Manipur High Court
Shri Kshetrimayum Biren Singh vs The Hon'Ble Speaker on 2 June, 2021
Yumkh Digitally signed
by Yumkham
am Rother
Date:
IN THE HIGH COURT OF MANIPUR
2021.06.02
Rother 16:17:13 +05'30'
AT IMPHAL
WP(C) No. 332 of 2020
Shri Kshetrimayum Biren Singh, aged about 58 years old, S/O (L) Ksh.
Pishak Singh, a resident of Sabungkhok, P.O. Yaingangpokpi, P.S.
Lamlai, Imphal East District, Manipur - 795145.
....Petitioner.
-Versus -
1. The Hon'ble Speaker, Manipur Legislative Assembly, Acting as
Presiding Officer of the Tribunal Constituted under Tenth Schedule to the
Constitution of India, Assembly Complex, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001.
2. The Secretary, Manipur Legislative Assembly, Assembly Complex,
P.O. & P.S. Imphal, Imphal West District, Manipur-795001.
3. Okram Henry Singh, aged about 35 years, S.O (L) O.Lukhoi Singh of
Mantripukhri, P.O. Mantripukhri & P.S. Heingang, Imphal East District,
MLA, Wangkhei Assembly Constituency, Manipur-795002.
.....Respondents.
WP(C) No. 360 of 2020
Shri Kshetrimayum Biren Singh, aged about 58 years old, S/O (L) Ksh.
Pishak Singh, a resident of Sabungkhok, P.O. Yaingangpokpi, P.S.
Lamlai, Imphal East District, Manipur - 795145.
...Petitioner.
-Versus-
1. The Hon'ble Speaker, Manipur Legislative Assembly, Acting as
Presiding Officer of the Tribunal Constituted under Tenth Schedule to the
Constitution of India, Assembly Complex, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001.
2. The Secretary, Manipur Legislative Assembly, Assembly Complex,
P.O. & P.S. Imphal, Imphal West District, Manipur-795001.
3. Paonam Hearabi, aged about 56 years old, S/O (L) P. Anganghan of
TellouMayai Leikai, P.S. Lamlai & P.O. Lamlong, Imphal East District,
Manipur - 795010.
.... Respondents.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 1
WP(C) No. 361 of 2020
Shri Kshetrimayum Biren Singh, aged about 58 years old, S/O (L) Ksh.
Pishak Singh, a resident of Sabungkhok, P.O. Yaingangpokpi, P.S.
Lamlai, Imphal East District, Manipur - 795145.
...Petitioner.
-Versus-
1. The Hon'ble Speaker, Manipur Legislative Assembly, Acting as
Presiding Officer of the Tribunal Constituted under Tenth Schedule to the
Constitution of India, Assembly Complex, P.O. & P.S. Imphal, Imphal
West District, Manipur-795001.
2. The Secretary, Manipur Legislative Assembly, Assembly Complex,
P.O. & P.S. Imphal, Imphal West District, Manipur-795001.
3. Khundrakpam Gopal Singh, aged about 48 years old, S/O Kh.
Tompishak Singh of Kameng Khunjao, P.O. Lamlong& P.S. Lamlai,
Imphal East District, Manipur - 795010.
4. Soibam Ingotombi Singh, aged about 45 years old, S/O S. Bhubon
Singh of Tellou Maning Leikai, P.S. Lamlai & P.O. Lamlong, Imphal East
District, Manipur - 795010.
.....Respondents.
B E F O R E
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioner : Mr. HS. Paonam, Sr. Adv.& Mr. S.
Gunabanta Meitei, Adv.
For the respondents : Mr. Tushar Mehta, Solicitor General of
India, Mr. Lenin Hijam, Addl. A.G.,
Manipur, Mr. N. Ibotombi, Sr. Adv. and
Mr. S. Biswajit Singh, Adv.
Date of Hearing : 02.09.2020,04.09.2020,08.09.2020,
15.09.2020,02.11.2020,05.11.2020,
24.11.202,27.11.2020,04.12.2020,
10.12.2020& 14.12.2020.
Date of Order : 02.06.2021
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 2
JUDGMENT AND ORDER
(CAV)
(A. Bimol Singh, J)
[1] Heard Mr. HS. Paonam, learned Senior Advocate assisted by Mr. S.
Gunabanta Meitei, Advocate, appearing for the petitioner, Mr. Tushar
Mehta, learned Solicitor General of India assisted by Mr. Lenin Hijam,
learned Addl. Advocate General, Manipur for respondents No. 1 & 2, Mr.
N. Ibotombi, learned Senior Advocate assisted by Mr. A. Romel, Advocate
appearing for respondents and Mr. S. Biswajit, learned Advocate appearing
for the private respondents.
[2] The present 3(three) writ petitions have been filed challenging the
common order dated 18.06.2020 passed by the Speaker, Manipur
Legislative Assembly, in Disqualification Case No. 2 of 2019,
Disqualification Case No. 7 of 2019 and Disqualification Case No. 9 of
2019, disqualifying the writ petitioner for being a member of the Manipur
Legislative Assembly in terms of Para 2 (1) (a) of the Tenth Schedule of the
Constitution of India read with Article 191 (2) of the Constitution of India
w.e.f. 18.06.2020 till the expiry of the term of the 11th Legislative Assembly
of Manipur as well as the bulletin part-II No. 40 dated 18.06.2020 issued by
the Secretary, Manipur Legislative Assembly, notifying the vacancy of the
8-Lamlai Assembly Constituency consequent upon the disqualification of
the writ petitioner from the membership of Manipur Legislative Assembly
w.e.f. 18.06.2020.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 3
Since the facts and question of law involved in the present
3(three) writ petitions are common, we are disposing of the said 3(three)
writ petitions by this common judgment and order.
[3] The brief facts leading to the filing of the present 3(three) writ
petitions are that on 04.03.2017 and 08.03.2017, the Manipur Legislative
Assembly Election was held in which the writ petitioner contested the said
election as a candidate sponsored by the Indian National Congress (INC)
on the election symbol of the Indian National Congress (INC). The result of
the said election was declared on 11.03.2016 and the writ petitioner was
declared as an elected member of the 11th Manipur Legislative Assembly
as a Legislator of the Indian National Congress (INC). The result of the said
election was notified in the Manipur Gazette Extra Ordinary on 14.03.2017
and the name of the writ petitioner appeared at Sl. No. 8-Lamlai Assembly
Constituency in the list of elected member with party affiliation marked as
Indian National Congress (INC). Thereafter, on 19.03.2017, the petitioner
was sworn in as a member of the 11th Manipur Legislative Assembly by the
Pro-Tem Speaker as an elected member from the Indian National
Congress (INC).
[4] Subsequently, 3(three) disqualification cases, viz., Disqualification
Case No. 2 of 2019, Disqualification Case No. 7 of 2019 and
Disqualification Case No. 9 of 2019 were filed againstthe writ petitioner
before the Speaker, Manipur Legislative Assembly, Manipur, praying for
initiating disqualification proceedings against the writ petitioner and to pass
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 4
an appropriate order declaring that the writ petitioner stands disqualified
under Article 191 (2) of the Constitution of India and Para 2 (1) (a) of the
Tenth Schedule to the Constitution of India and further to declare the seat
of 8-Lamlai Assembly Constituency as vacant.
[5] The common grounds taken in the aforesaid 3(three) disqualification
cases are that on 15.07.2017, the writ petitioner along with another MLA of
the Indian National Congress (INC), viz., Shri PaonamBrojen voluntarily
gave up their membership of the Indian National Congress (INC) and gave
his support to the ruling party i.e., Bharatiya Janata Party (BJP) for the
purpose of strengthening the coalition Government led by the BJP. It is
also alleged that the writ petitioner along with the other aforesaid MLA of
INC were facilitated by performing a reception ceremony hosted on
15.07.2017 by the Hon'ble Chief Minister of Manipur, Shri N. Biren Singh
and that the said reception ceremony was covered and published in many
Local/National Newspapers and Electronic medias. It is further alleged that
the writ petitioner participated in various political works and programs
hosted by the BJP by wearing the apparel meant for the BJP and such
programs in which the writ petitioner participated were reported in the
public domain in various Local/National Newspapers and electronic medias
and that in view of such acts of the writ petitioner, it is beyond any doubt
that the writ petitioner had voluntarily gave up his membership of the I.N.C
and committed a Constitutional act of defection under Para 2(1) (a) of the
Tenth Schedule of the Constitution and as such the writ petitioner is liable
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 5
to be disqualified from being a member of the 11th Manipur Legislative
Assembly.
[6] The petitioner in disqualification case No. 7 of 2019 filed a petition
dated 07.02.2020 bringing on record a DVD, photographs and a letter
addressed to the Chief Minister of Manipur, wherein the writ petitioner is
also one of the signatory, demanding for a major/total reshuffle of Ministers
before 15.01.2020 to ensure the return of all the seating MLAs which are
marked as Annexure A/5 to A/7 in support of his contentions made in the
disqualification case.
Likewise, the petitioner in disqualification case No. 9 of 2019 also
filed an additional affidavit dated 07.02.2020 contending, inter-alia, that the
writ petitioner participated in various functions of the BJP including the
election rally held at Hatta Kangjeibung on 07.04.2019 along with Hon'ble
Prime Minister Narendra Modi, Chief Minister of Manipur and other Minister
of the BJP Government, which is against the interest of the INC and that
the writ petitioner is one of the signatory in the letter addressed to the Chief
Minister of Manipur, demanding for a major/total reshuffle of Ministers
before 15.01.2020 to ensure the return of all the seating MLAs. In the said
additional affidavit many documents, including the original copy of the news
paper "Poknapham" dated 16.07.2017, which are marked as Annexure A/4
to A/7 were annexed in support of the contentions made in the said
additional affidavit as well as in the disqualification petitions.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 6
[7] It will be pertinent to mention here that all-together 15(fifteen)
disqualification cases, viz., disqualification Case No. 1 to 15 of 2019 were
filed against 7(Seven) MLAs including the present writ petitioner. The writ
petitioner along with other 6(six) MLAs, who are the respondents in the
said disqualification cases, filed 15(fifteen) miscellaneous applications
raising preliminary objections to the maintainability of the aforesaid
15(fifteen) disqualification petitions. The said 15 (fifteen) miscellaneous
applications were clubbed together and the Speaker of the Manipur
Legislative Assembly considered and dismissed the said 15(fifteen)
miscellaneous applications by a common order dated 06.06.2020 passed
in disqualification cases No. 1 to 15 of 2019.
[8] After the dismissal of the aforesaid miscellaneous applications, the
writ petitioner filed a written-statement only in connection with
disqualification case No. 9 of 2019 on 12.06.2020. However, the writ
petitioner filed separate applications in connection with disqualification
cases No. 2 and 7 of 2019 praying for allowing the writ petitioner to rely on
the written-statement filed in disqualification case No. 9 of 2019 at the time
of hearing of disqualification cases No. 2 and 7 of 2019.
