TMI Blog2007 (2) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Samajwadi Party staked his claim before the Governor for forming a Government. On 27.8.2003, 13 Members of the Legislative Assembly (hereinafter referred to as, M.L.As. ) elected to the Assembly on tickets of B.S.P., met the Governor and requested him to invite the leader of the Samajwadi Party to form the Government. Originally, 8 M.L.As. had met the Governor and 5 others joined them later in the day, making up the 13. 3. The Governor did not accept the recommendation of Mayawati cabinet for dissolution of the Assembly. On 29.8.2003, the Governor invited the leader of the Samajwadi Party, Mr. Mulayam Singh Yadav to form the Government and gave him a time of two weeks to prove his majority in the Assembly. On 4.9.2003, Mr. Swami Prasad Maurya, leader of the Legislature B.S.P filed a petition before the Speaker in terms of Article 191 read with the Tenth Schedule to the Constitution of India, praying that the 13 B.S.P. M.L.As. who had proclaimed support to Mulayam Singh Yadav before the Governor on 27.8.2003, be disqualified in terms of paragraph 2 of the Tenth Schedule to the Constitution on the basis that they had voluntarily given up their membership of B.S.P., their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the writ petitioner was heard in detail. No order was passed, but the matter was adjourned to the next day at the request of counsel, who was apparently representing the Advocate General of the State. From 6.11.2003, the matter was adjourned to 10.11.2003 and on the request of the learned Advocate General, it was directed to be listed on 14.11.2003. The same day, the Speaker before whom the petition filed by the writ petitioner Maurya seeking disqualification of 13 of the members of the B.S.P. was pending, after noticing what he had done earlier on 6.9.2003 and 8.9.2003, passed an order adjourning the petition seeking disqualification, on the ground that it would be in the interests of justice to await the decision of the High Court in the pending Writ Petition since the decision therein on some of the issues, would be relevant for his consideration. It was therefore ordered that the petition for disqualification may be placed before him for disposal and necessary action after the High Court had decided the Writ Petition. 5. In the High Court, the Writ Petition had a chequered career. On 14.12.2003, when it came up, it was directed to be listed the next week before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to be posted on 2.5.2005 for hearing. After a number of adjournments mainly at the instance of the respondents in the Writ Petition, arguments were commenced. On 12.5.2005, counsel for the writ petitioner concluded his arguments and the case was further adjourned to 25.5.2005 for further hearing after taking certain counter affidavits on record. Ultimately, the argument of one of the counsel for the respondents was started and the matter was adjourned to 6.7.2005 for completion of his arguments and for arguments by other counsel for the respondents in the Writ Petition. 7. Meanwhile, on 7.9.2005, the Speaker passed an order rejecting the petition filed by Maurya for disqualification of 13 M.L.As. of B.S.P. It may be noted that the Speaker had earlier adjourned that application for being taken up after the Writ Petition was decided. Meanwhile, the arguments went on in the High Court and the Writ Petition was directed to be put up on 17.8.2005 for further arguments. The matter was adjourned to the next day and again to subsequent dates. 8. On 8.9.2005, an application was made on behalf of the respondents seeking dismissal of the Writ Petition in view of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whatever may be our ultimate decision on the merits of the case, we must express our unhappiness at the tardy manner in which a matter of some consequence and constitutional propriety was dealt with by the High Court. More promptitude was expected of that court and it should have ensured that the unfortunates happenings (from the point of view of just and due administration of justice) were avoided. Though we are normally reluctant to comment on the happenings in the High Court, we are constrained to make the above observations to emphasis the need to ensure that no room is given for criticism of the manner of working of the institution. 12. The respondents in the Writ Petition, the M.L.As. constituting 37 B.S.P. members who left the party, are the appellants in all the appeals except the appeal arising out of Special Leave Petition (Civil) No. 6323 of 2006 filed by the writ petitioner \026 Maurya. Whereas, the respondents in the Writ Petition challenge the decision of the majority of the Bench remitting the matter to the Speaker, the writ petitioner, in his appeal challenges the order of remand made by the majority on a plea that on the pleadings and the materials available, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the Samajwadi Party in terms of paragraph 4 of the Tenth Schedule, they could not be held to be disqualified on the ground of defection in terms of paragraph 2(1)(a) of the Tenth Schedule. The Speaker, as noticed, did not pass any order on the application for disqualification of 13 M.L.As. made by Maurya, the leader of the B.S.P. Legislature Party in terms of paragraph 2 of the Tenth Schedule but proceeded to pass an order on the petition filed by 37 M.L.As. before him, claiming that there has been a split in B.S.P. and they constituted one third of the Legislature Party which had 109 members. When he passed the order on the claim of the M.L.As. who had left B.S.P., the then Speaker postponed the decision on the petition for disqualification filed by Maurya, later adjourned it to await the decision in the Writ Petition, but still later, the successor Speaker went back on that order and proceeded to dismiss it after entertaining an alleged preliminary objection even while the Writ Petition was still pending and it was being argued, on the ground that he had already recognised the split. 