TMI Blog1996 (1) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... Malarchi Dravida Munnetra Khazhagam (`MDMK' for short) and hence they should, as per the provisions of law, be disqualified from the membership of the Assembly issued a notice under Section 7 of the Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986, and called for the comments of the appellants on the representation made by Subburethinam to disqualify them. The appellants filed Write Petitions Nos.3562 and 3563/95 in the High Court of Judicature at Madras and assailed the said notice of the Secretary of the Assembly, dated March 6, 1995. Sivaraj Patil, J. by order dated March 10, 1995 dismissed the writ petitions with the following observations: Having regard to the law declared by the Apex Court, I do not think it is appropriate to entertain these writ petitions. The Learned Senior Counsel for the Petitioner submitted that on similar questions this court has already entertained two writ petitions by the same petitioners in W.P. No. 5349 of 1994 and 5496 of 1994. When specifically asked, the learned Senior Counsel fairly submitted that as on the date when the earlier writ petitions were filed the petitioners were only unattached members having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he got elected to the Tamil Nadu Legislative Assembly as a candidate set up by a political party (viz.) All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.), 2. that for the purpose of Tenth Schedule, he shall be deemed to belong to the Political Party, i.e., All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.) in accordance with the explanatory note of Sub-para 2(1)(a), though he had been expelled from that party and declared as an `unattached' member by me, 3. that he has joined another Political Party, viz., Marumalarchi Dravida Munnetra Khazhagam, 4. that he has not denied any of the contents (sic) of the petitioner as alleged in the petition, and 5. that he does not come under the purview of the exception, envisaged in Paragraph 3 and 4 of the tenth Schedule. It was held that the appellants had incurred disqualification for being members of the Tamil Nadu Legislative Assembly under Article 191(2) of the Constitution of India read with clause (a) of sub-para (1) of Paragraph 2 of Tenth Schedule and had ceased to be members of the Assembly with immediate effect. The appellants filed writ petitions Nos.6331 and 6332/95 and assailed the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party amounts to `voluntarily giving up' the membership of the political party that had set him up as a candidate. Learned Counsel submitted that the deeming provision contained in the explanation should be given full effect and in the light of the finding that the appellants had joined another political party, the High Court was justified in confirming the conclusion of the Speaker that the appellants had voluntarily given up their membership of the political party that had set them up as candidates and had thereby incurred the disqualification for being members of the Assembly under Article 191(2) of the Constitution read with clause (a) of sub-paragraph (1) of paragraph 2 of the Tenth Schedule. Before we proceed further, we may notice the relevant provisions of the Constitution. Article 190 deals with `vacation of seats' and Article 191 speaks of `Disqualifications for membership'. The relevant parts of the said two articles with which we are concerned read as under: 190. (1) ................ (2) ................ (3) If a member of a House of the Legislature of a State - (a) becomes subject to any of the disqualifications mentioned in clause (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 or, as the case may be, article 188. The crucial point raised in these appeals centres round the interpretation to be placed on paragraph 2(1)(a) read with the explanation thereto of the Tenth Schedule. Does a member of a House, belonging to a political party, become disqualified as having voluntarily given up his membership of such political party on his joining another political party after his expulsion from the former? The legislative background for enacting the law affords a key for an understanding of the relevant provisions. What impelled the Parliament to insert the Tenth Schedule can be seen from the Statement of Objects and Reasons appended to the Bill which ultimately resulted in the Constitution (Fifty-Second Amendment) Act, 1985, quoted in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular word or to include matters which otherwise may or may not fall within the main provision. the law law laid down in this regard in East End Dwellings Co. Ltd. case (1952 AC 109 + 1951 (2) All. E.R. 587) has been followed by this Court in a number of cases, beginning from State of Bombay v. Pandurang (AIR 1953 SC 244) and ending with a recent decision of a three Judge Bench in M. Venugopal v. Divisional Manager (1994 (2) SCC 323). N.P. Singh, J., speaking for the Bench, stated the law thus at page 329: The effect of a deeming clause is well- known. Legislature can introduce a statutory fiction and courts have to proceed on the assumption that such state of affairs exists on the relevant date. In this connection, one is often reminded of what was said by Lord Asquith in the case of East End Dwellings Co. Ltd. V. Finsbury Borough Council that when one is bidden to treat an imaginary state of affairs as real, he must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which inevitably have flowed from it - one must not permit his imagination to boggle when it comes to the inevitably corollaries of that state of affairs. It appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d does not alter the fact to be assumed under the explanation to paragraph 2(1). Such an arrangement and labelling has no legal bearing so far as the Tenth Schedule is concerned. If the contention urged on behalf of the appellant is accepted it will defeat the very purpose for which the Tenth Schedule came to be introduced and would fail to suppress the mischief, namely, breach of faith of the electorate. We are, therefore, of the opinion that the deeming fiction must be given full effect for otherwise the expelled member would escape the rigor of the law which was intended to curb the evil of defections which had polluted our democratic polity. Mr. Shanti Bhushan laid stress on paragraph 1(b) of the Tenth Schedule and contended that the Legislative Party in relation to a member of a House belonging to any political party means the group consisting of all the members of that House for the time being belonging to that political party, and so understood, the appellants who were thrown out or expelled from the party, did not belong to that political party nor will they be bound by any whip given by that party, and so, they are unattached members who did not belong to any political ..... X X X X Extracts X X X X X X X X Extracts X X X X
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