On receiving the written-statement filed by the present writ
petitioner, the petitioner in disqualification case No. 9 of 2019 also filed a
reply to the said written-statement, contending, inter-alia, that the writ
petitioner has not specifically denied the fact that he joined the BJP on
15.07.2017 and has also not specifically denied the newspaper report
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 7
annexed to the disqualification petitions about his joining the BJP in the
presence of the Chief Minister of Manipur and also about his participating
in a function organised by the BJP at Hatta Kangjeibung along with Hon'ble
Prime Minister Shri Narendra Modi and the Chief Minister of Manipur. It has
also been averred that the writ petitioner has only stated that newspaper
reports cannot be relied for the purpose of disqualification under paragraph
No. 2(1) (a) of the Tenth Schedule of the Constitution, but the writ petitioner
has never specifically denied, condemned and clarified till date in public
domain or before the Tribunal, the newspaper reports which have been
published on 16.07.2017. In support of such averments, xerox copy of
various news reports running to 11 pages were enclosed as Annexure No.
1 in the said reply affidavit.
[9] By an order dated 06.06.2020 passed by the Speaker, the 3(three)
disqualification cases filed against the writ petitioner were fixed on
17.06.2020 for further proceedings. However, on the direction of the
Speaker, the said disqualification cases were re-scheduled on 22.06.2020
on the ground that the Speaker was indisposed. Subsequently, on
17.06.2020, the said disqualification cases were again re-scheduled on
18.06.2020 as directed by the Speaker for early disposal of the cases in
view of the urgency of the matter and also in view of the improvement of
the Speaker's health conditions. Thereafter, on 18.06.2020, the said
3(three) disqualification cases, viz., disqualification cases No. 2, 7 and 9 of
2019 filed against the writ petitioner were proceeded ex-parte and the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 8
same were disposed of by a common order dated 18.06.2020 passed in
the aforesaid 3(three) disqualification cases thereby holding that the writ
petitioner had incurred disqualification for being a member of the Manipur
Legislative Assembly in terms of Para 2 (1) (a) of the Tenth Schedule of the
Constitution of India read with Article 191 (2) of the Constitution of India
and further holding that the writ petitioner ceased to be a members of the
Manipur Legislative Assembly w.e.f. 18.06.2020 till the expiry of the term of
11th Legislative Assembly of Manipur.
Pursuant to the order dated 18.06.2020 passed by the
Speaker in disqualification cases No. 2, 7 and 9 of 2019, the Secretary of
the Manipur Legislative Assembly issued bulletin Part-II bearing No. 40
dated 18.06.2020 published in the Manipur Gazette Extra Ordinary
notifying that the writ petitioner has been disqualified from the membership
of the Manipur Legislative Assembly on 18.06.2020 and that consequent
upon his disqualification, 8-Lamlai Assembly Constituency is lying vacant.
Having been aggrieved, the writ petitioner filed the present writ petitions
assailing the common order dated 18.06.2020 passed by the Speaker,
Manipur Legislative Assembly in disqualification cases No. 2, 7 and 9 of
2019 as well as the aforesaid bulletin No. 40 dated 18.06.2020.
[10] Mr. HS. Paonam, learned Senior Advocate, assisted by Mr. S.
Gunabanta Meitei, Advocate, appearing for the writ petitioner submitted
that the impugned order passed by the Speaker disqualifying the writ
petitioner is being challenged on the following grounds:
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 9
(i) that the Hon'ble Speaker passed the impugned order
dated 18.06.2020 in gross violation of the Principle of Natural
Justice;
(ii) that the conduct of the Speaker in passing the
impugned order dated 18.06.2020 has demonstrated
malafide;
(iii) that the Speaker has been motivated by perversity
while passing the impugned order and;
(iv) that the Hon'ble Speaker has violated the Constitutional
mandate.
[11] In connection with the first ground raised on behalf of the writ
petitioner regarding violation of Principle of Natural Justice by the Speaker
while passing the impugned disqualification order, it is submitted by the
learned senior counsel appearing for the writ petitioner that after disposal
of the miscellaneous application raising preliminary objections about the
maintainability of the disqualification petitions, the 3(three) disqualification
cases filed against the writ petitioner were fixed on 17.06.2020 for further
proceedings by an order dated 06.06.2020 passed by the Speaker.
Subsequently, on the direction of the Speaker, the said disqualification
cases were again rescheduled on 22.06.2020 on the ground that the
Speaker was indisposed. However, quite suddenly and in a hot haste
manner and in the wake of the Rajya Sabha Election which was scheduled
on 19.06.2020, the Speaker secretly prepone the hearing of the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 10
disqualification cases from 22.06.2020 to 18.06.2020 at midnight hours.
The learned senior counsel further submitted that a notice dated
17.06.2020 and cause-list dated 18.06.2020 were secretly published at the
midnight hours, however, the aforesaid notice dated 17.06.2020 and
cause-list dated 18.06.2020 were never served either to the writ petitioner
or to the counsel of the writ petitioner.
[12] The learned senior counsel submitted that generally, before taking
up the proceedings of the disqualification cases by the Speaker's Tribunal,
notice and cause-list in connection with the disqualification cases were
published and served to the counsel appearing for the parties via Special
Messengers of the Manipur Legislative Assembly, Secretariat and that
during the COVID-19 Pandemic also notice and cause-list were published
and served to the counsel of the parties giving opportunity to all concerned
in compliance with the Principle of Natural Justice. However, at the time of
final hearing of the said 3(three) disqualification cases and passing of the
impugned disqualification order, the notice dated 17.06.2020 preponing the
date of hearing of the disqualification cases from 22.06.2020 to 18.06.2020
and the cause-list dated 18.06.2020 were secretly published/issued at
midnight of 17.06.2020 and copy of the said notice and cause-list were
never served to the writ petitioner or his counsel.
[13] Countering the submission advanced on behalf of the respondents
No. 1 & 2 that notice and cause-list of the present disqualification cases
were served to the counsel of the writ petitioner through their Whatsapp, it
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 11
is vehemently submitted by the learned senior counsel that notice for other
proceedings taken up during COVID-19 Pandemic was duly served via
Special Messengers of the Manipur Legislative Assembly, Secretariat and
thus it is very clear that notice for preponing of the disqualification cases
has not been served either to the parties or their counsel deliberately to
take adverse action against the writ petitioner thereby, chance of fair trial
and justice has been conveniently overlook by the Speaker for the purpose
of his personal political ends.
[14] In support of his contentions, Mr. HS. Paonam, learned senior
Advocate, cited the following judgment:-
(i) "A.K. Kraipak and Others Vs. Union of India and
Others" reported in (1969) 2 SCC 262 wherein the Hon'ble Supreme
Court held in Para 20 as under:-
"20. The aim of the rules of natural justice is to
secure justice or to put it negatively to prevent miscarriage of
justice. These rules can operate only in areas not covered by
any law validly made. In other words they do not supplant the
law of the land but supplement it. The concept of natural
justice has undergone a great deal of change in recent years.
In the past it was thought that it included just two rules
namely : (1) no one shall be a judge in his own case (Nemo
debetesse judex prepria causa) and (2) no decision shall be
given against a party without affording him a reasonable
hearing (audi alteram partem). Very soon thereafter a third
rule was envisaged and that is that quasi-judicial enquiries
must be held in good faith, without bias and not arbitrarily or
unreasonably. But in the course of years many more
subsidiary rules came to be added to the rules of natural
justice. Till very recently it was the opinion of the courts that
unless the authority concerned was required by the law under
which it functioned to act judicially there was no room for the
application of the rules of natural justice. The validity of that
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 12
limitation is now questioned. If the purpose of the rules of
natural justice is to prevent miscarriage of justice one fails to
see why those rules should be made inapplicable to
administrative enquiries. Often times it is not easy to draw the
line that demarcates administrative enquiries from quasi-
judicial enquiries. Enquiries which were considered
administrative at one time are now being considered as
quasi-judicial in character. Arriving at a just decision is the
aim of both quasi-judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative enquiry may
have more far reaching effect than a decision in a quasi-
judicial enquiry. As observed by this Court in Suresh Koshy
George V. The University of Kerala and Others the rules of
natural justice are not embodied rules. What particular rule of
natural justice should apply to a given case must depend to a
great extend on the facts and circumstances of that case, the
framework of the law under which the enquiry is held and the
constitution of the Tribunal or body of persons appointed for
that purpose. Whenever a complaint is made before a court
that some principle of natural justice had been contravened
the court has to decide whether the observance of that rule
was necessary for a just decision on the facts of that case.
(ii) "BalchandraL.Jarkiholi&Others. Vs. B.S.
Yeddiyurappa and Others" reported in (2011) 7 SCC 1 wherein the
Hon'ble Supreme Court at Para 146-148 & 154-157 held as under:-
"146. Incidentally, a further incidence of partisan
behaviour on the part of the Speaker will be evident from the
fact that not only were the appellants not given an adequate
opportunity to deal with the contents of the affidavits affirmed
by Shri K.S. Eswarappa, Shri M.P. Renukacharya and Shri
Narasimha Nayak, but the time given to submit reply to the
show-cause notice on 10-10-2010, was preponed from 5.00
p.m. to 3.00 p.m., making it even more difficult for the
appellants to respond to the show-cause notices in a
meaningful manner. The explanation given by the Speaker
that the appellants had filed detailed replies to the show-
cause notices does not stand up to the test of fairness when
one takes into consideration the fact that various allegations
had been made in the three affidavits filed by Shri K.S.
Eswarappa, Shri M.P. Renukacharya and Shri Narasimha
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 13
Nayak, which could only be answered by the appellants
themselves and not by their learned advocates.
"147. The procedure adopted by the Speaker seems
to indicate that he was trying to meet the time schedule set by
the Governor for the trial of strength in the Assembly and to
ensure that the appellants and the other independent MLAs
stood disqualified prior to the date on which the Floor Test
was to be held. Having concluded the hearing on 10-10-2010
by 5.00 p.m., the Speaker passed a detailed order in which
various judgments, both of Indian courts and foreign courts,
and principles of law from various authorities were referred to,
on the same say, holding that the appellants had voluntarily
given up their membership of the Bharatiya Janata Party by
their acts and conduct which attracted the provisions of Para
2(1)(a) of the Tenth Schedule to the Constitution, whereunder
they stood disqualified. The vote of confidence took place on
11-10-2010, in which the disqualified members could not
participate and, in their absence Shri B.S. Yeddyurappa was
able to prove his majority in the House."
"148. Unless it was to ensure that the trust vote did
not go against the Chief Minister, there was no conceivable
reason for the Speaker to have taken up the disqualification
application in such a great hurry. Although, in
Dr.Mahachandra Prasad Singh case and in Ravi S. Naik
case, this Court had held that the Disqualification Rules were
only directory and not mandatory and that violation thereof
amounted to only procedural irregularities and not violation of
a constitutional mandate, it was also observed in Ravi S. Naik
case that such an irregularity should not be such so as to
prejudice any authority who is affected adversely by such
breach. In the instant case, it was a matter of survival as far
as the appellants were concerned. In such circumstances,
they deserved a better opportunity of meeting the allegations
made against them, particularly when except for the
newspaper cuttings said to have been filed by Shri
Yeddyurappa along with the disqualification application, there
was no other evidence at all available against the appellants.
