2007 Supreme(SC) 179

2007(2) Supreme 127
SUPREME COURT OF INDIA
K.G. Balakrishnan, CJI., H.K. Sema, Dr. AR. Lakshmanan, P.K. Balasubramanyan and D.K. Jain, JJ.
Sri Rajendra Singh Rana & Ors.—Appellants
versus
Swami Prasad Maurya & Ors.—Respondents
Civil Appeal No. 765 of 2007
(Arising out of SLP (C) No. 4664 of 2006)
With
C.A. Nos. 766, 767, 768, 769, 770 and 771 of 2007 arising out of S.L.P. (C) No. 4669 of 2006, S.L.P. (C) No. 4671 of 2006, S.L.P.(C) No. 4677 of 2006, S.L.P.(C) No. 6323 of 2006, S.L.P. (C) No. 10497 of 2006 and
S.L.P.(C) No. 10498 of 2006
Decided on 14-2-2007
Counsel for the Parties :
For the Appearing Parties : S.M.A. Kazmi, Sr. Advocate and Advocate General, U.P., Ashok Desai, Dr. Rajeev Dhawan, Mukul Rohtagi, Rakesh Dwivedi, U.U. Lalit, Harish N. Salve, S.C. Mishra, Altaf Ahmed, Sr. Advocates, K.K. Lahiri, Ejaz Maqbool, Vikash Singh, Ms. Taruna Singh, Abhijit Sinha, Vishwajit Singh, Ms. Niranjana Singh, Siddharth Sengar, Gaurav Bhatia, Abhishek Chaudhary, Ms. Vimla Sinha, Aadarsh Upadhyay, Subramonium Prasad, P.H. Parekh, Sameer Parekh, E.R. Kumar, Mrs. Sonali Basu Parekh, Arun Francis, Kusti Chaturvedi (For M/s. P.H. Parekh & Co.), Shail Kumar Qwivedi, P.N. Gupta, G.V. Rao, S.W.A. Qadri, Rajeev Dubey, Kamlendra Mishra, A. Raghunath, Surya Kant, Lakshmi Raman Singh, Syed Ali Ahmad, Syed Tanweer Ahmad, S.S. Bandyopadhyay, Mohd. Shah Nawaz Hasan, Miss Shabana Saifi and Mohan Pandey, Advocates.

IMPORTANT POINTS
1. The 13 MLAs of State of Uttar Pradesh elected to the Assembly on tickets of Bahujan Samaj Party, who met the Governor on 27-8-2003 and requested him to invite the leader of the Samajwadi Party to form the Government, proclaiming support to Shri Mulayam Singh Yadav, are declared disqualified from the Uttar Pradesh Legislative Assembly w.e.f. 27-8-2003 in terms of paragraph 2 of the Tenth Schedule to the Constitution, on ground of defection.
2. The failure of the Speaker to decide the petition for disqualification of MLAs simultaneously with the petition for recognition of a split in the political party is not a mere procedure irregularity but a jurisdictional illegality, an illegality which goes to the root of the so called decision by the Speaker on the question of split put forward before him.
3. The Speaker has to decide the question of disqualification of MLAs on ground of defection with reference to the date on which the member voluntarily gives up his membership or defies the whip.

Headnote:(i) Constitution of India—Articles 102, 191; Tenth Schedule As Amended by the Constitution (Fifty-Second Amendment) Act, 1985—Disqualification for membership of Legislative Assembly on ground of defection—Scheme of Tenth Schedule in the context of Articles 102 and 191 of the Constitution—Determination of question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members concerned—Under the Tenth Schedule, the Speaker is not expected to simply entertain a claim under paragraphs 3 and 4 of the Schedule without first acquiring jurisdiction to decide a question of disqualification in terms of paragraph 6 of the Schedule—Power under the Tenth Schedule to do so accrues only when he is called upon to decide the question referred to in paragraph 6 of that Schedule—Petition moved before the Speaker for disqualification of 13 members of the Bahujan Samaj Party—When that application was pending before him, 37 members of BSP had made a claim before the Speaker that there has been a split in BSP—Speaker, on scheme of the Tenth Schedule, had to decide the application for disqualification made and while deciding the same, had to decide whether in view of paragraph 3 of the Tenth Schedule, claim of disqualification has to be rejected.

