Mayawati Vs. Markandeya Chand & Ors [1998] INSC 493 (9 October 1998)
Punchhi, Cji:
Hon'ble The Chief Justice,Hon'ble Mr. Justice K.T. Thomas, Andhon'ble Mr Justice M. Srinivasan.
ACT:
HEAD NOTE:
The following Judgments of the Court were delivered:
I have bestowed great care in reading the two elaborate but sharply cleaving draft Judgments prepared by my learned brethren, K.T. Thomas, J. and M. Srinivasan, J. resting on the provisions contained in the Tenth Schedule of the Constitution. I need to emphasis at the outset, in the context above, the importance of recording of events which take place in the House, which means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of State, because Clause (b) of Paragraph 3 provides that from the time of such split, such faction shall deemingly become the political party...
The Speaker/Chairman in the nature of his role when informed of a spilt is administratively the time keeper and he has to be definite in respect of the time of such split. Or is there any scope for procrastination? He is the Tribunal undoubtedly for quasi-judicial purpose.
In Kihoto Hollohan V. Zacnillnu & Others, 1992 Supp.(2) SCC, the majority, in Paragraph 109, has summed up the nature of the function exercised by the Speaker/Chairman under Paragraph 6(1) to be that of a Tribunal and the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 to be confining to jurisdictional errors only vix., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.
The question however as to whether a Member of the house has become subject to disqualification must arise for decision under Paragraph 6(1) of the Tenth Schedule only on its being referred for decision of the Speaker/Chairman and not on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is not to apply to a case of split. Is not the cognition of the Speaker/Chairman of the occurrence of split not administrative in nature, unconnected with decision making on disqualification is it an adjunct thereto? Kihoto Hollohan is silent on this aspect. If the act of cognoscing the time of such split is the administrative function of the Speaker/Chairman, the scope of judicial review of the said administrative act would, to my mind, be qualitatively different than what it is when testing his quasi-judicial order as a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 the report, apparently confines to decision making by the Speaker/Chairman in Paragraph 6(1) on reference of the question of disqualification, inviting his decision, and leaves his role under Paragraph 3 untouched.
These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of the Speaker's decision, obligating him at a point of time to record categorically when the split took place thereby pinning the time of such split. I opine therefore that the matter be referred to the Constitution Bench for decision.
SRINIVASAN J.
------------ Leave granted.
I have had the advantage of perusing the draft judgment prepared by learned brother Thomas, J. I am unable to agree with the same. My judgment in this case is as follows:
A. PRELUDE
1.Though the Anti-defection law contained in Articles 101,102, 190 and 191 and the 10th schedule of the constitution was born after a very long period of gestation (from 1967 to 1985), it has not had the desired effect. The need for scrapping it and ushering in a new law has been realized. It is hoped that before a new law is enacted regard will be had to the following passage in Chawla's Election Law and Practice (6th Edn.) p.1.589 :
"Looked at from a more fundamental angle, inasmuch as the point of reference for every case of defection is a political party, no reforms in the Anti Defecting Law would be meaningful without a deep analysis of the conception, structure, functioning and role perception of political parties in our polity.
Parties as they exist and operate today hardly deserve any protection against defection by their members. If parties are not based on any principles, ideologies or programmes and if they are not democratically run, there can be no question of any principles being involved in either defecting or staying with a party.
2.The events in the Legislative Assembly of the State of Uttar Pradesh after the general elections in 1996 justify the above view. While expressing my concurrence with the above view, I wish to point out with great dismay that those days of statesmen who rendered selfless service to the country are gone and alas! these are days of politicians who want the country to serve them. But the issues in this case have to be resolved by constitutional measurement, free of any predilection.