15. It was thereafter that the writ petitioner sought for an amendment of the Writ Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate group which represents the new faction arising out of the split. Our number is more than one third of the total number of Members of the erstwhile Bahujan Samaj Party of the Legislative Assembly. It is, therefore, requested that the aforesaid Loktantrik Bahujan Dal be recognised as a separate group within the Legislative Assembly and a separate arrangement for their seating inside the Assembly be made. It was signed by 37 M.L.As. 17. It is on this application that the Speaker passed an order the same evening and it is that order that is the subject matter of challenge in the Writ Petition filed before the High Court. The order of the Speaker records that as per the contents of the application, a meeting of members, office bearers and Members of Legislative Assembly belonging to B.S.P. was held on 26.8.2003 in the Darulshafa and in this meeting, it was unanimously resolved that a new faction in the name of Loktantrik Bahujan Dal under the leadership of Rajendra Singh Rana be constituted. The Speaker proceeded to reason that the number of members who have constituted the group are seen to be 37 out of 109 and that would constitute one-third of the total number of Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he grounds mentioned in para 2 of the 10th Schedule. The Speaker also overruled the argument that only 13 M.L.As. had originally quit the original political party and they should be disqualified and the others subsequently joining them would not improve the position. The Speaker proceeded to observe that he had to decide the question of disqualification of the 13 M.L.As. raised by Maurya functioning as a Tribunal and he would be taking a decision thereon at the appropriate time. It was thus that the claim of 37 members of a split, was recognised by the Speaker. The Speaker thus did not decide whether there was a split in the original political party, even prima facie. 18. The same day, the Speaker also entertained another application from the 37 M.L.As. and ordered that he was recognising the merger of the Lok Tantrik Bahujan Dal in the Samajwadi Party. 19. The Speaker had relied on an observation in Ravi S. Naik Vs. Union of India [(1994) 1 S.C.R. 754] to justify the acceptance of the position adopted by the 37 M.L.As. for recognition of a split that it was enough if they made a claim of split in the original political party. In paragraph 36 of that judgment, after se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore quashed the order of the Speaker and directed the Speaker to reconsider the question of defection raised by the writ petitioner \026 Maurya, in the light of the stand adopted by some of the M.L.As. before the Speaker that there has been a split in terms of paragraph 3 of the Tenth Schedule and so they have not incurred the disqualification in terms of paragraph 2 of the Tenth Schedule. This majority view and the interference with the order of the Speaker is challenged by the various respondents in the Writ Petition forming the group of 37. The writ petitioner himself has challenged that part of the order which purports to remand the proceeding to the Speaker by taking up the position that on the materials, the High Court ought to have straightaway held that the defence under paragraph 3 of the Tenth Schedule to the Constitution has not been made out by the 37 members of B.S.P. and that the 13 of them in the first instance and the balance 24 in the second instance stood disqualified in terms of paragraph 2(1)(a) of the Tenth Schedule to the Constitution. 21. Elaborate arguments have been raised before us on the interpretation of the Tenth Schedule, the content of the va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule was called upon to decide the question of disqualification and only to a decision by him on such a question, that the qualified finality in terms of paragraph 6(1) got attached and not to a decision independently taken, purporting to recognise a split. He pointed out that in this case, the Speaker had not decided the petition for disqualification filed against the 13 M.L.As., and the Speaker had only proceeded to decide the application made by 37 members subsequently for recognising them as a separate group on the ground that they had split from the original B.S.P. in terms of paragraph 3 of the Tenth Schedule. He submitted that no such separate decision was contemplated in a proceeding under the Tenth Schedule since the claim of split was only in the nature of a defence to a claim for disqualification on the ground of defection and it was only while deciding the question of defection that the Speaker could adjudicate on the question whether a claim of split has been established. When an independent decision is purported to be taken by the Speaker on the question of split alone, the same was a decision outside the Tenth Schedule to the Constitution and consequently, the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members concerned. It is therefore not possible to accede to the argument that under the Tenth Schedule to the Constitution, the Speaker has an independent power to decide that there has been a split or merger of a political party as contemplated by paragraphs 3 and 4 of the Tenth Schedule to the Constitution. The power to recognise a separate group in Parliament or Assembly may rest with the Speaker on the basis of the Rules of Business of the House. But that is different from saying that the power is available to him under the Tenth Schedule to the Constitution independent of a claim being determined by him that a member or a number of members had incurred disqualification by defection. To that extent, the decision of the Speaker in the case on hand cannot be considered to be an order in terms of the Tenth Schedule to the Constitution. The Speaker has failed to decide the question, he was called upon to decide, by postponing a decision thereon. There is therefore some merit in the contention of the learned counsel for the B.S.P. that the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a consequence of that split, that they together constituted one-third of the total number of legislators elected on the tickets of