"154. Having considered all the different aspects of
the matter and having examined the various questions which
have been raised, we are constrained to hold that the
proceedings conducted by the Speaker on the disqualification
application filed by Shri B.S. Yeddyurappa do not meet the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 14
twin tests of natural justice and fair play. The Speaker, in our
view, proceeded in the matter as if he was required to meet
the deadline set by the Governor, irrespective of whether, in
the process, he was ignoring the constitutional norms set out
in the Tenth Schedule to the Constitution and the
Disqualification Rules, 1986, and in contravention of the basic
principles that go hand in hand with the concept of a fair
hearing."
"155. As we have earlier indicated, even if the
Disqualification Rules were only directory in nature, even then
sufficient opportunity should have been given to the
appellants to meet the allegations levelled against them. The
fact that the show-cause notices were issued within the time
fixed by the Governor for holding the trust vote, may explain
service of the show-case notices by affixation at the official
residence of the appellant, though without the documents
submitted by Shri Yeddyurappa along with his application, but
it is hard to explain as to how the affidavits, affirmed by Shri
K.S. Eswarappa, Shri M.P. Renukacharya and Shri
Narasimha Nayak, were served on the learned advocates
appearing for the appellants only on the date of hearing and
that too just before the hearing was to commence.
Extraneous considerations are writ large on the face of the
order of the Speaker and the same has to be set aside.
"156. Incidentally, in Para 5 of the Tenth Schedule,
which was introduced into the constitution by the Fifty-second
Amendment act, 1985, to deal with the immorality of defection
and floor-crossing during the tenure of a legislator, it has
been indicated that notwithstanding anything contained in the
said Schedule, a person who has been elected to the office of
the Speaker or the Deputy Speaker of the House of the
People or the Deputy Chairman of the Council of States or
the Chairman or the Deputy Chairman of the Legislative
Council of the State or the Speaker or the Deputy Speaker of
the Legislative Assembly of a State, shall not be disqualified
under the Schedule if he by reason of his election to such
office, voluntarily gives up the membership of the political
party to which he belonged immediately before such election,
and does not, so long as he continues to hold such office
thereafter, rejoin that political party or become a member of
another political party. The object behind the said Para is to
ensure that the Speaker, while holding office, acts absolutely
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 15
impartially, without any leaning towards any party, including
the party from which he was elected to the House."
"157. The appeals are, therefore, allowed. The order
of the Speaker dated 10-10-2010, disqualifying the appellants
from the membership of the House under Para 2(1)(a) of the
Tenth Schedule to the Constitution is set aside along with the
majority judgment delivered in Writ Petitions (Civil) Nos.
32660-70 of 2010, and the portions of the judgment delivered
by N. Kumar, J. concurring with the views expresed by the
Hon‟ble the Chief Justice, upholding the decision of the
Speaker on Disqualification Application No. 1 of 2010 filed by
Shri B.S. Yeddyurappa. Consequently, the disqualification
application filed by Shri B.S. Yeddyurappa is dismissed.
(iii) "Daffoddils Pharmaceuticals Ltd. and Anr. Vs. State
of U.P. and Another" reported in (2019) SCC Online SC 1607 wherein
the Apex Court at Para 17 held as under:-
"17. In the present case, even if one assumes that
Surrender Chaudhary, the accused in the pending criminal
case was involved and had sought to indulge in objectionable
activities, that ipso facto could not have resulted in unilateral
action of the kind which the State resorted to-against
Daffodils, which was never granted any opportunity of hearing
or a chance to represent against the impugned order. If there
is one constant lodestar that lights the judicial horizon in this
country, it is this: that no one can be inflicted with an adverse
order, without being afforded a minimum opportunity of
hearing, and prior intimation of such a move. This principle is
too well entrenched in the legal ethos of this country to be
ignored, as the state did, in this case."
[15] Relying on the aforesaid three judgment rendered by the Hon'ble
Supreme Court, it has been submitted by the learned senior counsel
appearing for the writ petitioner that non-serving of the notice for preponing
the hearing of the disqualification cases from 22.06.2020 to 18.06.2020
with failure to provide reasons for such preponing as well as hearing of the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 16
disqualification cases in a hot haste manner is violative of the Principle of
Natural Justice and accordingly, the impugned disqualification orders is
liable to be quashed and set aside.
[16] In connection with the second grounds of malafide in the conduct of
the Speaker while passing the impugned disqualification order, it has been
submitted by Mr. HS. Paonam, learned senior Advocate that malafide
conduct would mean an action with an intention to deceive a person and
that the conduct of the Speaker in passing the impugned order
disqualifying the writ petitioner is smacked with an element of malafide for
the reason that -
(a) the Speaker relied on the Poknapham dailies dated
16.07.2017 filed in disqualification case No. 9 of 2019 for
disqualifying the writ petitioner, however, Shri P. Brojen Singh was
not disqualified for want of authenticity of the newspaper;
(b) the hot haste manner in which the disqualification
proceedings were taken up in the following manner-
(i) the notice for preponing the disqualification
cases was secretly published in the midnight of
17.06.2020 for taking up the matter on 18.06.2020;
(ii) the notice was not served to the writ petitioner as
well as his counsel;
(iii) no reason for preponing the disqualification
cases have been given;
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 17
(iv) the matter was taken up without the counsel for
the parties and order was reserved without oral hearing
of the parties.
(v) the order disqualifying the writ petitioner was
announced on the same day of final hearing of the
disqualification cases, just a day before the Rajya
Sabha Election, even without notifying about the
delivery of the said order as was done in all its earlier
proceedings.
(c) the Speaker, despite the order dated 18.06.2020
passed in WP(C) No. 298 of 2020 for keeping in abeyance the
announcement of the judgment in the disqualification cases, with an
intention to deceive passed the impugned order disqualifying the writ
petitioner;
(d) The Speaker in collusion with the state machinery
withdraw escort/security of the writ petitioner before the order of
disqualification was served to the writ petitioner indicating the height
of malafide conduct of the Speaker despite the interim order dated
18.06.2020 passed by this Court in WP(C) No. 289 of 2020 for
keeping in abeyance the announcement of the judgment in the
disqualification cases.The Speaker, with an intention to defeat the
said interim order, passed the impugned order disqualifying the writ
petitioner.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 18
[17] In support of his contentions, the learned senior counsel appearing
for the writ petitioner relied on the following judgment of the Hon'ble
Supreme Court rendered in the following cases:-
(i) "BahadursinhLakhubhaiGohilVs. Jagdishbhai M.
Kamalia and Others" reported in (2004) 2 SCC 65wherein the Hon'ble
Supreme Court at Para 25 held as under:-
"25. In S.P. Kapoor (Dr) v. State of H.P. this Court
held that when a thing is done in apost-haste manner, mala
fide would be presumed, stating: (SCC p. 739, para 33).
"33. ... The post-haste manner in which these
things have been done on 3-11-1979 suggests that
some higher-up was interested in pushing through the
matter hastily when the Regular Secretary, Health and
Family Welfare was on leave."
(ii) "Balchandra L. Jarkiholi& Others. Vs. B.S.
Yeddiyurappa and Others" reported in (2011) 7 SCC 1 Para 146-148 &
154-157 (Supra).
(iii) "D. Sudhakar (2) and Others. Vs. D.N. Jeevaraju and
Others" reported in (2012) 2 SCC 708 wherein the Hon'ble Supreme
Court in "Para 66 to 78 held as under:
"66. There is no denying the fact that the show-cause
notices issued to the appellants were not in conformity with
the provisions of Rules 6 and 7 of the Karnataka Legislative
Assembly (Disqualification of Members on Ground of
Defection) Rules, 1986, inasmuch as, the appellants were not
given 7 days‟ time to reply to the show-cause notices as
contemplated under Rule 7(3) of the aforesaid Rules. Without
replying to the said objection raised, the Speaker avoided the
issue by stating that it was sufficient for attracting the
provisions of Para 2(2) of the Tenth Schedule to the
Constitution that the appellants herein had admitted that they
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 19
had withdrawn support to the Government led by Shri B.S.
Yeddyurapa. The Speaker further recorded that the appellants
had been represented by the counsel who had justified the
withdrawal of support to the Government led by Shri
Yeddyurappa. Without giving further details, the Speaker
observed that the Disqualification Rules had been held by this
Court to be directory and not mandatory, as they were to be
followed for the sake of convenience. The provisions of Rule
7(3) of the Disqualification Rules were held by the High Court
to be directory in nature and that deviation from the said Rules
could not and did not vitiate that procedure contemplated
under the Rules, unless the violation of the procedure is
shown to have resulted in prejudice to the appellants.
"67. The Speaker wrongly relied upon the affidavit
filed by Shri K.S. Eswarappa, State President of BJP,
although there was nothing on record to support the
allegations which had been made therein. In fact, the said
affidavit had not been served on the appellants. Since Shri
K.S. Eswarappa was not a party to the proceedings, the
Speaker should have caused service of copies of the same on
the appellants to meet the allegations made therein. Coupled
with the fact that the Speaker had violated the provisions of
Rule 7(3) of the Disqualification Rules in giving the appellants
less than 7 days‟ time to reply to the show-cause notices
issued to them, failure of the Speaker to cause service of
copies of the affidavit affirmed by Shri K.S. Eswarappa
amounted to denial of natural justice to the appellants,
besides revealing a partisan attitude in the Speaker‟s
approach in disposing of the disqualification application filed
by Shri B.S. Yeddyurappa. If the Speaker had wanted to rely
on the statements made in the aforesaid affidavit, he should
have given the appellants an opportunity of questioning the
deponent as to the truth of the statements made in his
affidavit. This conduct on the part of the Speaker also
indicates the hot haste with which the Speaker disposed of
the disqualification application, raising doubts as to the bona
fides of the action taken by him.
"68. The explanation given by the Speaker as to why
the notices to show cause had been issued to the appellants
under Rule 7 of the Disqualification Rules, giving the
appellants only 3 days‟ time to respond to the same, is not
very convincing. There was no compulsion on the Speaker to
decide the disqualification applications in such a great hurry,
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 20
within the time specified by the Governor for the holding of a
vote of confidence in the Government headed by Shri B.S.
Yeddyurappa. It would appear that such a course of action
was adopted by the Speaker on 10-10-2010, since the vote of
confidence on the floor of the House was to be held on 12-10-
2010.
"69. We have no hesitation to hold that the Speaker‟s
order was in violation of Rules 6 and 7 of the Disqualification
Rules and the rules of natural justice and that such violation
resulted in prejudice to the appellants. Therefore, we hold that
even if Rules 6 and 7 are only directory and not mandatory,
the violation of Rules 6 and 7 resulting in violation of the rules
of natural justice has vitiated the order of the Speaker and it is
liable to be set aside.
"70. We are next faced with the question as the
manner in which the disqualification applications were
proceeded with and disposed of by the Speaker.
"71. On 6-10-2010, on receipt of identical letters from
the appellants withdrawing support to the BJP Government
led by Shri B.S. Yeddyurappa, the Governor on the very same
day wrote a letter to the Chief Minister informing him of the
developments regarding the withdrawal of support of the 5
Independent MLAs and 13 BJP MLAs and requesting him to
prove his majority on the floor of the House on or before 12-
10-2010 by 5.00 p.m. The Speaker was also requested to
take steps accordingly. On the very same day, Shri B.S.