B. Chronology.
3.In the general elections to the U.P. Legislative Assembly which took place in 1996 no political party obtained absolute majority. There was an agreement between the Bhartiya Janata Party ('BJP' for short) and the Bahujan Samaj Party ("BJP' for short) to support each other for running the Government. The BSP had 67 MLAs who were elected on its fold. Pursuant to the agreement the appellant belonging to BSP became the Chief Minister of the State on 21.3.97 On 21.9.97 Kalyan Singh belonging to the BJP became the Chief Minister. On 19.10.97 the appellant announced withdrawal of participation and support of BSP to the coalition government.
All the BSP Ministers resigned from the Government.
Immediately the Governor of the State convened a special Session of Assembly at 11.00 A.M. on 21.10.97 and told Kalyan Singh to prove his majority on the Floor of the House.
On 20.10.97 the appellant issued a whip directing all BSP MLAs to remain present in the House throughout the proceedings on the next day and vote against the Motion of Confidence to be moved by the Chief Minister.
4. On 21.10.97 there was pandemonium and violence in the Assembly and several MLAs went out of the House. In the proceedings which followed, 222 Members of the Assembly voted in favour of the Government. There was no vote opposing the Motion.
5.In the speeches which followed, Mr. Sardar Singh congratulated the speaker for being able to preside over the Assembly without getting hurt. He narrated as to how instructions were given by the appellant to the members of BSP to indulge in violence and cause confusion including causing hurt to the Speaker. Markandeya Chand another member told the Speaker that along with him 23 others had quit the BSP and supported the Government. Respondents 1 to 12 had voted in support of the Motion.
6.On 24.10.97, 13 petitions were filed by respondents 1 to 12 as well as one Hari Krishan on the ground of violation of whip issued by her on 20.10.97. The petitions invoked only clause 2(1)(b) of the Tenth Schedule to the Constitution. On 27.10.97 respondents 1 to 12 became Ministers and joined the Cabinet. On 11.11.97 another set of 13 petitions similar to those filed by the appellant were filed by one Mr. R.K. Chowdhary claiming the same relief on the same ground. After removal of defects by amendments, the petitions were taken on file and notice was ordered. In these proceedings we are not concerned with the petition against Hari Krishan which was later dismissed as withdrawn.
On 25.11.97 respondents 1 to 12 filed written statement in which is was inter alia pleaded that a split took place between the Members of the BSP on 21.10.97 and more than 1/3rd Legislators of the BSP got separated. It was averred that the appellant had instructed the members of her Legislature Party to disturb the proceedings of the Assembly and cause hurt to the Speaker. On the very next day i.e.
26.11.97 the appellant filed a replication statement in answer to the written statement of the respondents. there was no denial whatever of the split referred to in the written statement. The only plea in that replication pertained to the whip issued on 20.10.97 and the non-withdrawal of the same by the appellant on 21.10.97.
7. On 5.12.97 the appellant filed an application for amendment of the petition in which disqualification of the respondents was sought under clause 2(1)(a) or the Tenth Schedule. The relevant part of the pleading was as follows:
"That it is clear from the perusal of the reply of the respondent filed on this petition on 25.11.97 that the respondent has voluntarily given up the membership of Bahujan Samaj Vidhan Dal. That the respondent had contested and won the elections of Vidhan Sabha on the ticket of BSP and in this manner he is disqualified from the membership of the Vidhan Sabha.
There was also a denial of the correctness of the Statement made by Markandeya Chand on the Floor of the Assembly on 21.10.97 that 23 Legislators of BSP were supporting him.
8. Inspect of opposition by the respondents the amendment was allowed by the Speaker. That order was challenged by the respondents in W.P. No. 348 of 1998 on the file of the High Court of Allahabad, Lucknow Bench. That writ petition is said to be pending after notice. Thereafter an additional written statement was filed by Vansh Narain Singh on 2.2.1998. These was a narration of the split in BSP and formation of new group named as Jantantrik BSP ('JBSP' for short). The reasons for such a split were set out in detail.