that party. He has also the right to take up a plea that there has been a merger of his party with another party in terms of paragraph 4 of the Tenth Schedule. Call it a defence or whatever, a claim under paragraph 3 as it existed prior to its deletion or under paragraph 4 of the Tenth Schedule, are really answers to a prayer for disqualifying the member from the legislature on the ground of defection. Therefore, in a case where a Speaker is moved by a legislature party or the leader of a legislature party to declare certain persons disqualified on the ground that they have defected, it is certainly open to them to plead that they are not guilty of defection in view of the fact that there has been a split in the original political party and they constitute the requisite number of legislators or that there has been a merger. In that context, the Speaker cannot say that he will first decide whether there has been a split or merger as an authority and thereafter decide the question whether disqualification has been incurred by the members, by way of a judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 3 of the Schedule or paragraph 4 of the Schedule, independent of any question arising before him in terms of paragraph 2 of the Schedule. Considering the scheme of the Tenth Schedule in the context of Articles 102 and 191 of the Constitution and the wording of paragraph 6 and the conferment of jurisdiction on the Speaker thereunder, we are inclined to the view that the position adopted by the majority of the High Court of Punjab Haryana in the above decision as to the scope of the Tenth Schedule, reflects the correct legal position. Under the Tenth Schedule, the Speaker is not expected to simply entertain a claim under paragraphs 3 and 4 of the Schedule without first acquiring jurisdiction to decide a question of disqualification in terms of paragraph 6 of the Schedule. The power if any, he may otherwise exercise independently to recognise a group or a merger, cannot be traced to the Tenth Schedule to the Constitution. The power under the Tenth Schedule to do so accrues only when he is called upon to decide the question referred to in paragraph 6 of that Schedule. 29. In the case on hand, the Speaker had a petition moved before him for disqualification of 13 members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 7.9.2005 by purporting to accept a so called preliminary objection raised by the 13 M.L.As. sought to be disqualified, to the effect that his recognition of the split of the 37 M.L.As. including themselves, has put an end to that application. This last order is clearly inconsistent with the Speaker s earlier order dated 14.11.2003 and still leaves open the question whether the petition seeking disqualification should not have been decided first or at least simultaneously with the application claiming recognition of a split. If the order recognising the split goes, obviously this last order also cannot survive. It has perforce to go. 31. Considerable arguments were addressed on the scope of paragraph 2 and paragraph 3 of the Tenth Schedule with particular reference to the point of time that must be considered to be relevant. Whereas it was argued on behalf of leader of B.S.P. that the liability or disability is incurred at the point of voluntarily giving up the membership of the political party, according to the 37 M.L.As. who left, the relevant point of time is the time when the Speaker takes a decision on the plea for disqualification. As a corollary to the above, the conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h paragraphs 3 and 4 of the Tenth Schedule is called for. One thing is clear that defection is a ground for disqualifying a member from the House. He incurs that disqualification if he has voluntarily given up his membership of his original political party, meaning the party on whose ticket he had got elected himself to the House. In the case of defiance of a whip, the party concerned is given an option either of condoning the defiance or seeking disqualification of the member concerned. But, the decision to condone must be taken within 15 days of the defiance of the whip. This aspect is also relied on for the contention that the relevant point of time to determine the question is when the Speaker actually takes a decision on the plea for disqualification. 34. As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up by the Speaker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stand of the petitioner before the Speaker for recognition of a split. The position as on 6.9.2003 when the 37 MLAs presented themselves before the Speaker would not have relevance on the question of disqualification which had allegedly been incurred on 27.8.2003. 36. The question whether for satisfying the requirements of paragraph 3, it was enough to make a claim of split in the original political party or it was necessary to at least prima facie establish it, fell to be considered in the decision in Jagjit Singh Vs. State of Haryana (supra) rendered by a Bench of three Judges to which one of us, (Balasubramanyan, J.) was a party. Dealing with an argument that a claim of split in the original political party alone is sufficient in addition to showing that one-third of the members of the legislature Party had formed a separate group, the learned Chief Justice has explained the position as follows: Learned counsel for the petitioner, however, relies upon paragraph 37 in Ravi S. Naik s case in support of the submission that only a claim as to split has to be made and it is not necessary to prove the split. The said observations are: In the present case the first re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be said that the learned Judges have held that a mere claim in that behalf is enough. As pointed out in Jagjit Singh (supra) the sentence in paragraph 37 in Ravi S. Naik s case (supra) cannot be read in isolation and it has to be read along with the relevant sentence in paragraph 38 quoted in Jagjit Singh (supra). 