Yeddyurappa, as the leader of the BJP in the Legislative
Assembly, filed an application before the Speaker under
Rules 6 of the Disqualification Rules, 1986, for a declaration
that all the 13 MLAs elected on BJP tickets along with two
other Independent MLAs, had incurred disqualification under
the Tenth Schedule to the Constitution.
"72. Immediately thereafter, on 7-10-2010, the
Speaker issued show-cause notices to the MLAs concerned
informing them of the disqualification application filed by Shri
B.S. Yeddyurappa and also informing them that by
withdrawing support to the Government led by Shri B.S.
Yeddturappa they were disqualified from continuing as
Members of the House in view of Para 2(1)(a) of the Tenth
Schedule to the Constitution. On 7-10-2010 itself, petitions
were filed against the appellants by the respondents and the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 21
Speaker on 8-10-2010 issued show-cause notices to the
appellants. The appellants and the BJP MLAs to whom show-
cause notices were issued were given time till 5.00 p.m. on
10-10-2010 to submit their objection, if any, to the said
application.
"73. Apart from the fact that the appellants were not
given 7 days‟ time to file their reply to the show-cause notices,
the High Court did not give serious consideration to the fact
that even service of the show-cause notices on the appellants
and the 13 MLAs belonging to the Bharatiya Janata Party had
not been properly effected. Furthermore, the MLAs who were
sought to be disqualified were also not served with copies of
the affidavit filed by Shri K.S. Eswarappa, although the
Speaker relied heavily on the contents thereof in arriving at
the conclusion that they stood disqualified under Paras
2(1)(a)/2(2) of the Tenth Schedule to the Constitution. The
MLAs were not supplied with copies of the affidavits filed by
Shri. M.P. Renukacharya and Shri Narasimha Nayak,
whereby they had retracted the statements which they had
made in their letters submitted to the Governors on 6-10-
2010.
"74. What is even more glaring is the fact that the
Speaker not only relied upon the contents of the said
affidavits, but also dismissed the disqualification application
against them on the basis of such retraction, after having held
in the case of 13 MLAs belonging to the Bharatiya Janata
Party that they had violated the provisions of Para 2(1)(a) of
the Tenth Schedule to the Constitution immediately upon their
intention to withdraw their support to the Government led by
Shri B.S. Yeddyurappa was communicated to the Governor.
"75. It is obvious from the procedure adopted by the
Speaker that he was trying to meet the time schedule set by
the Governor for the trial of strength in the Assembly and to
ensure that the appellants and the 13 BJP MLAs stood
disqualified prior to the date on which the floor test was to be
held. Having concluded the hearing on 10-10-2010 by 5.00
p.m, the Speaker passed detailed orders, in which various
judgment, both of Indian courts and foreign courts, and
principle of law from various authorities were referred to, on
the same day, holding that the appellants and the other MLAs
stood disqualified as Members of the House. The vote of
confidence took place on 11-10-2010, in which the disqualified
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 22
Members could not participate, and in their absence Shri B.S.
Yeddyurappa was able to prove his majority in the House.
"76. Unless it was to ensure that the trust vote did not
go against the Chief Minister, there was hardly any reason for
the Speaker to have taken up the disqualification applications
in such a great haste.
"77. We cannot lose sight of the fact that although the
same allegations as had been made by Shri Yeddyurappa
against the disqualified BJP MLAs, were made also against
Shri M.P. Renukacharya and Shri Narasimha Nayak, whose
retraction was accepted by the Speaker, despite the view
expressed by him that upon submitting the letter withdrawing
support to the BJP Government led by Shri B.S.
Yeddyurappa, all the MLAs stood immediately disqualified
under Para 2(1)(a) of the Tenth Schedule to the Constitution,
the said two legislators were not disqualified and they were
allowed to participate in the confidence vote, for reasons
which are obvious.
"78. Therefore, we hold that the impugned order of
the Speaker is vitiated by mala fides."
(iv) "Taranjeet Singh Mohon Singh Sawhney and Others
Vs. District Deputy Registrar, Cooperative Societies and Others"
reported in (2013) 10 SCC 402wherein the Hon'ble Supreme Court in
"Para 12 & 15" held as under:
"12. Shri Mukul Rohatgi, learned Senior Counsel for
the appellants argued that the order passed by Respondent 1
is liable to be declared as nullity because he arbitrarily
preponed the date of hearing and decided the application of
Respondent No. 3 without bothering to find out whether the
notice issued to the parties about the charged date had been
delivered/served. Shri Rohatgi referred to the English
translation of the order-sheets recorded by Respondent 1,
xerox copies of communications dated 15-2-2013 sent by the
senior Superintendent of Post Offices, Mumbai City (North) to
Ms. Pritha Dave, counsel for Respondent 3 and the counter
filed on behalf of Respondent 1 before the High Court to show
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 23
that the notice issued in terms of the direction given by
Respondent 1 on 16-5-2012 was not served upon the
appellants. The learned Senior Counsel then argued that due
to non-service of notice, the appellants could not appear on
21-5-2012 and on that account their cause has been seriously
prejudiced. Shri Rohatgi then submitted that the absence of
the counsel/representatives of all the parties except
Respondent 3 on 21-5-2012 should have alerted Respondent
1 that there was something wrong with the service of notice
and prompted him to make an enquiry to ascertain whether
the notice had been served on all the parties, but the officer
concerned deliberately did not take any action in this regard
and proceeded to close the matter for orders. Shri Rohatgi
argued that the explanation given by Respondent 1 for
preponing the date of hearing i.e. fixation of excess number of
cases on the particular date i.e. 19-6-2012 should not be
accepted because even on 15-5-2012, the officer concerned
must have been aware of the fact that he had already fixed
large number of cases on 19-6-2012.
"15. By producing xerox copies of the receipt of
speed post and two communications dated 15-2-2013 sent by
the Senior Superintendent of Post Offices, Mumbai City
(North) to Ms Pritha Dave, Respondent 3 has made an
attempt to show that the appellants had been informed about
the changed date of hearing, but we have not felt convinced.
In the first place, the justification offered for preponement of
the date of hearing is too weak to be accepted. It is neither the
pleaded case of Respondent 1 and 3 nor has it been argued
before us that the application filed by Respondent 3 was the
only one dealt with by the officer concerned. Rather, the
assertion contained in the counter filed by Respondent 1
before the High Court shows that a large number of similar
cases were handled by the officer. Therefore, it can be
presumed that he was aware of the imperative to decide the
application within six months. Notwithstanding this,
Respondent 1 fixed a large number of cases on 19-6-2012.
Why he did so has not been explained. Why he singled out
the application of Respondent 3 for preponing the date of
hearing has also not been explained. Therefore, it is
reasonable to infer that the action of Respondent 1 to prepone
the date of hearing of the application was founded on
extraneous reasons and was totally unwarranted and
unjustified."
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 24
[18] In connection with the third ground regarding the Speaker being
motivated by perversity while passing the impugned disqualification order,
it has been submitted by the learned senior counsel appearing for the
petitioner that perversity is the act of deliberate behaviour of unacceptable
and unreasonable action. It has been also submitted that the Speaker with
a sense of complete lawlessness having a height of surprise have taken a
contradictory, different and partisan stand while taking up the
disqualification cases on 18.06.2020 and he had disqualified 3(three) MLAs
including the present writ petitioner while rejecting the disqualification
cases filed against 4(four) other MLAs, even though all the 7(seven) MLAs
were facing disqualification cases on the same issue, same facts and
similar pleadings. It is vehemently submitted by the learned senior counsel
that it is impermissible to pass two different sets of order on the same facts,
issues and pleadings and hence, such act on the part of the Speaker is
unreasonable and unfair and thus the same is hit by element of perversity.
Mr. HS. Paonam, learned senior Advocate further submitted that the
benefit of rejection of disqualification cases in the case of the other 4(four)
MLAs must also be extended to the present writ petitioner to uphold the
doctrine of beneficial judgment/construction of law and for avoiding any
perversity or inconsistency.
[19] In connection with the last ground raised by the writ petitioner
regarding violation of Constitutional mandates, it has also been submitted
by the learned senior counsel appearing for the writ petitioner that while
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 25
passing the impugned order dated 18.06.2020 disqualifying the writ
petitioner, the Speaker has violated the Constitutional mandate for the
following reasons:-
(i) order dated 18.06.2020 passed by this Court in WP(C)
No. 298 of 2020 for keeping in abeyance the announcement of
the order reserved in the disqualification cases had been
conveniently ignored by the Speaker, which is a violation of the
Constitutional mandate;
(ii) the stand of the Speaker made before this Court and as
recorded in the order dated 15.06.2020 passed in WP(C) 220 of
2020 about his inability to provide a specific time for disposal of
the disqualification cases on the ground that evidence may be
required to be adduced, had been ignored by the Speaker, which
is violation of the Constitutional mandates.
(iii) by depriving the chance of participating in the hearing
and also by relying on the original newspaper and DVD, the
Speaker passed the impugned order dated 18.06.2020
disqualifying the writ petitioner for meeting personal political
ends, which is nothing but a deliberate attempt to violate the
Constitutional mandates and fairness. The learned senior
counsel further submitted that the manner in which a DVD can be
relied on as a piece of evidence has been laid down by the
Hon'ble Supreme Court in the case of "Anvar P.V. Vs. P.K.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 26
Basheer andOthers"reported in (2014) 10 SCC 473 "Para 7,
14 & 15".
"7. Electronic record produced for the inspection of
the court is documentary evidence under Section 3 of the
evidence Act, 1872 (hereinafter referred to as "the Evidence
Act"). The Evidence Act underwent a major amendment by
Act 21 of 2000 [the Information Technology Act, 2000
(hereinafter referred to as "the IT Act")]. Corresponding
amendments were also introduced in the Penal code (45 of
1860), the Bankers Books Evidence Act, 1891, etc.
"14. Any documentary evidence by way of an
electronic record under the Evidence Act, in view of Section
59 and 65-A, can be proved only in accordance with the
procedure prescribed under Section 65-B. Section 65-B deals
with the admissibility of the electronic record. The purpose of
these provisions is to sanctify secondary evidence in
electronic form, generated by a computer. It may be noted
that the section starts with a non obstante clause. Thus,
notwithstanding anything contained in the Evidence Act, any
information contained in an electronic record which is printed
on a paper, stored, recorded or copied in optical or magnetic
media produced by a computer shall be deemed to be a
document only if the conditions mentioned under sub-section
(2) are satisfied, without further proof or production of the
original. The very admissibility of such a document i.e.
electronic record which is called as computer output, depends
on the satisfaction of the four conditions under Section 65-
B(2). Following are the specified conditions under Section 65-
B(2) of the Evidence Act:
(i) the electronic record containing the
information should have been produced by the
computer during the period over which the same was
regularly used to store or process information for the
purpose of any activity regularly carried on over that
period by the person having lawful control over the use
of that computer;
(ii) The information of the kind contained in
electronic record or of the kind from which the
information is derived was regularly fed into the
computer in the ordinary course of the said activity;
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 27
(iii) During the material part of the said period,
the computer was operating properly and that even if it
was not operating properly for some time, the break or
breaks had not affected either the record or the
accuracy of its contents; and
(iv) The information contained in the record
should be a reproduction or derivation from the
information fed into the computer in the ordinary course
of the said activity.