       Held : In the context of the introduction of sub-Article (2) of Article 102 and Article 191 of the Constitution, a proceeding under the Tenth Schedule to the Constitution is one to decide whether a Member has become disqualified to hold his position as a Member of the Parliament or of the Assembly on the ground of defection. The Tenth Schedule cannot be read or construed independent of Articles 102 and 191 of the Constitution and the object of those Articles. A defection is added as a disqualification and the Tenth Schedule contains the provisions as to disqualification on the ground of defection. A proceeding under the Tenth Schedule gets started before the Speaker only on a complaint being made that certain persons belonging to a political party had incurred disqualification on the ground of defection. To meet the claim so raised, the Members of the Parliament or Assembly against whom the proceedings are initiated have the right to show that there has been a split in the original political party and they form one-third of the Members of the legislature of that party, or that the party has merged with another political party and hence paragraph 2 is not attracted. On the scheme of Articles 102 and 191 and the Tenth Schedule, the determination of the question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members concerned. It is therefore not possible to accede to the argument that under the Tenth Schedule to the Constitution, the Speaker has an independent power to decide that there has been a split or merger of a political party as contemplated by paragraphs 3 and 4 of the Tenth Schedule to the Constitution. The power to recognise a separate group in Parliament or Assembly may rest with the Speaker on the basis of the Rules of Business of the House. But that is different from saying that the power is available to him under the Tenth Schedule to the Constitution independent of a claim being determined by him that a member or a number of members had incurred disqualification by defection.(Para 25)

       As we have indicated above, the whole proceeding under the Tenth Schedule to the Constitution is initiated or gets initiated as a part of disqualification of a member of the House. That disqualification is by way of defection. The rules prescribed by various legislatures including the U.P. legislature contemplate the making of an application to the Speaker when there is a complaint that some member or members have voluntarily given up his membership or their memberships in the party. It is only then that in terms of the Tenth Schedule, the Speaker is called upon to decide the question of disqualification raised before him in the context of paragraph 6 of the Tenth Schedule. Independent of a claim that someone has to be disqualified, the scheme of the Tenth Schedule or the rules made thereunder, do not contemplate the Speaker embarking upon an independent enquiry as to whether there has been a split in a political party or there has been a merger. Therefore, in the context of Articles 102 and 191 and the scheme of the Tenth Schedule to the Constitution, we have no hesitation in holding that the Speaker acts under the Tenth Schedule only on a claim of disqualification being made before him in terms of paragraph 2 of the Tenth Schedule.(Para 26)

       Under the Tenth Schedule, the Speaker is not expected to simply entertain a claim under paragraphs 3 and 4 of the Schedule without first acquiring jurisdiction to decide a question of disqualification in terms of paragraph 6 of the Schedule. The power if any, he may otherwise exercise independently to recognise a group or a merger, cannot be traced to the Tenth Schedule to the Constitution. The power under the Tenth Schedule to do so accrues only when he is called upon to decide the question referred to in paragraph 6 of that Schedule.(Para 28)

       In the case on hand, the Speaker had a petition moved before him for disqualification of 13 members of the B.S.P. When that application was pending before him, certain members of B.S.P. had made a claim before him that there has been a split in B.S.P. The Speaker, on the scheme of the Tenth Schedule and the rules framed in that behalf, had to decide the application for disqualification made and while deciding the same, had to decide whether in view of paragraph 3 of the Tenth Schedule, the claim of disqualification has to be rejected. We have no doubt that the Speaker had totally misdirected himself in purporting to answer the claim of the 37 M.L.As. that there has been a split in the party even while leaving open the question of disqualification raised before him by way of an application that was already pending before him. This failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure. It goes against the very constitutional scheme of adjudication contemplated by the Tenth Schedule read in the context of Articles 102 and 191 of the Constitution. It also goes against the rules framed in that behalf and the procedure that he was expected to follow. It is therefore not possible to accept the argument on behalf of the 37 M.L.As. that the failure of the Speaker to decide the petition for disqualification at least simultaneously with the petition for recognition of a split filed by them, is a mere procedural irregularity. We have no hesitation in finding that the same is a jurisdictional illegality, an illegality that goes to the root of the so called decision by the Speaker on the question of split put forward before him. Even within the parameters of judicial review laid down in Kihoto Hollohan (supra) and in Jagjit Singh vs. State of Haryana ( 2006(13) SCALE 335) it has to be found that the decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review.(Para 29)