It was further stated that the members of JBSP were not less than 1/3rd of the total number of BSP MLAs. It was also averred that the appellant and a few other members of the BSP started terrorizing and threatening the members of the JBSP with attack on their lives and also prevented their coming to and going from Lucknow. There was also an allegation that signatures of some of those persons who had become members of JBSP were taken on blank papers by coercion. The appellant did not file any reply statement.
9.On 24.2.98 the hearing of the matter started. It continued on 25.2.98. During the course of the hearing respondents 1 to 12 filed two affidavits containing a list of 26 names who formed part of the group on 21.10.97. An explanation was given in the affidavits as to why there was delay in furnishing the names of those MLAs. Some of the members mentioned in the list were present before the Speaker along with the respondents. the appellant filed nine affidavits on the same day around 7.40 P.M. The hearing concluded on 25.2.98 and order were reserved.
10.Thereafter on 4.3.98 and 10.3.98 the respondents filed another set of affidavits repeating almost the case already put forward. On 16.3.98 R.K. Chaudhary applied for certified copies of those affidavits. When the said certified copies were furnished he was informed that if he had any submissions to be made in regard to those affidavits he could present the same on 19.3.98 at 1.00 P.M. No further affidavits were filed by the appellant or R K Chaudhary. The speaker pronounced the judgment on 23.3.98 dismissing the petitions for disqualification. He recognized 19 MLAs as forming a separate political party by the name JBSP.
11.It is that judgment of the Speaker which is challenged in this appeal. Originally S.L.P. was filed against respondents 1 to 12 only. When the matter came before Court in 10.8.98, on the request of the appellant's counsel the Speaker was added as a party (13th respondent) and the matter was adjourned to 25.8.98. On the latter date the following order was passed:
"Mr. Sibal, learned senior counsel for the petitioner states that the Speaker was got impleaded as a party because of the first respondent having raised an objection in his counter that the Speaker should have been made a party. Mr. Sibal further states that the Speaker, otherwise, is a proforma party and he need not file a counter." The matter was directed to be listed for final disposal on 8.9.98 and liberty was given to the counsel for respondents to file additional affidavits if necessary. The case was heard on 8th to 10th, the afternoon of 11th and the afternoon of 14th.
C. FINDINGS OF THE SPEAKER
12.(i) The direction/whip dated 20.10.97 by the appellant was not issued in accordance with paragraph 2 (1) of the Xth Schedule of the Constitution and as such it was unconstitutional and illegal with the result the respondents are not liable to be disqualified under that paragraph for voting contrary to it.
(ii) The petitions filed by the appellant did not fulfill the requirements of 'The Members of Uttar Pradesh Legislative Assembly (Disqualification on grounds of Defection) Rules, 1987' (hereinafter referred to as the Rules) in as much as they did not contain a statement of material facts and consequently the petitions where liable to be dismissed under Rule 8 (ii) of the said rule.
(iii) The appellant had in fact issued a direction on 21.10.97 to the B.S.P. M.L.As for creating disturbances and committing violence in the House on that date and therefore the direction issued by her earlier on 20.10.97 was superseded/withdrawn/waived and made ineffective. As such, the respondents could not be disqualified for having voted contrary to the direction dated 20.10.97.
(iv) there was a split in the B.S.P. on 21.10.97 as a result of which there arose a faction and 26 M.L.As mentioned in annexures 1 and 2 of Chowdhary Narender Singh's affidavit dated 24.2.98 who were more than 1/3rd members of the BSP Legislature Party constituted a group representing the said faction. Constituted a group became the 'original political party' known as JBSP. The members of the said group where entitled to protection of para 3 of the Xth Schedule of the Constitution. Further, after the split of the BSP and formation of the group of 26 MLAs on 20.10.97, there was a further split in the JBSP on 15.1.98 as a result of which 19 MLAs continued to remain members of JBSP Legislature Party.
(v) As a result of the aforesaid findings the petitions filed by the appellant and the petitions filed by R.K.Chaudhary were dismissed. The 19 persons set out in the order were dismissed. The 19 persons set out in the order were declared as members of JBSP in the Assembly.
