The Speaker's decision not to count certain votes in the no-confidence motion was illegal and unconstitutional because it violated the freedom of speech and voting rights of the legislators and resulted in the government retaining power despite losing the confidence of the Assembly.

Jasti Chelameswar, C.J.

1. The Presidential proclamation dated 03.01.2008 under Article 356(1) of the Constitution of India imposing President's Rule and keeping the Assembly under suspension in the State of Nagaland has been put to challenge in the present writ petition. Intricate questions in un-chartered fields, notwithstanding the pronouncement of the Apex Court in Rameswhar Prasad v. Union of India AIR 2006 SC 980 and Clause (R. Bommai v. Union of India [1994] 2 SCR 644, have arisen for our consideration in the present case. Before we proceed to make the required determination the relevant facts and circumstances giving rise to the Presidential notification will be required to be noticed by us.

2. On 26.2.2003 elections were held to the 60-member Nagaland Legislative Assembly. On 6.3.2003 the Democratic Alliance of Nagaland (DAN) formed a coalition government with Sri Neiphiu Rio as the Chief Minister. The alliance had the support of 43 members - 32 from the Nagaland Peoples Front (NPF), 5 from the Bharatia Janata Party (BJP), 2 from Janata Dal (United) [JD (U)] and 4 independents. The remaining 17 seats in the Assembly were filled up by members of the Congress Party.

3. On 21.7.2003 the Nagaland Assembly (Disqualification on Ground of Defection) Rules, 2003 were framed by the Speaker in exercise of powers under paragraph 8 of the Tenth Schedule. The Rules, as framed, were laid before the House and took effect from 18.3.2006. In exercise of the power under Rule 19 of the aforesaid Rules a direction was issued by the Speaker on 21.8.2006, details of which will be noticed later on.

4. In the month of May 2007, 22 MLAs belonging to the alliance informed the Governor that they have withdrawn their support to the Government and staked a claim to form an alternative government under the leadership of one Sri Z. Obed. However, on the very next day 10 MLAs out of the group of 22 re-affirmed their support to the Government under the leadership of Sri Neiphiu Rio. What has happened thereafter would not be of any consequence to us save and except that the Government continued to remain in power with the support of 43 members of the House in which the opposition consisted of the remaining 17 members.

5. Thereafter on 18.9.2007, 4 MLAs belonging to the NPF resigned from the Assembly. One independent MLA withdrew his support to the Government. In the aforesaid changed situation the strength of the House stood reduced to 56 out of which 38 members supported the Government whereas 18 members (17 belonging to Congress party and the independent MLA who earlier withdrew support to the Government) constituted the opposition).

On 6.10.2007 one JD(U) member withdrew his support to the alliance. On 24.10.2007 another JD (U) member similarly withdrew his support to the Government. On 27.10.2007 the Governor of the State summoned the Assembly to meet on 13.12.2007. Thereafter, on 29.10.2007 one Tia Meren, a BJP member resigned from the Assembly. The strength of the House thus stood reduced to 55 and that of the Government to 35.

6. On 27.11.2007 two other independent members withdrew their support to the Government thereby depleting the strength of the DAN alliance to 33. In view of the impending session of the House scheduled on 13.12.2007 the NPF party issued a whip to its members on 6.12.2007. Thereafter on 11.12.2007, 17 Congress MLAs, 2 MLAs belonging to the JD (U) and 3 independents signed a no-confidence motion and tabled the same before the Speaker. On 12.12.2007 the Speaker by another publication issued reiterated the directions dated 21.8.2006 issued under Rule 19 of the Disqualification Rules. On the said day i.e. 12.12.2007 one Dr. Shurhoz Elie, a NPF MLA filed a petition for disqualification of the three independent MLAs who had earlier withdrawn support to the DAN alliance Government. On the said petition the Secretary of the Assembly issued notice to the three independent MLAs to file their interim replies by 9.00 A.M. of the next