       There is another aspect. The Speaker, after he kept the determination of the question of disqualification pending, passed an order that the said petition will be dealt with after the High Court had taken a decision on the Writ Petition pending before it and directed that the said petition be taken up after the Writ Petition was disposed of. Then, suddenly, without any apparent reason, the Speaker took up that application even while the Writ Petition was pending and dismissed the same on 7.9.2005 by purporting to accept a so called preliminary objection raised by the 13 M.L.As. sought to be disqualified, to the effect that his recognition of the split of the 37 M.L.As. including themselves, has put an end to that application. This last order is clearly inconsistent with the Speaker’s earlier order dated 14.11.2003 and still leaves open the question whether the petition seeking disqualification should not have been decided first or at least simultaneously with the application claiming recognition of a split. If the order recognising the split goes, obviously this last order also cannot survive. It has perforce to go.(Para 30)

       (ii) Constitution of India—Articles 102, 191; Tenth Schedule, Paragraphs 2, 3 and 6—Disqualification on ground of defection—Scope of paragraphs 2 and 3 of the Tenth Schedule with particular reference to the point of time that must be considered to be relevant—Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip—It is really a decision ex-post facto—Contention that only on a decision of the Speaker that the disqualification is incurred, cannot be accepted—On 27-8-2003, 13 members of BSP met the Governor with the request to invite the leader of the Samajwadi Party to form the Government—On 6-9-2003, 37 MLAs presented themselves before the Speaker for recognition of a split—Alleged act of disqualification of 13 MLAs took place on 27-8-2003.

       Held : It may be true that collective dissent is not intended to be stifled by the enactment of sub-article (2) of Articles 102 and 191 of the Tenth Schedule. But at the same time, it is clear that the object is to discourage defection which has assumed menacing proportions undermining the very basis of democracy. Therefore, a purposive interpretation of paragraph 2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called for. One thing is clear that defection is a ground for disqualifying a member from the House. He incurs that disqualification if he has voluntarily given up his membership of his original political party, meaning the party on whose ticket he had got elected himself to the House. In the case of defiance of a whip, the party concerned is given an option either of condoning the defiance or seeking disqualification of the member concerned. But, the decision to condone must be taken within 15 days of the defiance of the whip. This aspect is also relied on for the contention that the relevant point of time to determine the question is when the Speaker actually takes a decision on the plea for disqualification.(Para 33)

       As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the Legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty Second Amendment of the Constitution and on a true understanding of paragraph 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of paragraph 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible.(Para 34)

       In the case on hand, the question would, therefore be whether on 27.8.2003 the 13 members who met the Governor with the request to invite the leader of the Samajwadi Party to form the Government had defected, on 27.8.2003 and whether they have established their claim that on 26.8.2003 there had been a split in the Bahujan Samaj Party and one third of the members of the Legislature of that party had come out of that party. It may be noted that the clear and repeated plea in the counter affidavit to the writ petition is that a split had occurred on 26.8.2003. This was also the stand of the petitioner before the Speaker for recognition of a split. The position as on 6.9.2003 when the 37 MLAs presented themselves before the Speaker would not have relevance on the question of disqualification which had allegedly been incurred on 27.8.2003.(Para 35)

       (iii) Constitution of India—Articles 102, 191; Tenth Schedule, Paragraph 3—Disqualification on ground of defection—Claim of split in the original political party—It is necessary to prove it at least prima facie—Those who have left the party, will have, prima facie, to show by relevant materials that there has been a split in the original party—A mere claim in that behalf is not enough—Plea made that a split in the original political party need not separately be established if a split in the legislature party is shown, overruled.

