1998 Supreme(SC) 1058

1998(8) Supreme 16
Supreme Court of India
(From Judgment and Order of Speaker, Legislative Assembly, U.P.)
M.M. Punchhi, CJI, K.T. Thomas & M. Srinivasan, JJ.
Mayawati —Appellant
versus
Markandeya Chand & Ors. —Respondents
Civil Appeal No. 5057 of 1998
(Arising out of SLP (C) No. 8113 of 1998)
Decided on 9-10-1998
Counsel for the Parties :
For the Appearing Parties : Kapil Sibal, Dr. L.M. Singhvi, Ashok H. Desai, R.K. Jain, Rakesh Dwivedi and M.R. Sharma, Sr. Advocates, Ranjit Kumar, Ashok Nigam, Ms. Anu Mohla, Chander Bhushan, Rajesh Pathak, A. Kumar, Ajit Kumar Singh, Pallav Sisodia, Manoj Goel, Ms. Richa Goyal, Anurag Dubey, Ms. Rani Chhabra, S.N. Bhat, N.P.S. Panwar, Ajay K. Agarwal, Ms. Alka Agarwal, Ms. Anamica Agarwal, Manoj Goel, R.C. Verma, Chatanya Siddarth, Kamlendra Misra, K.N. Balgopal, Deven­dra Singh, Ms. Diva Singh, A.P. Mukunden and Y.P. Dhingra, Advocates.

Important Point
If act of cognising time of split in political party (for purpose of Xth Schedule of the Constitution) is administrative function of the Speak­er scope of judicial review of said administrative Act would be quali­tatively different than what it is when testing his quasi judicial order as Tribunal. Determination of the role of the Speaker under Paragraph 3 of Xth Schedule is necessary before the matter can be examined as to perversity or otherwise of the Speaker’s decision obligating him at a point of time to record categorically when the split took place thereby pinning the time of split. (Matter referred to Constitution Bench).

Headnote:Constitution of India—Tenth Schedule—Paragraphs 2(1)(a), 2(1) (b), 3 and 6—The Members of U.P. Legislative Assembly (Disqualifi­cation on ground of Defection) Rules, 1987—Rules 3, 6 and 7—Disqualification on ground of defection—Protection in case of split —Findings of Speaker on split—Scope of judicial review—Whether cognition of Speaker of occurrence of split administrative in nature unconnected with decision making on disqualification—Whether split can be recog­nised by Speaker only if it is followed up by steps prescribed in Rule 3 of Disqualification Rules—If act of cognising time of split is administrative function of Speaker scope of judicial review of said administrative act would be qualitatively different than what it is when testing his quasi judicial order as Tribunal—Kihoto Hollohan case 1992 Supp. (2) SCC 651 left role of Speaker under Paragraph 3 untouched—Determination of role under Paragraph 3 necessary before matter can be examined as to perversity or otherwise of Speaker’s decision obligating him at a point of time to record categorically when split took place thereby pinning time of split—Matter referred to Constitution Bench.

       Held : I need to emphasise at the outset, in the context above, the importance of recording of events which take place in the House, which means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State, because Clause (b) of Paragraph 3 provides that ‘from the time of such split, such faction shall deem­ingly become the political party. The Speaker/Chairman in the nature of his role when informed of a split is administratively the time keeper and he has to be definite in respect of the time of such split. Or is there any scope for procrastination? He is the Tribunal undoubt­edly for quasi-judicial purpose. (Para 1)

       In Kihoto Hollohan v. Zachillhu & Ors., 1992 Supp. (2) SCC, the majority, in Paragraph 109, has summed up the nature of the function exercised by the Speak­er/Chairman under Paragraph 6(1) to be that of a Tribunal and the scope of judicial review under Articles 136, 226 and 227 of the Con­stitution in respect of an order passed by the Speaker/Chair­man under Paragraph 6 to be confining to jurisdictional errors only viz., in­firmities based on violation of constitutional mandate, mala fides, non-com­pliance with rules of natural justice and perversity. The question however as to whether a Member of the House has become sub­ject to disqualification must arise for decision under Paragraph 6(1) of the Tenth Schedule only on its being referred for decision of the Speaker/ Chairman and not on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is not to apply to a case of split. Is not the cognition of the Speaker/Chairman of the occurrence of split not administrative in nature, unconnected with decision making on disqual­ification, or is it an adjunct thereto? Kihoto Hollohan is silent on this aspect. If the act of cognising ‘the time of such split’ is the administrative function of the Speaker/Chairman, the scope of judicial review of the said administrative act would, to my mind, be qualita­tively different than what it is when testing his quasi-judicial order as a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 of the Report, apparently confines to decision making by the Speaker/ Chairman in Paragraph 6(1) on reference of the question of disqualification, inviting his decision, and leaves his role under Paragraph 3 un­touched. These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of the Speaker’s decision, obligating him at a point of time to record categorically when the split took place thereby pinning ‘the time of such split’. I opine therefore that the matter be referred to the Constitution Bench for decision. (Para 2)

