2006 Supreme(SC) 1279

2006(9) Supreme 829
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
Y.K. Sabharwal, CJI., C.K. Thakker & P.K. Balasubramanyan, JJ.
Jagjit Singh - Petitioner
versus
State of Haryana & Ors. - Respondents
Writ Petition (Civil) No. 287 of 2004
With
W.P. (C) Nos. 290, 291, 292, 293 & 294 of 2004
Decided on 11-12-2006
Counsel for the Parties :
For the Appearing Parties : 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, Sr. Advocates, R.N. Karanjawala, Arunabh Chaudhary, Sarvesh Singh Baghel, Abhishek Kumar, Anshuman Ashok, Dashmeet Chaddha, Ms. Kanika Agnihotri, Ms. Pragya Baghel, Ms. Manik Karanjawala, Gaurav Vatts, Aditya KumaR Choudhary, Manish Mohan, Ms. Sweta Garg, Surya Kant, Sandeep Sharma, T.V. George, Sanjai Pathak, Ugra Shankar Prasad and Arun Kumar Beriwal, Advocates.

IMPORTANT POINTS
1. The Speaker, while exercising power to disqualify members, acts as a Tribunal and validity of the orders, thus passed, can be questioned in the writ jurisdiction.
2. Giving of outside support by an independent elected member is not the same thing as joining any political party after election.
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.
4. 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.

Headnote:(i) Constitution of India – Tenth Schedule, paragraphs 2(2), 3, 4, 6 and 8 – The Speaker, while exercising power to disqualify members, acts as a Tribunal and validity of the orders, thus passed, can be questioned in the writ jurisdiction – However, the scope of judicial review is limited – The orders can be challenged on the ground of ultra vires, mala fides or violative of natural justice; or having been made in colourable exercise of power based on extraneous and irrelevant considerations – In the facts and circumstances of the present case, mere denial of opportunity to cross-examine or adduce evidence may not automatically lead to violation of principles of natural justice – Also, despite defection a member cannot be permitted to get away with it without facing the consequences of such defection only because of mere technicalities. (Paras 3, 4, 9, 21 and 23)

       1992 Supp.(2) SCC 651; (1969) 2 All E.R. at pages 307-309; (1983) 1 SCC 228; (1981) 1 SCC 664; (1964) AC 40; 1994 Supp. (2) SCC 641; (1978) 1 SCC 248; (1985) 3 SCC 398 – Relied upon.

       (ii) Constitution of India – Tenth Schedule, paragraphs 2(2) and 3 – There is a fundamental difference between an independent elected member and the one who contests and wins on ticket given by a political party – 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 – Giving of outside support by an independent elected member is not the same thing as joining any political party after election – 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 – 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.(Paras 7, 8, 23, 40 to 41)

       (iii) Constitution of India – Tenth Schedule, paragraph 2(2) – All evidences of the independent MLAs joining Indian National Congress appearing in print and electronics media produced – The petitioners declined to watch the recording and 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 the complainant 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 – The Speaker, in law, was the only authority to decide whether the petitioners incurred or not, disqualification – It is not a case where the Speaker could transfer the case to some other tribunal – The doctrine of necessity 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 – Contention on this basis that the petitioners have been denied a reasonable opportunity not acceptable.(Paras 25, 27, 28, 29, 34 and 35)

       (1969) 3 SCC 447 – Distinguished.

       (iv) Constitution of India – Tenth Schedule, paragraph 2(2) – Mala fides – 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 argume nt 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 – 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 – In view of the petitioners avoiding to appear before the Speaker; delaying the proceedings, seeking long adjournments, a telephone call from Speaker like the one alleged can mean that further adjournment as sought for by the petitioners was possible if they did not vote in the Rajya Sabha election on 28th June, 2004 – On facts adverse inference cannot be drawn and the plea of mala fides cannot be accepted. (Paras 36 and 74)

       (v) Constitution of India – Tenth Schedule, paragraph 2(2) – Petitioners contended that the admissions allegedly made before the media could be explained and shown as erroneous and not binding on them – Question of its proof would have arisen only after their showing how the admissions/statements made by them were erroneous – They failed to do so – It has already been held that unless successfully withdrawn or proved erroneous admission is the best evidence that can be relied upon, and though not conclusive, is decisive of the matter. (Para 37)

       (1960) 1 SCR 773 – Relied upon.

       (vi) Constitution of India – Tenth Schedule, paragraphs 2(1), 3 and 6 – 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 – applicability of protection of paragraph 3 to a single member party in a legislature – The disqualification under paragraph 2(1)(a) is incurred when a member of the House voluntarily gives up membership of his original political party, but if conditions of paragraph 3 are satisfied, despite giving up membership voluntarily, a member would not incur disqualification under paragraph 2 – The burden to prove the requirements of paragraph 3 is on the member claiming split – The prima facie proof of such a split is necessary to be produced before the Speaker – 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’ – 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 – Speaker rightly held that there was no split in the original party. (Para 47, 50, 52, 55, 57 and 62)

       (1996) 2 SCC 353 – Relied upon.

       The Punjab Law Reporter Vol. CXVII (1997-3) page 374 – Not correctly decided.

       (v) Constitution of India – Tenth Schedule, paragraphs 2(1) and 3 – 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 legislatu re party – Contention that the words ‘he and any other person’, in the context of a recognized single member legislature party be read and understood as ‘he or he and any other members of his legislature party constitute the group’, not tenable – Courts cannot read words in the Constitution which do not exist – 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. (Para 70)

       (1990) 2 SCC 378 – Relied upon.

       (vi) Constitution of India – Tenth Schedule – The High office of the Speaker has been considered as one of the grounds for upholding the constitutional validity of the Tenth Schedule – In our constitutional scheme, the Speaker enjoys a pivotal position. The position of the Speaker is and has been held of outstanding ability and impartiality. However, certain questions have been raised about the confidence in the matter of impartiality of the Speaker as a Tribunal – National Commission also 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 – 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. (Paras 75, 76 and 77)

       Facts of the case :

       (A)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.

       (B)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.

       (C)Findings of the Court: There being no violation of the principles of natural justice, disqualification of the petitioners upheld.