       Held : It is not enough that a claim is made of a split in the original party, in addition to showing that one third of the members of the Legislature Party have come out of the party, but it is necessary to prove it at least prima facie. Those who have left the party, will have, prima facie, to show by relevant materials that there has been a split in the original party. The argument, therefore, that all that the 37 MLAs were required to do was to make a claim before the Speaker that there has been a split in the original party and to show that one third of the members of the Legislature party have come out and that they need not produce any material in support of the split in the original political party, cannot be accepted. The argument that the ratio of the decision in Jagjit Singh, 2006 (13) SCALE 335 requires to be reconsidered does not appeal to us. Even going by Ravi S. Naik, (1994) 1 S.C.R. 754 it could not be said that the learned Judges have held that a mere claim in that behalf is enough. As pointed out in Jagjit Singh (supra) the sentence in paragraph 37 in Ravi S. Naik’s case (supra) cannot be read in isolation and it has to be read along with the relevant sentence in paragraph 38 quoted in Jagjit Singh (supra).(Para 37)

       Acceptance of the argument that the legislators are wearing two hats, one as members of the original political party and the other as members of the legislature and it would be sufficient to show that one third of the legislators have formed a separate group to infer a split or to postulate a split in the original party, would militate against the specific terms of paragraph 3. That paragraph speaks of two requirements, one, a split in the original party and two, a group comprising of one third of the legislators separating from the legislature party. By acceding to the two hat theory one of the limbs of paragraph 3 would be made redundant or otios. An interpretation of that nature has to be avoided to the extent possible. Such an interpretation is not warranted by the context. It is also not permissible to assume that the Parliament has used words that are redundant or meaningless. We, therefore, overrule the plea that a split in the original political party need not separately be established if a split in the legislature party is shown. (Para 38)

       (iv) Constitution of India—Articles 102, 191; Tenth Schedule—Disqualification on ground of defection—Scope of judicial review of an order of the Speaker under the Tenth Schedule—There is no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker exercising power under Paragraph 6 of the Tenth Schedule—Scope of judicial review would be confined to jurisdictional errors only—Kihota Hollohan v. Zachillhu, (1992) 1 SCR 686; Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, JT 2007(2) SC 1 : Relied on. (Para 39)

       (v) Constitution of India—Articles 102, 191; Tenth Schedule, Paragraphs 2, 3, 4, 6—Disqualification on ground of defection—Legislative Assembly of State of Uttar Pradesh—A coalition Government was formed, headed by leader of Bahujan Samaj Party (BSP)—On 25-8-2003, the cabinet took a decision for recommending dissolution of the Assembly—On 26-8-2003, leader of BSP resigned and leader of Samajwadi Party stacked his claim before the Governor for forming a Government—On 27-8-2003, 13 Members of Legislative Assembly elected to the Assembly on tickets of BSP, met the Governor and requested him to invite the leader of the Samajwadi Party to form the Government—Leader of Legislature BSP filed a petition before the Speaker in terms of Article 191 read with the Tenth Schedule for disqualification of those 13 BSP MLAs on ground of defection—On 6-9-2003, a request made by 37 MLAs elected on BSP tickets requesting the Speaker to recognise a split in BSP—Speaker passed an order accepting the split in BSP on basis that 37 out of 109 legislators comprises one third of the Members of the legislature party—In its order the Speaker did not decide issue of disqualification of 13 of its MLAs who were part of the 37 MLAs claiming split—Writ Petition filed challenging order of the Speaker—Whether majority of the High Court was justified in quashing decisions of the Speaker—(Yes)—Whether the Supreme Court should substitute its decision for that of the Speaker—(Yes)—Thirteen MLAs stand disqualified w.e.f. 27-8-2003.