13. Mr Kapil Sibal who appeared for the appellant submitted that the order of the Speaker suffers from jurisdictional errors based on violation of the constitutional mandates, non-compliance with rules of Natural Justice and perversity.
He stated expressly that he was not attacking the order on grounds of bias or mala fides though they were raised in the S.L.P.
14.Dr. L.M. Singhvi argued on behalf of the first respondent while Mr. Ashok Desai represented respondents 2 and 3. Mr. R.K. Jain argued for respondents 4,5 and 6 and Mr. K.N. Balgopal represented the 7th respondent. The substance of the contentions urged on behalf of the respondents is as follows:
The order of the Speaker is a well structured one. The findings of facts rendered by him are based on the evidence on record. The order does not suffer from any perversity. Nor is it vitiated by violation of Constitutional mandates or principles of Natural Justice. Even if the order is set aside, the matter has to go back to the Speaker for a fresh decision in accordance with the judgment of this Court.
E. ARTICLE 145(3) OF THE CONSTITUTION
15. In the midst of his arguments Dr. Singhvi invited our attention to Article 145(3) of the Constitution of India and submitted that as the case involves several substantial questions of law as to the interpretation of the Constitution it should be heard by minimum number of five Judges. When the said submission was made, arguments had already been heard for two days. The Hon'ble the Chief Justice observed that there is an 'Interpretation Clause' in the Xth Schedule and every question of law is not a substantial question of law. Dr. Singhvi did not persist the matter further.
However Mr. Ashok Desai who argued on the last day of the hearing handed over a paper setting out proposed substantial questions of law/questions as to interpretation of Constitution. He has mentioned 9 questions therein. In my view question numbers 4 and 9 therein fall within the ambit of Article 145(3). They read as follows:
"4. The manner, authority, and other requirements of a valid whip for disqualification under Clause 2 (1) (b) of the Xth Schedule, especially the meaning of expressions "political party' and of 'any person or authority authorised".
"9. Whether order of speaker refusing to disqualify members of house be substituted by disqualification in course or judicial review".
F. DISCUSSION -------------
16. The contentions of the appellant's counsel can be classified under three main heads (i) violation of constitutional Mandates (ii) violation of principles of Natural Justice; (iii) Perversity.
(i) Violation of Constitutional Mandates.
This can be sub divided into two:
(a) violation of para 2 (1) (b);
(b) violation of para 2 (1) (a) of the Xth Schedule of the Constitution.
A common defence to grounds under both sub paras (a) & (b), is available in para 3. If the situation contemplated in para 3 is proved, neither para (a) nor para (b) will help the appellant. Para 2(1) is in the following terms:
"2. Disqualification on ground of defection - (1) Subject to the provisions of paragraphs 3,4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House, - (a) if he has voluntarily given up his membership of such political party; or (b) If he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorized by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Explanation - For the purposes of this sub-paragraph, (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;
(b) a nominated member of a House shall, -
(i) Where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188".
Para 3 reads as follows:-
3. Disqualification on ground of defection not to apply in case of split - Where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of the split in his original political party and such group consists of not less than one-third of the members of such Legislature party, (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground - (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph." (a) Violation of para 2 (1) (b)
17. Apart from the defence under para 3, an additional defence relating to para 2 (1) (b) has been raised in this case. That has been accepted by the Speaker and findings have been rendered accordingly. Though it is a question involving interpretation of a provision in the constitution and requires to be decided by a Bench of at least five Judges, I am bound to express my opinion here as the case has been heard fully by this Bench. Both parties argued the question at length before the Speaker and invited his findings. Before us also, the appellant's counsel argued it at length and the respondents' counsel replied. Hence it is necessary to express an opinion.
