrelevant consideration-But the scope of judicial review in respect of such proceedings is limited-Order would be a nullity if rules of natural justice are violated-Principles of Natural Justice. Principle of Natural Justice-Right to hearing-Opportunity to cross examine and adduce evidence denied-Denial of reasonable opportunity of hearing alleged-Held: Principles of Natural Justice are flexible and have to be examined in each case-They cannot be fixed in rigid mould-In the present case in view of the conduct of the alleging parties, mere denial of opportunity to cross examine or adduce evidence may not automatically lead to violation o principles of Natural Justice. Interpretation of Statutes-It is ordinarily not the function of the court to read word, in a statute-Court must proceed on the assumption that legislature did not make a mistake and it intended to say what it said-Constitution of India, 1950-Tenth Schedule para 3 and 2 (1) (a). Doctrines-Doctrine of necessity-Applicability of. Petitioners were elected to the State Assembly. Four petitioners were independent members and two were lone members representing their respective political parties in the Assembly. Speaker of the Assembly disqualified them from the membership of the Assembly in exercise of its power under the Tenth Schedule to the Constitution of India. All the petitioners challenged the orders of disqualification on the ground of violation of principles of natural justice; that impugned orders were result of malafide of the Speaker as the disqualifications were made in utter haste with a view to deprive them of their right to vote in elections to Rajya Sabha in view of the fact that the Speaker, on telephone had told that if they abstained from voting, their disqualification could be avoided; that the speaker had no basis for coming to the conclusion regarding their defection; and that the petitioners belonging to the political parties were 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, having joined another party, 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. – Dismissing the Writ Petitions, the Court HELD: 1. 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. 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. [535-B-D] Kihoto Hollohan v. Zachillhu and Ors., [1992] supp 2. SCC 651, relied on. 2.1. 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. 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. [548-A-C] Dewan Singh v. Champat Singh and Ors., [1969] 3 SCC 447, distinguished. 2.2. 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. It cannot be said that the petitioners were not given a fair deal by the Speaker and principles of natural justice have been violated. [553-A-B] 2.3. 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 of the Constitution of India. 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. [535-D-F] 2.4. 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. 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. 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. [535-F-H; 536-A-C] 2.5. In the present case, 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 petitioners failed to do so. 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 principles of natural justice are flexible and have to be examined in each case. [540-D-H] National Textile Workers’ Union and Ors. v. P.R. Ramakrishnan and Ors., [1983] 1 SCC 228, distinguished. Swadeshi Cotton Mills v. Union of India, [1981] 1 SCC 664; Ravi S. Naik v. Union of India and Ors., [1994] Supp. 2 SCC 641; Kihoto Hollohan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651; Mrs.Maneka Gandhi v. Union of India and Anr., [1978] 1 SCC 248 and Union of India and Anr. v. Tulsiram Patel, [1985] 3 SCC 398, referred to. John v. Rees and Anr., [1969] 2 All E.R. pp. 307-309, referred to. 2.6. It is evident from the 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 and opportunity to lead evidence. [543-E-F] 2.7. The sufficiency of the time granted depends upon the facts and circumstances of each case. Having regard to the facts of the case it cannot be accepted that in the present case, the petitioners were not granted sufficient time to meet the case against them. [543-G-H] 2.8. 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 latter part. [552-H; 553-A] Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., [1960] 1 SCR 773, relied on. 3. The object for enacting the defection law is 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. [541-D-F] 4.1. Petitioners (independent members) have incurred disqualification as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of India. [554-B-C] 4.2. It is correct 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. It is also correct that 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 are 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. [541-A-D] 4.3. 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. [553-F-H; 554-A-B] 5.1. 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 ‘J’. Likewise, in Writ Petition of another petitioner belonging to political party, 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. [563-d-g] 5.2. 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. [558-C-E] Ravi S. Naik v. Union of India and Ors., [1994] Supp. 2 SCC 641, relied on. 5.3. 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. 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. [559-C-F] 5.4. In the present case, the Speaker has held that the petitioner has failed to satisfy that split in the original party, had taken place. The petitioner voluntarily gave up membership of National Congress Party (NCP) 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. 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. 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’. [559-F-H; 560-C-E[ Madan Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha The Punjab Law Reporter Vol.CXVII 1997-3, 374 – disapproved. 5.5. 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. [562-B-E] G. Viswanathan v. Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras and Anr., [1996] 2 SCC 353, relied on. 5.6. 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 cannot be said 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’. The Court cannot read words in the Constitution which do not exist. 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’. [566-D-H; 567-A-B] P.K. Unni v. Nirmala Industries and Ors., [1990] 2 SCC 378, referred to. 5.7. It cannot be said 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%. 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’. [567-A-E] 5.8. 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. By Constitution (Ninty-first Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth Schedule. [567-D-F] 5.9. The question of drawing adverse inference in view of Speaker not rebutting the 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 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 facts there is no adverse inference and the plea of malafides cannot be accepted. [568-B-E] 6. 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. Recommendations have been 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. There are 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. [568-H; 569-A-C] Kihoto Hollohan v. Zachillhu and Ors., [1992] supp. 2 SCC 651, referred to. Anti-Defection Law and Parliamentary Privileges by Dr. Subhash C. Kashyap; Indian Constitutional Law by M.P. Jain 5th Edn; Constitutional Law of India, 2nd Edn. by T.K. Tope, Reviewing the Constitution edited by Dr. Subhash C. Kashyap and Ors; First V.M. Tarkunde Memorial Lecture on “Indian Democracy Reality or Myth?” delivered by Shri Soli J. Sorabjee, referred to. Ajay Siwach, A.A.G., P.P. Rao, V.A. Bobde, Soli J. Sorabjee, R.N. Trivedi, Mahendra Anand, Shanti Bhushan, Rakesh K. Khanna Jaspal Singh, R.N. Karanjawala, Arunabh Chaudhary, Sarvesh Singh Baghel, Abhishek Kumar, Anshuman Ashok, Dashmeet Chaddha, Kanika Agnihotri, Pragya Baghel, Manik Karanjawala, Gaurav Vatts, Aditya Kumar Choudhary, Manish Mohan, Sweta Garg, Surya Kant, Sandeep Sharma, T.V. George, Sanjai Pathak, Ugra Shankar Prasad and Arun Kumar Beriwal for the appearing parties.

A Congress rally in New Delhi.

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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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