TMI Blog2004 (10) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Constituency as a candidate of Indian National Congress. The notification for holding elections to Fourteenth Lok Sabha was issued in March, 2001. The petitioner contested the said election from Maharajganj Parliamentary Constituency as an independent candidate. Shri Salman Rageev, a member of Bihar Legislative Council, sent a petition to the Chairman of the Legislative Council on 10th June, 2004 stating, inter alia, that the petitioner, who was a member of the Congress Party, had contested the parliamentary election from Maharajganj Constituency as an independent candidate and consequently in view of the provisions of the Tenth Schedule to the Constitution he had become disqualified for being a member of the House. The petitioner was asked to submit his explanation vide letter dated 12th June, 2004 of the Secretary of the Council. After considering the explanation offered by the petitioner, the Chairman of the Legislative Council passed the impugned order dated 26th June, 2004 holding that the petitioner had contested the election for Bihar Legislative Council in the year 1998 as a candidate of the Congress Party and was a member of the said political party and that he had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aryana, M.P., Punjab, Rajasthan, U.P. and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The Committee noted multiple acts of defections by the same person or set of persons and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections. (See Kihoto Hollohan v. Zachillhu Ors. 1992 (Supp) 2 SCC 651 paras 5 and 6). 5. Keeping in view the recommendations of the Committee on Defections several Bills were introduced for amending the Constitution, but they lapsed. Finally, a Bill which was enacted into Constitution (Fifty- second Amendment) Act, 1985 was passed by which Tenth Schedule was added with effect from 1.3.1985. The Statement of Objects and Reasons appended to the Bill read as under : 1. 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 President to Parliament that the Government intended to introduce in the current session of Parliament an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the provisions of paragraph 2, paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) 'original political party', in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) 'paragraph' means a paragraph of this Schedule. 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 authorized 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. Exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. 7. Paragraph 2 of the Tenth Schedule lays down the contingencies under which a member of the House belonging to any political party shall be disqualified for being a member of the House and they are enumerated in sub-paras (1), (2) and (3). Sub-para (2) deals with a situation where a member of the House elected as an independent candidate joins any political party after such election and sub-para (3) deals with a situation where a nominated member of the House joins any political party after the expiry of six months from the date on which he takes a seat. Sub-para (1) deals with a situation where a member of a House belonging to any political party voluntarily gives up his membership of such political party. It also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter connected with disqualification of a member of a House under the Schedule. as it says that notwithstanding anything in the Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of House under this Schedule. This provision being in the Constitution itself, unlike a statutory provision, it effects the power of judicial review of the High Court and Supreme Court under Articles 226, 227 and 136 of the Constitution. Further, in view of the provision contained in sub-paragraph (2) of paragraph 6 the proceedings in relation to disqualification of a member of the House shall be deemed to be proceedings in Parliament within the meaning of Article 122 or in the Legislature of a State within the meaning of Article 212, as the case may be. These are identical provisions which provide that validity of any proceedings in Parliament or Legislature shall not be called in question on the ground of any alleged irregularity in procedure. The vires of Tenth Schedule was challenged on several grounds including the ground that the power of judicial review being part of the basic structure of the Constitution, cannot be taken away ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this conduct alone, the Speaker held that they had given up membership of the MGP party and disqualified them for being a member of the House. The decision of the Speaker under which he held that the two MLAs shall be disqualified for being a member of the House under paragraph 2(1)(a) of the Schedule was upheld by this Court. The scope and amplitude of paragraph 2(1)(a) was explained as under in para 11 of the reports : 11. The said paragraph provides for disqualification of a member of a House belonging to a political party if he has voluntarily given up his membership of such political party . The words voluntarily given up his membership are not synonymous with resignation and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs . 10. In G. Viswanathan Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly Ors. 1996 (2) SCC 353 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er question is when does a person voluntarily give up his membership of such political party, as provided in para 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member. 