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2017 Supreme(SC) 358
SUPREME COURT OF INDIA
(RECORD OF PROCEEDINGS)
DIPAK MISRA, A.M. KHANWILKAR, JJ.
AMAR SINGH – Petitioner(s)
VERSUS
THE UNION OF INDIA – Respondent(s)
Writ Petition(s)(Civil) No(s). 240 of 2017
Decided On : 17-04-2017
For Petitioner(s): Mr. C.U. Singh, Mr. Rohit Mammen Alex, Mr. P.S. Sudheer, Mr. S.P.M. Tripathi, Mr. Gaurav Jain, Advs.
An elected member expelled from the nominating party continues to belong to that party, and joining another party constitutes voluntarily giving up the membership of the original party, leading to disqualification under the 10th Schedule.
Headnote:
10th Schedule - Expulsion of Elected Member - 10th Schedule - Para 2
Fact of the Case:
The petitioner, an elected member of a House, sought relief under Article 32 of the Constitution of India, challenging the application of Para 2 of the 10th Schedule to the Constitution, which deals with disqualification on the ground of defection.
Finding of the Court:
The Court found that the issue of whether Para 2 of the 10th Schedule would apply to an elected member who has been expelled from the political party needed consideration. The Court referred to previous judgments and observed that an elected member continues to belong to the political party that set him up as a candidate, even if expelled, and joining another party would amount to voluntarily giving up the membership of the original party.
Issues: The Court considered the status of an expelled member in the House, the application of the 10th Schedule to such members, and the interpretation of the provisions in light of legislative history and parliamentary debates.
Ratio Decidendi: The Court held that an elected member expelled from the party that nominated them continues to belong to that party, and joining another party constitutes voluntarily giving up the membership of the original party, leading to disqualification under the 10th Schedule.
Final Decision: The Court referred the matter to a larger Bench for consideration of specific questions related to the status of expelled members and the application of the 10th Schedule. Interim relief was granted to the petitioner pending the reference.
ORDER
1. Heard Mr. C.U. Singh, learned senior counsel along with Mr. Rohit Alex, learned counsel for the petitioner.
2. This writ petition is preferred under Article 32 of the Constitution of India. The petitioner has prayed for the following reliefs :-
“(a) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction for declaring that the provisions of the 10th Schedule to the Constitution, namely para 2 do not apply to an elected member of a House who has been expelled by his/her political party; or
(b) Declare the provisions of 10th Schedule to the Constitution, to the extent that para 2 applies to an expelled member, to be violative of the asic structure of the Constitution; or
(c) In the alternative, declare that the petitioner having been expelled by the Samajwadi Party, his conduct would no longer fall within the acts that constitute a disqualification within the meaning of para 2(1)(a) and para 2(1)(b) of the Tenth Schedule to the Constitution.
(d) pass any such other order and/or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
3. Having heard Mr. C.U. Singh, learned senior counsel, we are of the considered opinion that prayer (b) does not require to be considered by this Court and the same need not be adverted to. What is required to be adverted to is whether Para 2 of the Tenth Schedule to the Constitution would apply to the elected member who has been expelled from the political party. Paragraph 2 of the Tenth Schedule reads as follows :-
(2) Disqualification on ground of defection.—(1) Subject to the provisions of paragraphs 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 authorised 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.
Explanation.—For the purposes of this sub-paragraph,—
(a) 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;
(b) a nominated member of a House shall,—
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(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.”
4. Para 2 of the Tenth Schedule to the Constitution came for consideration before a two-Judge Bench of this Court in G. Viswanathan vs. Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353] wherein this Court referred to Kihoto Hollohan vs. Zachillhu [1992 Supp. (2) SCC 651] and other authorities and came to hold as follows :-
“11. It appears that since the explanation to paragraph 2(1) of the Tenth Schedule provides 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, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth S
