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2005 Supreme(Gau) 534
IN THE HIGH COURT OF GAUHATI (KOHIMA BENCH)
AFTAB H. SAIKIA, J.
Imkong Imchen and Ors. – Appellant
Vs.
Union of India (UOI) and Ors. – Respondent
W.P. (C) No. 148 (K) of 2004
Decided On: 28.07.2005
Advocate Appeared
For Appellant/Petitioner/Plaintiff: P.L. Aier, Adv.
For Respondents/Defendant: K. Meruno, Asstt. Solicitor General, T.B. Jamir, Central Govt. Counsel, I. Jamir, Addl. Adv. General and L.S. Jamir, Govt. Adv.
The provision prohibiting elected independent members from joining any political party after their election is not discriminatory and does not violate the basic structure of the Constitution.
Headnote:
Anti-Defection Law - Violation of Basic Structure - TENTH SCHEDULE - 2
Fact of the Case:
The petitioners, elected members of the Nagaland Legislative Assembly, challenged sub-para (2) of the TENTH SCHEDULE of the Constitution of India, arguing that it created unreasonable discrimination between elected independent members and nominated members in joining political parties.
Finding of the Court:
The court found that the provision prohibiting elected independent members from joining any political party after their election is not discriminatory and does not violate the basic structure of the Constitution.
Issues: The main issue was whether sub-para (2) of the TENTH SCHEDULE violated the basic structure of the Constitution by creating unreasonable discrimination.
Ratio Decidendi: The court held that the provision was within the purview of its Constitutional validity and not discriminatory.
Final Decision: The writ petition was dismissed.
A.H. Saikia, J.
1. Heard Mr. P. L. Aier, learned counsel for the petitioner. Also heard Mr. K. Meruno, learned Asstt. Solicitor General assisted by Mr. T. B. Jamir. learned Central Govt. Counsel for the Union,; of India and Mr. I. Jamir, learned Addl. Advocate General, Nagaland assisted by Mr. L.S. Jamir, learned Govt. Advocate, Nagaland for the State respondent.
2. By this writ petition, the 4(four) petitioners who are elected members of the Xth Nagaland Legislative Assembly as independent candidate elected from their respective Constituency have assailed sub-para (2) of the Paragraph 2 of the TENTH SCHEDULE of the Constitution of India being violative of the basic structure of the Constitution of India.
3. According to Mr. Aier, the learned counsel appearing on behalf of the petitioners the sole ground of challenge of the aforesaid provision is that sub-para (2) of Para 2 creates an unreasonable discrimination to an elected independent member to that of a nominated member to a House as enshrined in sub-para (3) of Para 2 of the TENTH SCHEDULE. His contention is that when a nominated member of a House is permitted to join any political party before the expiry of 6 (six) months from the date on which he takes his seat as a nominated member as per Sub-para (3) of Para 2, an elected member of a House has been debarred from joining any political party after being elected as independent candidate.
4. To answer this short question so raised, it will be apposite and necessary to refer to the provisions under attack and the same may be noticed as under :-
TENTH SCHEDULE
2. Disqualification on ground of defection.-
...
(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.
(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99, as the case may be, Article 188.
5. From a bare perusal of the above provision of TENTH SCHEDULE which is popularly known as Anti-Defection Law, it appears that a member elected to a House as a candidate not being set up by any political party shall be disqualified for being a member of the House if he joins any political party after his such election. In other words, a member elected as independent candidate is prohibited from joining any political party after his election as an independent candidate. Otherwise in case of such joining any political party, he shall be disqualified. So far sub-para (3) of Para 2 is concerned, a member of a House who has been nominated shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or Article 188 of the Constitution of India which provide for subscribing an other before taking his seat in the respective House as the case may be. In otherwords, a nominated member is debarred from joining any political party after the expiry of six months from the date on which he takes his seat after subscribing oath in the House to which he is elected.
6. The TENTH SCHEDULE i.e. Anti Defection Law was inserted by Constitution (52nd Amendment) Act, 1985 making it operational with effect from 1-3-1985 with a specific purpose and such purpose manifestly emerges from the Statement of Objects and Reasons appended to the Bill itself which was later on adopted as the Constitution (52nd Amendment) Act, 1985 which speaks as follows :—
The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the Preside