38. Acceptance of the argument that the legislators are wearing two hats, one as members of the original political party and the other as members of the legislature and it would be sufficient to show that one third of the legislators have formed a separate group to infer a split or to postulate a split in the original party, would militate against the specific terms of paragraph 3. That paragraph speaks of two requirements, one, a split in the original party and two, a group comprising of one third of the legislators separating from the legislature party. By acceding to the two hat theory one of the limbs of paragraph 3 would be made redundant or otios. An interpretation of that nature has to be avoided to the extent possible. Such an interpretation is not warranted by the context. It is also not permissible to assume that the Parliament has used words that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. The position was reiterated by the Constitution Bench in Raja Ram Pal Vs. The Hon ble Speaker, Lok Sabha Ors. [JT 2007 (2) SC 1]. We are of the view that contours of interference have been well drawn by Kihoto Hollohan (supra) and what is involved here is only its application. 40. Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of paragraph 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf. He has entered no finding whether a split in the original political party was prima facie proved or not. This action of his, is apparently based on his understanding of the ratio of the decision in Ravi S. Naik s case (supra). He has misunderstood the ratio t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the B.S.P. who had met the Governor on 27.8.2003, had sat with members of the Samajwadi Party in the Assembly and an objection was raised to it. The Speaker got over the situation by saying that the only business on the agenda that day was obituary references and the question need not be raised that day. It is, therefore, contended that on the facts, it is crystal clear that the 13 members sought to be disqualified had defected and the defection is manifest by their meeting the Governor on 27.8.2003 requesting him to call upon the leader of the Samajwadi Party to form the Government. 43. As against these submissions, it is contended that it was for the Speaker to take a decision in the first instance and this Court should not substitute its decision for that of the Speaker. It is submitted that the High Court was therefore justified in remitting the matter to the Speaker, in case this Court did not agree with the 37 MLAs that the decision of the Speaker did not call for interference. 44. Normally, this Court might not proceed to take a decision for the first time when the authority concerned has not taken a decision in the eyes of law and this Court would normally rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of the offices of Ministers, we think that as a Court bound to protect the Constitution and its values and the principles of democracy which is a basic feature of the Constitution, this Court has to take a decision one way or the other on the question of disqualification of the 13 MLAs based on their action on 27.8.2003 and on the materials available. 46. The main thrust of the argument on the side of the 13 MLAs included in the 37 MLAs, has been that it was enough if a claim of a split in the original political party had been made and it was not necessary to establish any such split and it was enough for them to show that 37 of them had signed the petition filed before the Speaker on 6.9.2003. We have held on an interpretation of paragraph 3 and in approval of the ratio in Jagjit Singh (supra) that the 37 MLAs which includes the 13 MLAs in question had to establish a split in the original political party, here BSP, before they can get the protection offered by paragraph 3. The question is whether they have proved at least prima facie any such split. 47. The first act on the part of the 13 MLAs which is relevant is the giving of letters by them to the Governor, the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge to the meeting on 26.8.2003 was only raised belatedly in the writ petition. On a scrutiny of the pleadings in the original writ petition, we cannot also agree with that latter submission. 48. The act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government, itself would amount to an act of voluntarily giving up the membership of the party on whose ticket the said members had got elected. Be it noted that on 26.8.2003, the leader of their party had recommended to the Governor, a dissolution of the Assembly. The first eight were accompanied by Shivpal Singh Yadav, the General Secretary of the Samajwadi Party. In Ravi Naik (supra) this Court observed: A person may voluntarily give up his membership of an original 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 the 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. 49. Clearly, from the conduct of meeting the Governor accompanied by the General Secretary of the Sama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b), which has been set out earlier; but in this case of ours, where is the proof before the Speaker of the split in the original party? Were any minutes tendered before the Speaker showing that so many lacs or millions of the original Bahujan Dal decided to split? A claim that on 26.08.2003, there were some party members along with the MLAs at the Darulshafa in Lucknow is not enough; it is too inadequate. The Bahujan Dal is too big; its party membership is too numerous for it to suffer a split in such a comparatively minor meeting, even if it took place on 26.8.2003. There was no intimation that one group was going to split; even the name Loktantrik Bahujan Dal found its place for the first time on paper on 6.9.2003; there were no Newspaper reports; there were no statements of dissatisfied party members; the core of the Bahujan Dal was not asked to rectify its behaviour or else. The threat of a split was not even made imminent; nothing like this happened; only one evening, it is claimed, the Bahujan Dal had split and a faction had arisen. This is so cursory as not to class as a split in the original party at all. Look at the split in Congress-O, which resulted in Congress-I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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