"15. Under Section 65-B(4) of the Evidence Act, if it is
desired to give a statement in any proceedings pertaining to
an electronic record, it is permissible provided the following
conditions are satisfied:
(a) There must be a certificate which identifies
the electronic record containing the statement;
(b) The certificate must describe the manner
in which the electronic record was produced;
(c) The certificate must furnish the particulars
of the device involved in the production of that record;
(d) The certificate must deal with the
applicable conditions mentioned under Section 65-B(2)
of the Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in relation to
the operation of the relevant device".
(iv) Mr. HS. Paonam, learned senior counsel also submitted
that in the case of "Quamarum Islam Vs. SK Kanta and
Others" reported in 1994 Supple (3) SCC 5 (Para 48 & 49),
"Laxmiraj Shetty Vs. State of Tamil Nadu" reported in (1988)
3 SCC 319 (Para 25 and 26) and "All India Anna
DravidaMuneetraKazhagam Vs. L.K. Tripathi" reported in
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 28
(2009) 5 SCC 417 (Para 73 to 75), the Hon'ble Supreme Court
has categorically laid down the law for relying on newspaper
reports wherein the same is held to be required to be proved in
terms of Evidence Act.
In the present case, the Speaker has passed the
impugned order disqualifying the writ petitioner by relying on the
newspaper reports in complete violation of the law laid down by
the Hon'ble Supreme Court in the aforesaid cases. Such act of
the Speaker amounts to violation of the Constitutional mandates.
Learned senior counsel lastly submitted that in view of
the 4(four) grounds submitted hereinabove, the impugned order dated
18.06.2020 as well as the impugned bulletin part-II No. 40 dated
18.06.2020 is liable to be quashed and set aside for the ends of justice.
[20] Mr. Tushar Mehta, learned Solicitor General of India assisted by Mr.
Lenin Hijam, learned Addl. AG, Manipur, appearing for respondents No. 1
& 2 draw the attention of this Court to the following provisions of the
Constitution of India:-
"Article 191-Disqualifications for membership:-
"(1) ...........................................
"(2)A person shall be disqualified for being a member of
the Legislative Assembly or Legislative Council of a State if he
is so disqualified under the Tenth Schedule."
"TENTH SCHEDULE"
" 1. Interpretation.- ........................................
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 29
"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 authorised 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.
"(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."
"6. Decision on questions as to disqualification on
ground of defection.-
"(1) If any question arises as to whether a member of
a House has become subject to disqualification under this
Schedule, the question shall be referred for the decision of the
Chairman or, as the case may be, the Speaker of such House
and his decision shall be final;
Provided that where the question which has arisen is as
to whether the Chairman or the Speaker of a House has
become subject to such disqualification, the question shall be
referred for the decision of such member of the House as the
House may elect in this behalf and his decision shall be final.
"(2) All proceedings under sub-paragraph (1) of this
paragraph in relation to any question as to disqualification of a
member of a House under this Schedule shall be deemed to
be proceedings in Parliament within the meaning of article 122
or, as the case may be, proceedings in the Legislature of a
State within the meaning of article 212."
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 30
"Article 212. Courts not to inquire into proceedings of the
Legislature.-
"(1) The validity of any proceedings in the Legislature
of a State shall not be called in question on the ground of any
alleged irregularity of procedure;
"(2) No officer or member of the Legislature of a
State in whom powers are vested by or under this Constitution
for regulating procedure or the conduct of business, or for
maintaining order, in the Legislature shall be subject to the
jurisdiction of any court in respect of the exercise by him of
those powers".
[21] Mr. Tushar Mehta, learned Senior counsel contended that the
Constitutional provisions under Para. 6(2) of the Tenth Schedule read with
Article 212(1) of the Constitution of India mandated that the validity of any
proceedings in the Legislature of a State shall not be called in question on
the ground of any alleged irregularity of procedure.
By relying on the Judgments of the Hon'ble Supreme Court
and Punjab and Haryana High Court reported in AIR 1960 SC 1186 and
1997 SCC Online P & H 787 respectively, it has been submitted by the
learned Senior counsel for the respondents No. 1 & 2 that the validity of the
proceedings inside the Legislature of a State cannot be called in question
on the allegation that the procedure laid down by the law had not been
strictly followed. It has further been averred by the learned Senior counsel
that procedural laws like Code of Civil Procedure and the Evidence Act are
not applicable to the proceedings before the Speaker as the Speaker is not
acting as a Court and that the proceedings before the Speaker cannot be
described as judicial proceedings though the power to decide the disputed
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 31
disqualification is pre-eminently of a judicial complexion. It is, therefore,
submitted by the learned Senior counsel that in the absence of rules
framed under Para. 8 of the Tenth Schedule, it is open to the Speaker to
adopt such procedure as he deems fit, proper, expedient and just in the
circumstance of any particular case.
[22] It has been submitted that in the present case, the writ petitioner was
elected as a member of the 11th Manipur Legislative Assembly in the
election held in the month of March, 2017 as a candidate set up by the
Indian National Congress (INC). Subsequently, three disqualification cases
were filed against the present writ petitioner contending, inter-alia, that on
15.07.2017, the present writ petitioner along with another MLA of the Indian
National Congress voluntarily gave up their membership from the political
party of Indian National Congress(INC) and join the ruling party of
Bharatiya Janata Party (BJP) for the purpose of strengthening the coalition
government led by the BJP and that the writ petitioner along with another
MLA of the INC were facilitated by performing a reception ceremony hosted
by the Hon'ble Chief Minister of Manipur, Shri N. Biren Singh. The said
reception ceremony was covered by many printed and electronic media
and the event was published/reported in the public domain in many
newspapers and electronic medias. In the said reports published in many
newspapers and electronic medias, it was elaborately mentioned that the
present writ petitioner and another MLA of the INC voluntarily gave up the
membership of their original political party and joined the BJP and the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 32
photographs and videos of the said reception ceremony were also
published. Such newspapers and media reports published in the public
domain clearly show the present writ petitioner wearing the apparel meant
for BJP and being facilitated by the BJP leaders.
[23] The learned senior counsel appearing for the respondents No. 1 and
2 further submitted that the writ petitioner also participated in many political
works and programs organised by the BJP as a member of the BJP along
with other members of the BJP in his local areas by identifying himself as a
member of the BJP. Photographs of such events have been filed in the
disqualification cases. It is accordingly submitted by the learned senior
counsel that such action and intention of the present writ petitioner clearly
shows that he himself had voluntarily gave up the membership of the
original political party of the INC and join to the political party of BJP and
accordingly, it is beyond any doubt that the writ petitioner had committed a
Constitutional act of defection under Para 2(1)(a) of the Tenth Schedule to
the Constitution of India and as such, the writ petitioner is liable to be
disqualified for being a member of the 11thManipur Legislative Assembly.
[24] It is also submitted by the learned senior counsel appearing for the
respondents No. 1 and 2 that in the written statement filed by the writ
petitioner in connection with the aforesaid three disqualification cases as
well as in the pleadings of the present writ petition, the writ petitioner never
specifically deny the allegation that he along with another INC MLAs were
facilitated by performing a reception ceremony on 15.07.2017 for the act of
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 33
their voluntarily giving up their membership of the INC and joining the BJP
and also the factum of publication of such events in many printed and
electronic media. The writ petitioner had merely made a general denial by
stating that newspaper reports cannot be relied as it is not trustworthy and
that the newspaper and media report cannot be the basis to initiate
disqualification proceedings against him. It has been, accordingly,
submitted that in the absence of any specific denial to the allegations made
against the writ petitioner in the disqualification petitions, the Speaker was
absolutely right in disqualifying the present writ petitioner as there were
adequate materials before the Speaker to infer that the writ petitioner had
voluntarily given up his membership of the INC.
[25] The learned senior counsel appearing for the respondents No. 1 and
2 relied on the judgment rendered by the Hon'ble Supreme Court in the
following cases:-
(1) "Ravi S. Naik Vs. Union of India and Others" reported
in 1994 Supp. (2) SCC 641 (Para 24 & 25):-
"24. It is no doubt true that under Rule 7(30)(b) of the
Disqualification Rules, it has been provided that the members
concerned can forward their comments in writing on the
petitions within seven days of the receipt of the copies of the
petition and the annexures thereto and in the instant case the
appellants were given only two days‟ time for submitting their
replies. The appellants, however, did submit their replies to
the petitions within the said period and the said replies were
quite detailed. Having regard to the fact that there was no
denial by the appellants of the allegation in paragraph 11 of
the petitions about their having met the Governor on
December 10, 1990 in the company of Dr. Barbosa and Dr.
Wilfred D‟Souza and other Congress (I) MLAs and the only
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 34
dispute was whether from the said conduct of the appellants
an inference could be drawn that the appellants had
voluntarily given up their leadership (six membership) of the
MGP, it cannot be said that the insufficient time given for
submitting the reply has resulted in denial of adequate
opportunity to the appellants to controvert the allegations
contained in the petitions seeking disqualification of the
appellants.
"25. As regards the reference to the newspapers in
the impugned order passed by the Speaker it appears that the
Speaker, in his order, has only referred to the photographs as
printed in the newspapers showing the appellants with
Congress (I) MLAs and Dr. Barbosa, etc. when they had met
the Governor with Dr. Wilfred D‟Souza who had taken them to
show that he had the support of 20 MLAs. The High Court has
rightly pointed out that the Speaker, in referring to the
photographs was drawing an inference about a fact which had
not been denied by the appellants themselves, viz., that they
had met Governor along with Dr. Wilfred D‟Souza and Dr.
Barbosa on December 10, 1990 in the company of Congress
(I) MLAs, etc. The talk between the Speaker and the Governor
also refers to the same fact. In view of the absence of a denial
by the appellants of the averment that they had met the
Governor on December 10, 1990 accompanied by Dr.
Barbosa and Dr. Wilfred D‟Souza and Congress MLAs the
controversy was confined to the question whether from the
said conduct of the appellants an inference could be drawn
that they had voluntarily given up the membership of the
MGP. The reference to the newspaper reports and to the talk
which Speaker had with the Governor, in the impugned order
of disqualification does not, in these circumstances, introduce
an infirmity which would vitiate the said order as being passed
in violation of the principles of natural justice.
(2) "Jagjit Singh Vs. State of Haryana and
Others" reported in (2006) 11 SCC 1 (Para 14) :-
"14. At the outset, we may mention that while
considering the plea of violation of principles of natural justice,
it is necessary to bear in mind that the proceedings under the
Tenth Schedule are not comparable to either a trial in a court
of law or departmental proceedings for disciplinary action
against an employee. But the proceedings here are against an
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 35
elected representative of the people and the judge holds the
independent high office of a Speaker. The scope of judicial
review in respect of proceedings before such Tribunal is
limited. We may hasten to add that howsoever limited may be
the field of judicial review, the principles of natural justice have
to be complied with and in their absence, the orders would
stand vitiated. The yardstick to judge the grievance that
reasonable opportunity has not been afforded would, however,
be different. Further, if the view taken by the Tribunal is a
reasonable one, the Court would decline to strike down an
order on the ground that another view is more reasonable. The
Tribunal can draw an inference from the conduct of a Member,
of course, depending upon the facts of the case and totality of
the circumstances."