18. The argument of the appellant is that the expression 'political party' in sub-para (b) means 'political party in the House', in other words, the 'Legislature Party'. This argument runs counter to the definition contained in para 1(c). According to that definition, 'original political party' in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2. The expression 'original political party' is used in para 3 only. Para 2, does not at all use the expression 'original political party' . The said expression in para 3 is equated to the expression 'political party' in para 2(1). The definition clause in para 1 (c) does not make any distinction between sub para (a) and sub para (b) of para 2. But the appellant's counsel wants to make such a distinction. According to him 'political party' in sub para (a) would refer to 'original political party' but the same expression in sub para (b) would refer only to the 'Legislature Party'. The term 'Legislature Party' having been defined in para 1(b) could well have been used in para 2 (1) (b) instead of the term 'political party' if the intention of the Parliament was to refer only to the Legislature Party.
19. There is another feature in Para 3 (b) which negatives the appellant's argument. According to para 3(b), from the time of split in the original political party such as the one referred to in the first part of the para, the faction referred to therein shall be deemed to be the political party to which the concerned member belongs for the purposes of sub-para (1) of para 2 and to be his original political party for the purposes of paragraph 3. The entire sub-paragraph (1) of para 2 is referred to therein meaning thereby both clauses (a) and (b) of the sub-para 1 and no distinction is made between the two clauses. Hence for the purposes of clause 'a' as well as clause 'b' the faction referred to in the first part of para 3 shall be deemed to be the original 'political party' mentioned in para 3. It is thus clear that 'political party' in clause (b) of sub-para (1) of para 2 is none other than 'original political party' mentioned in para 3.
20. The argument that the context in para 2 (1) (b) requires to equate 'political party' with 'legislature party' even though the definition clause reads differently is not acceptable. A reading of sub para (b) the Explanation in para 2 (1) places the matter beyond doubt that the 'political party' in sub para (b) refers to the 'original political party' only and not to the Legislature Party. According to the explanation, for the purpose of the entire sub para, an elected member of the House shall be deemed to belong to the political party. if any, by which he was set up as a candidate for election as such member. Certainly, the Legislature Party could not have set up the concerned member as a candidate for election.
21.According to learned counsel for the appellant, the Legislature Party may have to take decisions on urgent matter in the House and as it represents the original political party in the House, whatever direction is issued by the Leader of such Legislature Party must be regarded as a direction issued by the political party. There is no merit in this contention. When the provision in the constitution has taken care to make a distinction between the Legislature Party and the original Political party and prescribe that the direction should be one issued by the political party or by any person or authority authorised in this behalf, there is no meaning in saying that whatever the Leader of the Legislature Party directs must be regarded as that of the original political party.
22. The reason is not far to seek. Disqualification of a member elected by the people is a very serious action and before that extreme step is taken, it should be proved that he acted contrary to the direction issued by the party which set him up as a candidate for election.
23. In 'Hollohan' 1992 Supp (2) 651, the majority dealt with the expression 'any direction' in Para 2(1) (b) and held that the objects and purposes of the Xth Schedule define and limit the contours of the meaning of the said expression. It is advantageous to extract para 122 of the judgment which reads as follows:- "While construing Paragraph 2(1) (b) it cannot be ignored that under the Constitution Members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the constitution and the rules and standing orders regulating the Procedure of the House [Article 105 (1) and Article 194 (1)]. The disqualification imposed by paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a Member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the Member belongs went to the polls. For this purpose the direction given by the political party to a Member belonging to it, the violation of which may ential disqualification under Paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the electorate. The voting or abstinence from voting by a Member against the direction by the political party on such a motion would amount to disapproval of the programme on the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate".
24. If the direction referred to in para 2 (1)(b) is to be restricted to the two kinds referred to in the said passage, there is no doubt that 'political party' in para 2(1)(b) refers only to the 'original political party' as it is only such party which could issue such direction. In such matters, the members of the House would certainly be given sufficient notice in advance and original political party would have sufficient time to take decisions and issue directions.
25. In 'The Journal of Parliamentary Information'. 1993 (Vol.39). Article 19. Anti - Defection Law - Split In parties by D. Sripada Rao @ p.p. 104 and 105, it is stated as follows:- "It is not as though the schedule does not take into its fold the outside events and organisation.