11. In the present case, the Chairman of the Legislative Council has held that the petitioner had been elected to the Legislative Council on the ticket of the Indian National Congress but he contested the parliamentary election as an independent candidate. On these facts a conclusion has been drawn that he has given up his membership of Indian National Congress. This being a matter of record, the petitioner could not possibly dispute them, and that is why he has admitted these facts in the writ petition as well. In such a situation there can be no escape from the conclusion that the petitioner has incurred the disqualification under paragraph 2(1)(a) of the Sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guide to the meaning of delegated legislation and the extent of the power to make it. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate's function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provision. But such a power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary its ends.(see Section 59 in chapter Delegated Legislation in Francis Bennion's Statutory Interpretation 3rd Edn.). The aforesaid principle will apply with greater rigour where rules have been framed in exercise of power conferred by a constitutional provision. No rules can be framed which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not say that the prior permission has to be in writing and, therefore, it can be oral as well. Similarly, the manner in which condonation has to be expressed has not been indicated. Therefore, for holding that a member of a House has incurred a disqualification under Clause (b) of paragraph 2(1) findings on several aspects will necessarily have to be recorded. Similarly, for application of paragraph 4, inquiry has to be made whether the original political party merged with another political party, whether the member of the House has become member of such other political party or, as the case may be, of a new political party formed by such merger or whether he has not accepted the merger and opted to function as a separate group. 16. Sub-rule (1) of Rule 6 says that no reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation to such member made in accordance with the provisions of the said Rule and sub-rule (6) of the same Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and verified in the manner laid down in the CPC for the verification of pleadings, is that frivolous petitions making false allegations may not be filed in order to cause harassment. It is not possible to give strict interpretation to Rules 6 and 7 otherwise the very object of the Constitution (Fifty-second Amendment) Act by which Tenth Schedule was added would be defeated. A defaulting legislator, who has otherwise incurred the disqualification under paragraph 2, would be able to get away by taking the advantage of even a slight or insignificant error in the petition and thereby asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they are held to be directory in nature as otherwise, on strict interpretation, they would be rendered ultra vires. 17. The petition filed by Shri Salman Rageev was signed and verified in the following manner : All the facts stated in this petition are true and correct to my knowledge and belief and no part of it is false. Sd/- (Salman Rageev) M.L.C. 10.06.2004 18. There cannot be any dispute that sub-rules (1), (2) and (3) of Order VI Rule 15 CPC were co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case. 19. Shri Mishra has next submitted that the Chairman of the Bihar Legislative Council did not afford an opportunity of personal hearing to the petitioner and he also relied upon certain material, copy of which was not furnished to the petitioner and consequently the rules of natural justice have been violated. We do not find any substance in the contention raised. Initially, the Secretary of the Bihar Legislative Council sent a letter dated 19th May, 2004 to the petitioner stating that the petitioner had contested the election for Bihar Legislative Council as a candidate of Indian National Congress and that information had been received that he had contested the Parliamentary Election, 2004 as an independent candidate. Attention of the petitioner was invited to Article 191 (2) and Tenth Schedule to the Constitution of India and he was asked to submit his clarification within seven days. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chandra Prasad Singh had ceased to be a member of Indian National Congress for violating the party discipline is concerned, the only relevant fact stated therein is that the petitioner had been elected as a member of the Bihar Legislative Council on a Congress ticket but he had contested the parliamentary election as an independent candidate. These facts have never been disputed by the petitioner in his replies, which he submitted before the Chairman of the Legislative Council and have also been admitted in paragraphs 5 and 7 in the present writ petition. Therefore, the non-supply of copy of the letter of the leader of the Congress Legislative Party has no bearing at all as no prejudice can be said to have been caused to the petitioner and consequently in the facts of the present case, no principle of natural justice can be said to have been violated. 20. The third submission of Shri Mishra has hardly any substance. In view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the Tenth Schedule, the petitioner shall be deemed to belong to Indian National Congress Party by which he was set up as a candidate for contesting the election for member of Legislative Counc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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