       Per Thomas J. :

       We will not say that rules of procedure are on par with the con­stitutional mandate incorporated in the Xth Schedule of the Constitution. Nonetheless, the procedure prescribed in the Disqualifi­cation Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority conferred by the Xth Sched­ule that Disqualification Rules are formulated “for giving effect to the provisions of this Schedule”. What would have happened if the Rules have not been formulated as enjoined by Paragraph 8 of the Xth Schedule? The provisions of the Xth Schedule would remain ineffective. So the Rules cannot be read in isolation from the provisions of the Xth Schedule, in stead they must be read as part of it. Of course, mere violation of a Rule is not enough to constitute violation of the provisions of the Xth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the non-adoption of the procedure cannot be side-lined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the Rules of procedure would very much help the authorities to decide whether there was violation of the con­sti­tution­al provision envisaged in the Xth Schedule. Before a claim is made by a member of the House under Paragraph 3 of the Xth Schedule a split in the politi­cal party should have arisen. Such a split must have caused its reaction in the Legislature Party also by formation of a group consisting of not less than one third of the members of that Legislature party. We have to bear in mind that clause (b) of Paragraph 3 mandates that “for the purposes of this paragraph” such factions shall be deemed to be the original political party of the member concerned “from the time of such split.” What is the overt act through which formation of such a group can be perceived by the Speaker? It is in this context that Rule 3 of the Disqualifica­tion Rules assumes relevance and importance. Unless the particulars required in the Rule are furnished how would the Speaker know, author­itatively, of the formation of such a group? Ordinarily such informa­tion must be furnished as early as possible. But there can be rare cases in which it may not be possible, due to situational reasons, to furnish the particulars soon after the formation of such a group. But the 30 days time provided in the Rule is not to be understood as any indication to dispense with the promptitude in furnishing those par­ticulars. The time 30 days fixed in Rule 3 must be treated as the outer limit within which the Speaker should be informed of the partic­ulars required. So the need for compliance with Rule 3 is not a bare formality. Insistence on compliance with the Rule is, therefore, to enable the Speaker to decide whether the protection envisaged in the 3rd Paragraph can be afforded to the members concerned. We are of the opinion that a Speaker has to consider the repercus­sions of non-compliance of a particular rule in the Disqualification Rules to ascertain how far it has affected the credibility of the case of a claimant who seeks protection under Paragraph 3 of the Xth Sched­ule. (Paras 23 to 25)

       The Speaker has accepted the plea of the respondents that there was a split as envisaged in Paragraph 3 of the Xth Schedule. The said finding can be subjected to judicial scrutiny only in the limited sphere indicated in Kihoto Hollohan (supra) viz. whether “the infirm­ities are based on violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity.” This is a case where appellant did not succeed in showing a case of mala fides or non-compliance with the rules of natural justice as for the conclusion arrived at by the Speaker. As pointed out earlier the main endeavour of the learned counsel was to show that the finding of the Speaker is vitiated by perversity in the sense that the conclusion is so unreasonable that no tribunal would have arrived at it on the given facts. (Para 26)

       It is suggested on behalf of the respondents that if the conclu­sion of the Speaker is based on some materials it is immune from judicial interference because of two broad restrictions. First is the extremely limited scope of judicial scrutiny which is permitted by law as indicated by the Constitution Bench in Kihoto Hollohan. Second is the positional height of the Speaker as a con­stitutional functionary upon whom the jurisdiction is conferred to determine the disputes under the Xth Schedule. Shri Ashok Desai, learned senior counsel contended for the extreme position that if the conclusion reached by the said functionary is a possible conclusion it stands insulated from any outside interference including by judicial exercise. The said extreme proposition may lead to the situation that, no matter, however illegal the order may be, it cannot be touched if its author is the Speaker. I am unable to concede such an immunity to any constitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is wheth­er the conclusion or the finding made by the Speaker is so unreasona­ble or so unconscionable that no tribunal should have arrived at it on the given materials. (Paras 27 & 28)

       Parameters for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. It was perhaps that approach which made Lord Hailsham to make his quaint comment that two reasonable persons can reach diametrically opposite conclusions on the same set of facts without either of them forfeiting the credential to be reasonable. However, the test of perversity has now bogged down to this: No con­clusion can be dubbed as perverse unless the unreasonableness is of such a dimension that no authority vested with the jurisdiction would have come to such a conclusion. (Para 29)