The Schedule mentions the direction of the political parties. etc. in Clause (b) of sub-para (1) or para 2. The direction of a member of the House can be from a functionary of a political party outside the House according to the constitution of the respective parties. The label which a member carries and ultimately goes to constitute his Legislature Party under rule 4(2) is an agency outside the House.
A member is disqualified for giving up that label and not the membership of the Legislature Party. The operation of the Schedule is not exclusively intramural or confined to the four walls of the House, where the Speaker's writ runs. If the intention of the Parliament in enacting the schedule is to confine the Speaker merely to count the members of the Legislature Party there is no need to mention 'the original political party' in paras 3 and 4 in connection with split or merger. A party split outside the House without the support of 1/3rd members inside the House renders it to wipe out its identity in the House and the House and the Members who engineer a split in Legislature Party without there being a corresponding split in the party outside make themselves vulnerable to forego their seat in the House albeit their command over 1/3rd legislature party".
The above passage shows that no distinction can be made between sub para (a) and sub para (b) vis a vis the meaning of the term 'political party' and that it means only the original political party.
26. It has been rightly held by the Speaker that there is no material whatever to hold that the direction issued on 20.10.97 was issued by the B.S.P. or that the appellant was authorized by the BSP to issue such a direction. Neither before the speaker non before us any such plea was even raised.
27. There is also no difficulty in accepting the finding of the Speaker that the direction dated 20.10.97 was not in accordance with the law laid down by this court in 'Hollohna' - In para 123, it is said:
"Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction".
Mr. Sibal's contention that such a warning as mentioned in the above passage is necessary only when whips are issued on unimportant matters and that the above passage in 'Hollohan' is misunderstood by the Speaker is unsustainable. A reading of paras 122 and 123 in 'Hollohan' clearly shows that no meaning can be given to para 123 other than that given by the Speaker.
28. Hence I hold that the Speaker has not violated para 2(1)(b) of the Tenth Schedule.
(b) Violation of Para 2(1)(a) -------------------------
29. The attack of the appellant on the factual findings of the Speaker could be more conveniently and appropriately considered when I discuss violation of principles of Natural Justice and perversity. Under this head, I would discuss the question of law raised by Mr. Sibal.
30. The meaning to be given to the work 'split' in Para 3 is left open in 'Hollohan'. In Para 124, it is said:
"There are some submissions as to the exact import of a "split" - whether it is to be understood an instantaneous, one time event or whether a 'split' can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature broke away from it on a particular day and a few more members joined the splinter group a couple of days later, would the latter also be a part of the 'split' group. This question of construction issues. The meaning to be given to "split" must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypothetical predications can or need be made. We, accordingly, leave this question to be decided in an appropriate case".
31. Issue No. 6 framed by the Speaker is as follows:- "Whether on 21.10.97 a group was formed in Bahujan Samaj Party Legislature Party under paragraph 3 of Tenth Schedule of the constitution representing the group which had arisen as a result of split in Bahujan Samaj Party and whether there were at least one-third members of Bahujan Samaj Party Legislature Party in such group? If yes, its effect.
There is no dispute before us as to the correctness of the issue as framed. There is also no difference of opinion among the two sides as to the meaning of para 3.