[26] In connection with the first ground raised on behalf of the writ
petitioner regarding violation of Principle of Natural Justice, it is submitted
by the learned senior counsel appearing for the respondents No. 1 and 2
that instead of filing written statement to the disqualification petitions,
miscellaneous applications were filed in all the pending disqualification
cases raising preliminary issues about the maintainability of the
disqualification cases. After hearing the parties in the said disqualification
cases, all the miscellaneous cases raising preliminary issues about the
maintainability of the disqualification cases were rejected by the Speaker
by a common order dated 06.06.2020. Only after disposal of the said
miscellaneous cases, the present writ petitioner filed a written statement
only on 12.06.2020. The disqualification cases which were earlier fixed on
17.06.2020 was postponed to 22.06.2020 as the Speaker was unwell.
However, due to the improvement of the health condition of the Speaker,
the date for hearing of the disqualification cases were preponed to
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 36
18.06.2020 from 22.06.2020 by issuing a notice dated 17.06.2020. It has
been submitted that the preponement of the hearing of the disqualification
case was done due to the improvement of the health condition of the
Speaker and the Speaker's desire to dispose of the pending disqualification
cases expeditiously in view of the direction given by the Hon'ble Supreme
Court under the judgment dated 21.01.2020 passed in Civil Appeal No. 547
of 2020 directing the Speaker to dispose of the pending cases within
4(four) weeks.
[27] It is also contended by the learned senior counsel for the
respondents No. 1 and 2 that the notice dated 17.06.2020 for preponing
the hearing of the disqualification case was served to one of the counsel,
viz., Mr. S. Gunabanta Meitei, learned counsel representing all the 7
(seven) MLAs including the present writ petitioner against whom
disqualification petitions were pending, through his Whatsapp number in
view of the urgency of the case and also in view of the fact that service of
notice through Whatsapp is a permissible mode of service before the
Supreme Court and various High Court in view of the COVID-19 Pandemic
related restrictions.
[28] It is also contended that receiving of the said notice dated
17.06.2020 by Mr. S. Gunabanta Meitei, the counsel of the writ petitioner,
through his Whatsapp number is on record. Moreover, the factum of
receiving such notice by Mr. S. Gunabanta Meitei on 17.06.2020 is clearly
revealed from the fact that the said notice dated 17.06.2020 was
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 37
challenged by the same counsel who received the said notice by filing
WP(C) No. 298 of 2020 before this Court on 18.06.2020 on behalf of one of
the MLAs against whom disqualification case was pending.
[29] It is further contended that the said WP(C) No. 298 of 2020 was
moved as an unlisted item before this Court on 18.06.2020 and this Court
passed interim order on the same day restraining the Speaker from
pronouncing the order/judgment in the disqualification cases. The operative
portion of the said order are as under:-
"1. The instant writ petition is taken up for consideration
today on mentioning being allowed by Hon‟ble the chief
Justice in view of the urgency involved in the matter. The
validity and correctness of the Notice dated 17-06-2020 and
the Cause List dated 18-06-2020 (wrongly typed as 17-06-
2020) are under challenge in this writ petition.
"2. It has been submitted by Mr. H.S. Paonam, learned
Senior Advocate that the manner in which the Notice dated
17-06-2020 has been issued, is unfair, unreasonable and
illegal for the reason that on 06-06-2020, an order was issued
by the Speaker Tribunal informing that the petitions for
disqualification would be listed on 17-06-2020 but on 16-06-
2020, a notice was issued informing that the said petitions
would be taken up on 22-06-2020 for further proceedings on
the ground that the Hon‟ble Speaker was indisposed/unwell. It
has further been submitted by him that in the late night of 17-
06-2020, i.e. yesterday, a message was received by some of
the counsels through their WhatApp that the said petition were
rescheduled on 18-06-2020, although copies thereof were not
officially received by some of the counsels through their
Whatsapp that the said petitions were reschedules on 18-06-
2020, were not disclosed in the said notice. In view of the
above submissions, it has been prayed that the Notice dated
17-06-2020 and the Cause List dated 18-06-2020 be quashed
and set aside. .......
"6. In view of the above, let notice be issued to the
respondents returnable on 19-06-2020 i.e., tomorrow and
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 38
since notices have been accepted by the learned counsels
appearing for the parties, no formal notice is called for.
By way of interim measure and in order to avoid further
complicacy in the disposal of the petitions pending before the
Hon‟ble Speaker, it is directed that the judgment/order which
is reserved and to be pronounced today by the Hon‟ble
Speaker, shall be kept in abeyance till tomorrow. It is made
clear that the order/judgment reserved today by the Hon‟ble
Speaker, shall not be pronounced by him till tomorrow....."
[30] It has been submitted on behalf of the respondents No. 1 and 2 that
despite receiving the notice dated 17.06.2020 for preponing of the hearing
of the disqualification cases from 22.06.2020 to 18.06.2020 and despite
having knowledge about the disqualification case being taken up for
hearing on 18.06.2020 at 1.00 p.m, the writ petitioner and his counsel
choose not to appear before the Speaker. Accordingly, the said
disqualification case had been heard and disposed of by the Speaker in
their absence. In view of such facts and circumstances, the contentions
advanced on behalf of the writ petitioner that he was not been given any
opportunity of being heard and that the impugned order dated 18.06.2020
had been passed in violation of the Principles of Natural Justice is
completely false, baseless and not sustainable in the eye of law and
accordingly, the same deserves to be rejected. The learned Senior counsel
relied on the judgment of the Apex Court in the case of
"ShrimanthBalasaheb Patil Vs. Speaker, Karnataka Legislative Assembly
&Others." reported in (2020) 2 SCC 595 Paragraphs 110 - 113 & 177 - 182.
[31] Mr. N. Ibotombi, learned Senior Advocate, appearing for the
respondent No. 3 contended that in the pleadings of the said
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 39
disqualification cases precise and categorical statements have been made
about the conduct of the writ petitioner and the events showing the writ
petitioner voluntarily giving up his membership of the Indian National
Congress (INC) and joining the BJP, supported by reports published in the
public domains by various printed and electronic media. The numerous
documents including newspapers, photographs, DVDs, etc., clearly shows
the reception program being held by the BJP facilitating the writ petitioner
and another for voluntarily giving up their original political party, i.e., INC
and joining the BJP and also other events wherein the writ petitioner
participated in the political programs being held by the BJP. However in the
written statement filed by the writ petitioner as well as in the pleadings of
the present writ petition, the writ petitioner has not specifically denied the
fact that he joined the BJP on 15-07-2017 and he has also not denied
specifically the existence of the newspapers as well as the authenticity of
the news reports contain therein. It has also been averred by the learned
Senior counsel that till to-day, the writ petitioner has never denied,
condemned or clarified, in public domain or before the Speaker, the news
report about his voluntarily giving up his original political party and joining
BJP. It has further been submitted by the learned Senior Advocate that in
his said written statement, the writ petitioner merely gave a general denial
by contending that newspaper report cannot be relied as it is not
trustworthy and that disqualification proceedings under Para 2(1)(a) of the
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 40
Tenth Schedule of the Constitution of India cannot be taken up against him
on the basis of the newspaper report clippings.
[32] It has also been submitted that the Speaker took up all the
disqualification cases jointly and after taking into consideration all the
pleadings and materials placed before him, particularly the undisputed fact
about the writ petitioner being facilitated by the BJP on 15.07.2017 by
holding a reception program on his voluntarily giving up the membership of
the INC and joining the BJP and the existence of the newspaper reports
and DVD containing the ISTV News and video clippings of the said
reception program held by the BJP on 15.07.2017, the Speaker passed the
impugned order dated 18.06.2000 disqualifying the petitioner from being a
member of the Manipur Legislative Assembly. The learned senior counsel
strenuously submitted that there is absolutely no ground for interfering with
the said impugned order passed by the Speaker.
[33] Countering the submissions made on behalf of the writ petitioner in
connection with the ground of perversity, Mr. N. Ibotombi, learned Senior
counsel submitted that separate writ petitions were filed in this High Court
challenging the orders passed by the Speaker rejecting the disqualification
cases filed against the other MLAs and praying for disqualifying them.
However, during the pendency of the said writ petitions, the MLAs against
whom disqualification cases were pending resigned from being a member
of the Manipur Legislative Assembly and thereafter, by-election in respect
of the constituencies vacated by the said MLAs had been held. In view of
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 41
the above, the said writ petitions were disposed of as infructuous without
deciding on the merit of the cases.
The learned Senior counsel appearing for the respondent No.
3 submitted that on the basis of undisputed material facts showing the
factum of the writ petitioner voluntarily giving up his membership of the INC
and joining the BJP, the writ petitioner had been disqualified by the
Speaker under Para 2(1)(a) of the Tenth Schedule of the Constitution of
India. As the facts and circumstances in respect of the other MLAs, who
have not been disqualified by the Speaker, are similarly situated with the
case of the present writ petitioner, they are also liable to be disqualified for
being a member of the Manipur Legislative Assembly as they have also
voluntarily given up their membership of their original political party.
Accordingly, the submissions advanced on behalf of the writ petitioner that
the benefit of rejection of disqualification cases in the case of other MLAs
must also be extended to the present writ petitioner is without any merit
and thus deserves an outright rejection.
[34] Mr. N. Ibotombi, learned Senior Advocate placed reliance in the
judgments of the Hon'ble Supreme Court rendered in the case of "Ravi S
Nayak Vs. Union of India & Others" reported in AIR 1994 SC 1558 (Para
18-20 & 24-29), "G. Vishwanathan Vs. The Speaker Tamil Nadu Legislative
Assembly" reported in AIR 1996 SC 1060 (Para 7, 10-13),"Manchandra
Prasad Vs. Chairman Bihar Legislative Council" reported in AIR 2005 SC
69 (Para 7, 11, 15, 16 & 19), "Jagjit Singh Vs. State of Haryana & Others"
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 42
reported in AIR 2007 SC 590 (Para 3, 13, 14, 22-24, 26, 28-29, 34, 35, 37,
38, 42-44, 48-49, 51-52, 80-86), "Rejendra Singh Rana Vs. Swami Prasad
Maurya & Others" reported in AIR 2007 SC 1305 (Para 11, 22, 25, 34, 35,
40-42, 44, 45, 48, 49-53),"K. Venkatachalam Vs. A. Swamickan& Another"
reported in (1999) 4 SCC 526 (Para 4 & 29), "Speaker Orissa Vs. Utkal
Parida" reported in AIR 2013 SC 1181 (Para 16), "Konda Murlidhar Rao
Vs. Dr. A Chakrapan" reported in AIR 2013 Andra Pradesh 65 (Para 8(6),
9, 13, 14-17, 20, 22, 27-33), order dated 21.03.2013 passed in SLP (C) No.
10377/2013 and "Shailesh Manu Bh Parmar Vs. Election Commission of
India" reported in AIR 2018 SC 3918 (Para 23).