       The crucial circumstances which persuaded the Speaker to rely on the ipse dixit in the affidavit (stating that there was a split formed on 21.10.1997) filed by Markandeya Chand and Vansh Narain Patel on 25.2.1998 is that appellant has not controverted it. It must be remembered that it is an undisputed fact that at no time the number of BSP MLAs who voted for Kalyan Singh’s Government had reached the number 23 (which is the minimum number necessary to constitute the required percentage for forming a split as envisaged under the 3rd Paragraph of the Xth Schedule). It must further be remembered that the number of individual MLAs who held out that they left BSP had never reached 23 either then or even now. (Of course appellant had admitted that in addition to 12 respondents who had defected on 21.10.1997 some more MLAs subsequently crossed the floor and their number was only 5 and thus the total number of defectors reached 17). If what the Speaker has pointed out is correct (that the assertion contained in the affidavit filed by R-1 and R-6 on 25.2.1998 have not been controverted despite granting opportunity to do so) it is not proper to question the conclusion arrived at by the speaker that there was a split as envisaged in the Third Paragraph of the Xth Schedule. If that is the position this Court will not probe into all other criticisms made against the order passed by the Speaker. But a scruti­ny of the materials first shows that as a matter of fact no opportu­nity whatsoever was given to the appellant to controvert the asser­tions made in the affidavit of 25.2.1998. The observation of the Speaker to the contrary is without any foundation. The second glaring feature which has winched to the fore during judicial scrutiny is that the appellant had in fact strongly contro­verted the stand of the respondent regarding formation of a split. On the same day when 6th respondent filed the affidavit (i.e. 25.2.1998) specifying the names of 26 MLAs, the appellant had, on her own initia­tive, filed a petition at 7.40 P.M. pointedly repudiating the above claim of the respondents. (Paras 33 to 36)

       Appellant had produced affidavits of 9 MLAs along with the said petition. All such affidavits contained averments forcefully repudiat­ing the claim of the first respondent that on 21.10.1997 he got the support of 23 MLAs of BSP. Now the contention is that the said affidavits were procured in November, 1997 and hence they cannot be answers to the affidavits of the 1st respondent dated 25.2.1998. Explanation of the appellant for that is very important. According to the learned counsel for the appellant, she has been collecting affidavits of all the MLAs who loyally remained in the party since 1st respondent made a claim on 21.10.1997 that 23 MLAs have gone out of her party. She could get affidavits only one by one from all those MLAs who remained in the party so that she could show them whenever the need arose. Where was the opportunity for the appellant to produce the affidavits of 9 MLAs until 25.2.1998 when for the first time 1st respondent proclaimed the names of 26 MLAs who have defected on 21.10.1997? But when we per­ceived the promptitude with which appellant controverted it and sup­ported her statement with the affidavits of all the 9 MLAs, we feel that it is very unfortunate that she is accused of the charge that she has not controverted the affidavits filed by the respondents on 25.2.1998. Thus the basis of Speaker’s conclusion i.e. appellant has not denied the assertion of the respondents made in the affidavit dated 25.2.1998 is non-existent. If so, the Speaker must necessarily have other materials to decide that the number of deserters reached the crucial limit of 23. Even on the day when 1st respondent announced in the Assembly (21.10.1997) that 23 BSP MLAs under his leadership have separated from the parent party and decided to support Kalyan Singh’s Government the fact remained that only 12 MLAs (who are the respond­ents) voted in favour of the Government. The other MLAs who are al­leged to have joined the faction repudiated the allegation in unmis­takable terms. Thus when admittedly the number of BSP MLAs who sup­ported Kalyan Singh’s Government had never reached the figure 23 at any time, even subsequently, and when respondents could never even mention the names of those 23 MLAs at any time in spite of the Speaker granting opportunities to them for that purpose including the last opportunity on 9.2.1998, it is a perverse conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B men­tioned their names also. But all those 31 MLAs repudiated the allega­tions. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopt­ed, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the afore-cited illustration. (Paras 37 to 40)

       Consequently, the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group represent­ing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) of paragraph 2(1) of the Xth Sche­dule. (Para 41)

       Per Srinivasan, J. (Contra) :

       The only question of law raised by Mr. Sibal relates to the main­tainability of the plea of split in default of compliance with Rule 3 of the Rules. According to the learned counsel, the Rules having been framed in exercise of the powers conferred by para 8 of the Tenth Schedule for giving effect to the provisions of the schedule, have the same force as constitutional mandates and non-compliance thereof would disentitle the concerned party from invoking the provisions of the Constitution. Learned counsel submits that in the present case though the split was alleged to have taken place on 21.10.97, Markandeya Chand, the leader of JBSP did not within thirty days from the said date or for that matter till 25.2.98, the day on which the arguments before the Speaker were concluded furnish the statement etc. as set out in the Rule. Hence according to him the respondents were not entitled to raise the plea of split in this case. (Paras 82 & 83)