       Held : Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of paragraph 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf. He has entered no finding whether a split in the original political party was prima facie proved or not. The Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with. We have, therefore, no hesitation in agreeing with the majority of the High Court in quashing the decisions of the Speaker.(Para 40)

       Normally, this Court might not proceed to take a decision for the first time when the authority concerned has not taken a decision in the eyes of law and this Court would normally remit the matter to the authority for taking a proper decision in accordance with law and the decision this Court itself takes on the relevant aspects. What is urged on behalf of the Bahujan Samaj Party is that these 37 MLAs except a few have all been made ministers and if they are guilty of defection with reference to the date of defection, they have been holding office without authority, in defiance of democratic principles and in such a situation, this Court must take a decision on the question of disqualification immediately. It is also submitted that the term of the Assembly is coming to an end and an expeditious decision by this Court is warranted for protection of the constitutional scheme and constitutional values.(Para 44)

       Considering that if the 13 members are found to be disqualified, their continuance in the Assembly even for a day would be illegal and unconstitutional and their holding office as ministers would also be illegal at least after the expiry of six months from the date of their taking charge of the offices of Ministers, we think that as a Court bound to protect the Constitution and its values and the principles of democracy which is a basic feature of the Constitution, this Court has to take a decision one way or the other on the question of disqualification of the 13 MLAs based on their action on 27.8.2003 and on the materials available.(Para 45)

       The first act on the part of the 13 MLAs which is relevant is the giving of letters by them to the Governor, the contents of which we have quoted earlier in paragraph 16. Therein, there is no claim that there was a split in the Legislature Party on 26.8.2003 as was put forward in the representation on 6.9.2003 by 37 members. It is interesting to note that in the counter-affidavit to the writ petition filed by Rajendra Singh Rana who can be described as the leader of the 13 (for that matter of the 37), it has been repeatedly asserted that on 26.8.2003 a new party called Lok Tantrik Bahujan Dal was formed. Therefore, this was a case in which the theory of snow balling adverted to by the learned Chief Justice in the Judgment under appeal had no relevance. The issue was, whether on 26.8.2003 there had been a split in the original political party, the BSP and whether by that split, 37 of the MLAs of that Legislature Party had come out of that party. As rightly pointed out by learned counsel for BSP, no material is produced either to show that a meeting of the members of BSP was convened on 26.8.2003 or that a meeting took place at Darulshafa in which a split in the original political party occurred. On the other hand, the letters given to the Governor on 27.8.2003 by the 13 members sought to be disqualified, is totally silent on any such split in the original political party or on a new party being formed by certain members of the original political party. This is followed by the fact that on 2.9.2003 only the members who had met the Governor, sat with the members of the Samajwadi Party abandoning their seats with BSP in the Assembly and the other 24, which made up the 37, remained in their seats along with the BSP. More over, no notice of a proposed meeting of the party on 26.8.2003, or evidence of any announcement of such a proposed meeting is produced. No agenda of any such meeting is also produced. No minutes evidencing any decision to split the party taken at such a meeting, is also produced. These relevant aspects clearly demonstrate that the story of a split in the original political party put forward in the letter dated 6.9.2003 was only an afterthought.(Para 47)

       In view of our conclusion that it is necessary not only to show that 37 MLAs had separated but it is also necessary to show that there was a split in the original political party, the above finding necessarily leads to the conclusion that the 13 MLAs sought to be disqualified had not established a defence or answer to the charge of defection under paragraph 2 on the basis of paragraph 3 of the Tenth Schedule. The 13 MLAs, therefore, stand disqualified with effect from 27.8.2003. The very giving of a letter to the Governor requesting him to call the leader of the opposition party to form a Government by them itself would amount to their voluntarily giving up the membership of their original political party within the meaning of paragraph 2 of the Tenth Schedule. If so, the conclusion is irresistible that the 13 members of BSP who met the Governor on 27.8.2003 who are respondent Nos. 2, 3, 4, 5, 6, 9, 10, 14, 16, 19, 20, 21 and 37, in the writ petition filed by Maurya, stand disqualified in terms of Article 191(2) of the Constitution read with paragraph 2 of the Tenth Schedule thereof, with effect from 27.8.2003. If so, the appeal filed by the writ petitioner has to be allowed even while dismissing the appeals filed by the 37 MLAs, by modifying the decision of the majority of the Division Bench. Hence the writ petition filed in the High Court, will stand allowed with a declaration that the 13 members who met the Governor on 27.8.2003, being respondent numbers 2, 3, 4, 5, 6, 9, 10, 14, 16, 19, 20, 21 and 37 in the writ petition, stand disqualified from the Uttar Pradesh Legislative Assembly with effect from 27.8.2003.(Para 53)