[35] Mr. S. Biswajit, learned counsel appearing for the respondent No. 3
in WP(C) No. 360 of 2020 endorse the submissions advanced by the
learned Senior counsel appearing for the other respondents.
[36] Before considering the rival submissions advanced by the counsel
appearing for the parties, we may refer to some of the judgment rendered
by the Hon'ble Supreme Court which may be applicable in the facts and
circumstances of the present case.
The introduction of Tenth Schedule by amending Articles 102
and 199 of the Constitution under the Constitution (Fifty-second
Amendment) Act 1985, the provisions of the Tenth Schedule and the
Constitutional validity of the provisions contain in the Tenth Schedule had
been explained elaborately by the Hon'ble Apex Court in the case of "Ravi
S. Naik Vs. Union of India and Others" reported in 1994 Supp. (2) SCC
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 43
641 and also in the case of "Rajendra Singh Prasad and Others Vs.
Swami Prasad Maurya and Others" reported in AIR 2007 SC 1305. The
aforesaid judgments were referred to and followed in many other Supreme
Court judgments. The relevant portions of the said judgments are
reproduced hereunder for easy reference:-
In the case of "Ravi S. Naik Vs. Union of India and Others"
reported in 1994 Supp. (2) SCC 641 (Supra), the Hon'ble Apex Court held
at paragraphs 7 to 9 as under:-
"7. .......... The Tenth Schedule was introduced in the
Constitution by the Constitution (Fifty-second Amendment)
Act, 1985. As stated in the Statement of Objects and
Reasons, the said amendment was introduced to combat the
evil of political defections. It has been stated:
"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 anti-defection
Bill. This Bill is meant for outlawing defection and
fulfilling the above assurance."
"8. The provisions of the Tenth Schedule apply to
members of either House of Parliament or the State
Legislative Assembly or, as the case may be, either House of
the Legislature of a State. Paragraph 2 of the Tenth Schedule
makes provision for disqualification on the ground of
defection. Sub-paragraph (I) deals with a member belonging
to a political party. It provides for disqualification in two
situations, viz., (i) if he has voluntarily given up his
membership of such political party; and (ii) 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 authorised by it in this behalf, without
obtaining, in either case, the prior permission of such political
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 44
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.
Paragraph 3 removes the bar of disqualification in case of split
in a political party provided the group representing a faction
which has arisen as a result of split consists of not less than
one-third of the members of such legislature party. Paragraph
4 removes the bar of disqualification on the ground of
defection in a case of merger of a political party with another
political party. In sub-paragraph (1) of paragraph 6 the
question as to whether a member of a House has become
subject to disqualification under the Schedule is required to be
referred for the decision of the Chairman or, as the case may
be, the Speaker of such House and his decision shall be final.
Under sub-paragraph (2) of paragraph 6, all proceedings
under sub-paragraph (1) of paragraph 6 in relation to any
question as to disqualification of a member of a House under
the Schedule are to be deemed to be proceedings in
Parliament within the meaning of Article 122 or, as the case
may be, proceedings in the Legislature of a State within the
meaning of Article 212. Paragraph 7 bars the jurisdictions of
all courts in respect of any matter connected with the
disqualification of a member of a House under the Schedule.
Paragraph 8 empowers the Chairman or the Speaker of a
House to make rules for giving effect to the provisions of the
Schedule and such rules may provide for matters specified in
clauses (a) to (d) of sub-paragraph (1).
"9. The constitutional validity of the provisions
contained in the Tenth Schedule came up for consideration
before a Constitution Bench of this Court in KihotoHollohan v.
Zachillhu. The Court was unanimous in holding that
Paragraph 7 completely excludes jurisdiction of all courts
including the Supreme Court under Article 136 and High
courts under Articles 226 and 227 in respect of any matter
connected with the disqualification of the member of a House
and the Bill introducing the said amendment required
ratification by the State Legislatures under the proviso to
Article 368(2) of the Constitution and that no such ratification
was obtained for the Bill. There was, however, difference of
opinion on the effect of such non-ratification of the Bill. The
majority view was that paragraph 7 alone attracts the proviso
to Article 368 and the rest of the provisions of the Bill do not
require such ratification and since paragraph 7 is severable
from the rest of the provisions, paragraph 7 only was
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 45
unconstitutional and that the rest of the provisions of the
Tenth Schedule cannot be struck down as unconstitutional on
the ground that the Bill had not been ratified by one-half of the
State Legislatures before it was presented to the President
for his assent. The minority view, however, was that the entire
Bill required prior ratification by State Legislatures without
which the assent of the President became non est and that
the question of severability of paragraph 7 from the rest of the
provisions does not arise and further that paragraph 7 was not
severable from the rest of the provisions of the Bill. Since the
validity of the rest of the provisions, excluding paragraph 7,
have been upheld by the majority, the provisions of paragraph
6 have been construed in the majority judgment and it has
been held: (SCC pp. 711-712, para 111)
"That the Tenth Schedule does not, in providing
for an additional grant (sic ground) for disqualification
and for adjudication of disputed disqualifications, seek
to create a non-judiciable constitutional area. The
power to resolve such disputes vested in the Speaker
or Chairman is a judicial power.
That paragraph 6(1) of the Tenth Schedule to the
extent it seeks to impart finality to the decision of the
Speakers/Chairmen is valid. But the concept of
statutory finality embodied in paragraph 6(1) does not
detract from or abrogate judicial review under Articles
136, 226 and 227 of the Constitution insofar as
infirmities based on violation of constitutional
mandates, mala fides, non-compliance with Rules of
Natural Justice and perversity, are concerned.
That the deeming provision in paragraph 6(2) of
the Tenth Schedule attracts an immunity analogous to
that in Articles 122(1) and 212(1) of the Constitution as
understood and explained in Keshav Singh case to
protect the validity of proceedings from mere
irregularities of procedure. The deeming provision,
having regard to the words „be deemed to be
proceedings in Parliament‟ or „proceedings in the
Legislature of a State‟ confines the scope of the fiction
accordingly.
The Speakers/Chairmen while exercising powers
and discharging functions under the Tenth Schedule
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 46
act as Tribunal adjudicating rights and obligations
under the Tenth Schedule and their decisions in that
capacity are amenable to judicial review.
However, having regard to the Constitutional
Schedule in the Tenth Schedule, judicial review should
not cover any stage prior to the making of a decision by
the Speakers/Chairmen. Having regard to the
constitutional intendment and the status of the
repository of the adjudicatory power, no
quiatimetactions are permissible, the only exception for
any interlocutory interference being cases of
interlocutory disqualifications or suspensions which
may have grave, immediate and irreversible
repercussions and consequence."
In the case of "Rajendra Singh Prasad and Others Vs.
Swami Prasad Maurya and Others" reported in AIR 2007 SC 1305,
(Supra), the Hon'ble Apex Court held at Paragraphs 22 as under:-
"22. The Constitution (Fifty-Second Amendment) Act,
1985 amended Article 102 and 191 of the Constitution by
introducing sub-articles to them and by appending the Tenth
Schedule introducing the provisions as to disqualification on
the ground of defection. They were introduced to meet the
threat posed to democracy by defection. A ground of
disqualification from the membership of the Parliament or of
the Assembly on the ground of defection was introduced. The
constitutional validity of the amendment and the inclusion of
the Tenth Schedule was upheld by this court in
KihotoHollohan (supra) except as regards paragraph 7
thereof, which was held to require ratification in terms of
Article 368(2) of the Constitution. It is not in dispute that
paragraph 7 of the Tenth Schedule is not operative in the light
of that decision. The constitution Bench held that the right to
decide has been conferred on a high dignitary, namely, the
Speaker of the Parliament or the Assembly and the
conferment of such a power was not anathema to the
constitutional scheme. Similarly, the limited protection given to
the proceedings before the Speaker in terms of paragraph 6
of the Tenth Schedule to the Constitution was also justified
even though the said protection did not preclude a judicial
review of the decision of the Speaker. But that judicial review
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 47
was not a broad one in the light of the finality attached to the
decision of the Speaker under paragraph 6(1) of the Tenth
Schedule and the judicial review was available on grounds
like gross violation of natural justice, perversity, bias and such
like defects. It was following this that the Ravi S. Naik (supra)
decision was rendered by two of the Judges who themselves
constituted the majority in KihotoHollohan (supra) and the
observations above-referred to but which were explained
subsequently, were made. Suffice it to say that the decision of
the Speaker rendered on 6.9.2003 was not immune from
challenge before the High Court under Articles 226 and 227 of
the Constitution of India."
[37] Inthe case of "Ravi S. Naik Vs. Union of India and Others"
reported in 1994 Supp. (2) SCC 641 (Supra), the Hon'ble Supreme Court
has held at Para 11 of the judgment that 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. The Hon'ble Apex Court further held at Para 25 of the
judgment as under:-
"25. As regards the reference to the newspapers in
the impugned order passed by the Speaker it appears that the
Speaker, in his order, has only referred to the photographs as
printed in the newspapers showing the appellants with
Congress (I) MLAs and Dr. Barbosa, etc. when they had met
the Governor with Dr. Wilfred D‟Souza who had taken them to
show that he had the support of 20 MLAs. The High Court has
rightly pointed out that the Speaker, in referring to the
photographs was drawing an inference about a fact which had
not been denied by the appellants themselves, viz., that they
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 48
had met the Governor along with Dr. Wilfred D‟Souza and Dr.
Barbosa on December 10, 1990 in the company of Congress
(I) MLAs, etc. The talk between the Speaker and the Governor
also refers to the same fact. In view of the absence of a denial
by the appellants of the averment that they had met the
Governor on December 10, 1990 accompanied by Dr.
Barbosa and Dr. Wilfred D‟Souza and Congress MLAs the
controversy was confined to the question whether from the
said conduct of the appellants an inference could be drawn
that they had voluntarily given up the membership of the
MGP. The reference to the newspaper reports and to the talk
which Speaker had with the Governor, in the impugned order
of disqualification does not, in these circumstances, introduce
an infirmity which would vitiate the said order as being passed
in violation of the principles of natural justice."
[38] In the case of"Rajendra Singh Prasad and Others Vs. Swami
Prasad Maurya and Others" reported in AIR 2007 SC 1305, (Supra), the
Hon'ble Supreme Court after taking into consideration the facts and
circumstances of that case held in Para 49 as under:-
"49. Clearly, from the conduct of meeting the
Governor accompanied by the General Secretary of the
Samajwadi Party, the party in opposition and the submission
of letters requesting the Governor to invite the leader of that
opposition party to form a Government as against the advise
of the Chief Minister belonging to their original party to
dissolve the Assembly, an irresistible inference arises that the
13 members have clearly given up their membership of the
BSP. No further evidence or enquiry is needed to find that
their action comes within paragraph 2(1)(a) of the Tenth
Schedule".