       Rule 3 provides for furnishing of information to the Speaker. Rule 6 provides for recording of such information in a register to be maintained by the Secretary. Will the recording of information in the register conclude the issue relating to the two requirements of para 3 of the Tenth Schedule? There is not even a provision for presumption as to the correctness of the entries in the register maintained under­ Rule 6. The entries would at best only show that such and such infor­mation was furnished by such and such member. The entries in the register cannot have any other effect whatever. Rule 10 enables the Speaker to issue from time to time such direc­tions as he may consider necessary in regard to the detailed working of the rules. Will such directions also be considered as constitution­al mandates? Rules 7, 8 and 9 set out the procedure for seeking disqualifica­tion of a member. In this case the petitions for disqualifications were filed even on 24.10.97 long before the expiry of the period of 30 days specified in Rule 3. The question of disqualification had to be decided in those petitions. The power to decide disputed disqualification under Para 6(1) of the Tenth Schedule is ‘preeminently of a judicial complexion’. The Speaker or the Chairman acting under Para 6(1) is a Tribunal (See ‘Hollohan’ 1992 Supp. (2) SCC 651). Can the entries in the register maintained under Rule 6 by the Secretary have the effect of establishing the two conditions required for para 3 of the Tenth Schedule? It can if at all be only a piece of evidence in support of the claim of one party. If as contended by the appellant’s counsel, failure to comply with the rule will prevent the raising of a plea of split, the compliance of the rule must have the effect of conclusively proving the conditions required for para 3. That will lead to an anomalous situation. When a disqualification proceeding is initiated against the members who claim the benefit of para 3 they can defeat the proceeding by furnishing some information to the Speaker under Rule 3 and getting it recorded in the Register under Rule 6. Thus a matter which has to be decided judicially under para 6(1) of the Tenth Schedule may get decided administratively by compliance of Rules 3 and 6. Undoubtedly such a status cannot be given to the rules which are only procedural. If the contention of Mr. Sibal is accepted, form will stand exalted over substance. (Paras 86 to 88)

       Merely because there is a delay in concluding the hearing, the order cannot be said to be perverse. The Speaker has framed the question properly as to whether a split as alleged by the respondents had taken place on 21.10.97 and whether it was supported by acceptable evidence. This Court in exer­cise of its power of limited judicial review has only to see whether the findings arrived at by the Speaker are perverse in the sense in which the expression “perversity” has been understood by this Court in several decisions. I am unable to accept that as a matter of law, delay in the completion of proceedings would by itself vitiate the order passed by him. But I wish to add that it is absolutely necessary for every Speaker to fix a time schedule in the relevant Rules for disposal of the proceedings for disqualification of MLAs or MPs. In my opinion all such proceedings shall be concluded and orders should be passed within a period of three weeks from the date on which the petitions are taken on file. (Paras 100 & 101)

       In the facts and circumstances of this case it can not be said that no reasonable or sensible person who had applied his mind to the question to be decided could have arrived at the findings given by the Speaker. It should not be forgotten while dealing with this question of perversity that according to the appellant’s counsel there was no bias or mala fide on the part of the Speaker. If the materials on record are considered on that basis it can at best be said that, if at all, two conclusions were possible and the Speaker has chosen one of them. In the circumstances I do not find any perver­sity in the findings rendered by the Speaker. (Para 117)

       The Speaker has considered the question of split within split alleged to have taken place in JBSP. It is unnecessary for the purpose of this case to go into that question. Such a subsequent split in JBSP is referred to by the respondents only for the purpose of explaining how there were only 19 members in that group on 25.2.98. The only relevant question is whether there was a split on 21.10.97 and the group which got separated from the BSP consisted of not less than one third members of the BSP legislature party. That question having been answered in favour of the respondents, it is not necessary to go into the question whether there was a further split in JBSP and if so, the effect thereof. After considering the materials on record, I am of the opinion that the findings arrived at by the Speaker are not vitiated by perversity. (Para 118)

       When the Tenth Schedule has expressly constituted the Speaker or the Chairman as the case may be to decide the question of disqualifica­tion and attach finality thereto, it is not for this Court to consider the facts and decide the said question by substituting their in the place of the Speaker. If the order of the Speaker is set aside on any of the grounds mentioned in ‘Hollohan’ ­(supra) by exercising the power of limited judicial review, the consequential course to be adopted is to leave the matter to the Speaker to decide afresh in accordance with law. (Para 121)