[39] In the case of "Jagjit Singh Vs. State of Haryana and Others
reported in (2006) 11 SCC 1", it has been held by the Hon'ble Apex Court
that the proceedings under the Tenth Schedule are not comparable to
either a trial in a Court of law or departmental proceedings for disciplinary
action against an employee and that such proceedings are against an
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 49
elected representative of the people and Judge holds the independent high
office of a Speaker and that scope of judicial review in respect of
proceedings before such Tribunal is limited. The Hon'ble Apex Court
further held in Para 29 of the judgment as under:-
"29. It is also essential to bear in mind the objects for
enacting the defection law also, namely to curb the menace of
defection. Despite defection a Member cannot be permitted to
get away with it without facing the consequences of such
defection only because of mere technicalities. The substance
and spirit of law is the guiding factor to decide whether an
elected independent Member has joined or not a political party
after his election. It would not be a valid plea for a person who
may have otherwise joined a political party to contend that he
has not filled up the requisite membership form necessary to
join a political party or has not paid requisite fee for such
membership. The completion of such formalities would be
inconsequential if facts otherwise show that the independent
Member has joined a political party. The facts of the four
cases of independent elected Members are required to be
examined in the light of these principles".
[40] Keeping in view the law laid down by the Hon'ble Apex Court, we are
examining the legality and sustainability of the impugned order dated
18.06.2020 passed by the Speaker as well as the impugned bulletin on the
basis of rival contentions made on behalf of the parties.
[41] In the present case, specific allegations were made against the writ
petitioner in the Disqualification Cases that on 15.07.2017 the petitioner
along with another MLA of the Indian National Congress (INC) voluntarily
gave up their membership of their original political party of Indian National
Congress (INC) and joined the ruling party of Bharatiya Janata Party (BJP)
for the purpose of strengthening the coalition Government led by the BJP.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 50
It was also specifically alleged that a reception ceremony was held by the
BJP hosted by the Hon'ble Chief Minister of Manipur, Shri N. Biren Singh,
on 15.07.2017 to facilitate the writ petitioner and another INC MLA for their
voluntarily giving up membership of INC and joining the BJP. The event of
the writ petitioner and another INC MLA voluntarily giving up their
membership of INC and joining BJP and the reception function held by the
BJP to facilitate the writ petitioner and another INC MLA for their joining
BJP was covered by many printed and electronic media and the same was
published in the public domain. It was also alleged that such newspaper
and media reports published in the public domain clearly show the present
writ petitioner and another INC MLA wearing the apparel meant for BJP
and being facilitated by the BJP leaders. In the Disqualification Cases, it
was further alleged that the writ petitioner also participated in many political
works and programs organised by the BJP as a member of the BJP along
with other members of the BJP in his local areas by identifying himself as a
member of the BJP. In support of such allegations, copies of newspapers,
photographs and videos were filed along with the Disqualification Cases.
[42] In the written statement filed by the writ petitioner in connection with
the Disqualification Cases, the writ petitioner never specifically deny the
allegations that a reception program was held on 15.07.2017 by the BJP
hosted by the Hon'ble Chief Minister of Manipur and facilitate the writ
petitioner and another INC MLA for the act of their voluntarily giving up
their membership of the INC and joining the BJP.The writ petitioner also did
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 51
not deny the authenticity of the news reported in many printed and
electronic media as well as the existence of the newspapers reporting such
news and also the existence of the photographs and videos showing the
writ petitioner participating in the said reception programs and other events
organised by the BJP. The writ petitioner merely made a general denial by
stating that newspaper and media reports cannot be relied as it is not
trustworthy and that the disqualification proceedings under Para 2(1)(a) of
the Tenth Schedule of the Constitution of India cannot be taken against him
on the basis of the newspaper report/clippings.
[43] The Speaker heard all the Disqualification Cases jointly on
18.06.2020 and after taking into consideration all the pleadings, newspaper
reports, the photographs and DVDs in connection with the Disqualification
Cases, passed the impugned order disqualifying the writ petitioner for
being a member of the Manipur Legislative Assembly under Para 2(1)(a) of
the Tenth Schedule of the Constitution of India. While passing the said
impugned order dated 18.06.2020, the Speaker had relied on the news
reports published by many printed and electronic medias showing the writ
petitioner participating in the reception ceremony organised by the BJP and
being facilitated by the BJP leaders. Since the writ petitioner failed to deny
the existence and authenticity of the said news reports, the Speaker was
satisfied that an inference can be made that the writ petitioner had
voluntarily given up the membership of INC and accordingly the Speaker
disqualified the writ petitioner for being a member of the Manipur
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 52
Legislative Assembly in terms of Para 2(1)(a) of the Tenth Schedule of the
Constitution of India read with Article 191(2) of the Constitution of India.
[44] On examining the photographs/videos and newspaper reports filed
in connection with the Disqualification Cases, the existence of which was
never denied by the writ petitioner, we are of the considered view that there
were enough materials before the Speaker to draw an inference that the
writ petitioner had voluntarily given up his membership of the Indian
National Congress (INC). Further, in the absence of any specific denial by
the writ petitioner to the allegations made against him in the disqualification
cases especially the existence of the newspapers and the authenticity of
the reports made therein, we do not find any infirmity which should vitiate
the order passed by the Speaker disqualifying the writ petitioner and we
find no ground or justification for interfering with the impugned order
passed by the Speaker.
[45] On examination of the records of the Disqualification cases which
were placed before us, we found that the Disqualification Cases were filed
on 07.12.2017, 17.02.2018 & 26.11.2018 and notice was issued on
10.07.2019. Soon after receiving notice, the present writ petitioner entered
appearance through his counsel. Instead of filing written statement, the writ
petitioner filed miscellaneous applications raising preliminary objections of
the maintainability of the said disqualification cases. Only after dismissal of
the preliminary objections raised by the writ petitioner in his applications,
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 53
the writ petitioner filed his written statement in the Disqualification Case on
12.06.2020.
By an order dated 06.06.2020 passed by the Speaker all the
disqualification cases were fixed on 17.06.2020 for further proceedings,
however, on the direction of the Speaker, the date of hearing of the
Disqualification Cases was rescheduled to 22.06.2020 on account of the
illness of the Speaker. However, the hearing of the disqualification cases
were again preponed from 22.06.2020 to 18.06.2020 at 1:00 p.m. by
issuing a notice dated 17.06.2020 in view of the improvement of the health
condition of the Speaker and also in view of the urgent need for early
disposal of the disqualification cases as directed by the Hon'ble Supreme
Court in its judgment and order dated 21.01.2020 passed in the case of
"KeishamMeghachandra Singh Vs. Hon‟ble Speaker Manipur Legislative
Assembly" reported in AIR Online 2020 SC 54, wherein the Speaker has
been directed to decide the disqualification petitions pending before him
within a period of 4(four) weeks from the date on which the judgment of the
Apex Court was intimated to him.
[46] We are also in agreement with the submissions advanced by the
counsel for the respondents that the writ petitioner and his counsel have
knowledge in time about the issuance of the said notice dated 17.06.2020
preponing the date of hearing of the disqualification cases for the simple
reason that the said notice dated 17.06.2020 had been challenged before
this Court by filing WP(C) No. 298 of 2020 on 18.06.2020 by the counsel of
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 54
the writ petitioner representing one of the MLAs against whom
disqualification cases was pending.
Despite having knowledge about the preponement of the
hearing of the disqualification cases, the writ petitioner and his counsel
choose not to appear before the Tribunal and accordingly the Speaker
heard and disposed of the disqualification cases in their absence.
[47] Considering the above facts, we are satisfied that ample
opportunities have been given to the writ petitioner for defending himself in
the disqualification cases filed against him and we cannot agree with the
submissions advanced on his behalf that the impugned order had been
passed in violation of the Principles of Natural Justice.
[48] In view of our findings given hereinabove about the availability of
undisputed and abundant materials before the Speaker to draw an
inference that the writ petitioner had voluntarily given up his membership of
the INC and joined BJP, and also about giving ample opportunity to the writ
petitioner for defending himself in the disqualification cases including giving
of notice about the hearing of the disqualification cases on 18.06.2020, we
are of the considered view that there is no valid ground to substantiate the
allegations of malafide, as raised by the counsel for the petitioner, in the
conduct of the Speaker while passing the impugned disqualification order.
We are also of the considered view that the decisions of the Hon'ble Apex
Court cited by the learned Senior counsel for the writ petitioner in support
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 55
of his contentions has no application to the facts and circumstances of the
present case.
[49] We cannot also agree with the grounds of perversity raised by the
learned Senior counsel for the writ petitioner for the simple reason that the
Speaker passed the impugned disqualification order after taking into
consideration all the pleadings, newspaper reports, the photographs and
DVDs filed in connection with the disqualification cases. While passing the
said impugned disqualification order, the Speaker relied on the news
reports published by many printed and electronic medias showing the writ
petitioner participating in the reception ceremony organised by the BJP and
being facilitated by the BJP leaders. The writ petitioner failed to deny the
existence and the authenticity of the said newspapers and there was also
no denial of the reports made therein. Accordingly, an inference was rightly
drawn by the Speaker that the writ petitioner had voluntarily given up his
membership of the Indian National Congress Party and we are also of the
opinion that the action of the Speaker in drawing such inference on the
basis of the conduct of the writ petitioner cannot be found fault with in the
light of the law laid down by the Hon'ble Supreme Court referred to
hereinabove. In the facts and circumstances of the present case, it appears
to us that the conduct of the writ petitioner has very much established that
he has voluntarily given up his membership of the Indian National
Congress Party and we accordingly, declined to interfere with the
impugned disqualification order on the ground of perversity.
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 56
[50] With regard to the contentions of violation of constitutional mandate
while passing the impugned disqualification order, it is to be pointed out
that in compliance with the interim order dated 18.06.2020 passed by this
Court in W.P.(C) No. 298 of 2020, the Speaker did not announce the order
in the disqualification case in respect of the petitioner who filed the said writ
petition. Accordingly, it is not correct to contend that the Speaker ignored
the Interim order dated 18.06.2020 passed by this Court in W.P.(C) No.
298 of 2020 and announced the order in the disqualification cases. In view
of the above, there is no case of violation of constitutional mandate while
passing the impugned disqualification order.
[51] In the absence of denial by the writ petitioner of the existence and
authenticity of the newspapers and as there is also no denial of the reports
made in the newspapers about the factum of the writ petitioner participating
in the reception ceremony organised by the BJP and being facilitated by
the BJP leaders on his voluntarily giving up the membership of the Indian
National Congress Party and joining the BJP, the question of admissibility
of the reports contain in the newspapers as a piece of evidence has
virtually lost its relevance. Accordingly, we are also of the considered view
that the judgment of the Hon'ble Apex Court cited by the learned Senior
counsel for the petitioner has also no application in the facts and
circumstances of the present case.
[52] In the totality of the facts and circumstances of the present case, we
are of the opinion that the Speaker has rightly passed the impugned order
W.P. (C) No. 332 of 2020, WP(C) No. 360 of 2020 & W.P. (C) No. 361 of 2020 Page 57
taking into consideration the conduct of the writ petitioner about which
there was no denial by the writ petitioner.
[53] In view of the ongoing discussion and findings, we are of the opinion
that the orders of the Speaker are in accordance with the provisions of
Tenth Schedule of the Constitution of India and do not called for any
interference by this Court in exercise of the power of judicial review under
Article 226 of the Constitution of India.
The writ petition, therefore, fails and is accordingly dismissed.
There will be no order as to costs.
JUDGE JUDGE
FR/NFR
Lhaineichong
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