32. The only question of law raised by Mr. Sibal relates to the maintainability of the plea of split in default of compliance with Rule 3 of the Rules. According to the learned counsel, the Rules, having been framed in exercise of the powers conferred by para 8 of the Tenth Schedule for giving effect to the provisions of the schedule, have the same force as constitutional mandates and non-compliance thereof would disentitle the concerned party from invoking the provisions of the constitution. Rule 3(1) of the Rules reads thus:
"3. (i) The leader of each legislature party, other than a legislature party consisting of only one member shall within thirty days from the date of the first sitting of the House, or, where such legislature party is formed after such date, within thirty days from the date of its formation, and in either case within such further period as the Speaker may for sufficient cause allow, furnish the following to the Speaker, namely:- (a) a statement in writing in Form I containing the names of members and other particulars of such legislature party:
(b) names and designations of each such member of the legislature party who has been chosen as leader of that party or authorized for the purposes referred to in clause (f) of rule 2, to act as, or to discharge the functions of, such leader;
(c) names and designations of such members of the legislature party who have been authorised for the purposes of these rules to correspond with the Speaker;
(d) a copy of the constitution and rules (by whatever name called) of such legislature party and of the political party to which its members are affiliated".
33. Learned counsel submits that in the present case though the split was alleged to have taken place on 21.10.97.
Markandeya Chand, the leader of JBSP did not within thirty days from the said date or for that matter till 25.2.98, the day on which the arguments before the Speaker were concluded furnish the statement etc. as set out in thee Rule. Hence according to him the respondents were not entitled to raise the plea of split in this case.
34. According to him the decision of this Court in Ravi S. Naik Versus Union of India and Another etc. 1994 Supp (2) S.C.C. 641 is not correct and it requires reconsideration.
It is therefore argued that thee order of the Speaker placing reliance on the said ruling is erroneous and has to be seat aside.
35. Before referring to Ravi S. Naik (supra) I would consider the question on first principles. Para 3 of the Tenth Schedule excludes the operation of para 2 (1)(a) and (b) where a member of a House makes a claim that he and any other member of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party. The following are the conditions for satisfying the requirements of the para:
(i) A split in the original political party giving rise to a faction.
(ii) The faction is represented by a group of MLAs in the House.
(iii) Such group consists not less than one third of the members of legislature party to which they belong. For the purpose of that para all the three conditions must be fulfilled. It is not sufficient if more than 1/3rd members of a legislature party form a separate group and give to itself a different name without there being a split in the original political party. Thus the factum of split in the original party and the number of members in the 'group' exceeding 1/3rd of the members of the legislature party are the conditions to be proved.
36. Rule 3 provides for furnishing of information to the speaker. Rule 6 provides for recording of such information in a register to be maintained by the Secretary. Will the recording of information in the register conclude the issue relating to the two requirements of para 3 of the Tenth Schedule? There is not even a provision for presumption as to the correctness of the entries in the register maintained under Rule 6. The entries would at best only show that such and such information was furnished by such and such member.
The entries in the register cannot have any other effect whatever.
37. Rule 10 enables the Speaker to issue from time to time such directions as he may consider necessary in regard to the detailed working of the rules. Will such directions also be considered as constitutional mandates?
38. Rules 7,8 and 9 set out the procedure for seeking disqualification of a member. In this case the petitions for disqualifications were filed even on 24.10.97 long before the expiry of the period of 30 days specified in Rule 3. The question of disqualification had to be decided in those petitions. The power to decide disputed disqualification under Para 6(1) of the Tenth schedule is 'preeminently of a judicial complexion'. The Speaker or the Chairman acting under Para 6(1) is a Tribunal (See 'Hollohna' 1992 Supp. (2) S.C.C.651). Can the entries in the register maintained under rule 6 by the Secretary have the effect of establishing the two conditions required for para 3 of the Tenth Schedule? It can if at all be only a piece of evidence in support of the claim of one party. If as contended by the appellant's counsel, failure to comply with the rule will prevent the raising of a plea of split, the compliance of the rule must have the effect of conclusively proving the conditions required for para 3. That will lead to an anomalous situation. When a disqualification proceeding is initiated against the members who claim the benefit of para 3 they can defeat the proceeding by furnishing some information to the Speaker under Rule 3 and getting it recorded in the Register under rule 6. Thus a matter which has to be decided judicially under Para 6(1) of the Tenth schedule may get decided administratively by compliance of Rules 3 and 6.
Undoubtedly such a status cannot be given to the rules which are only procedural. If the contention of Mr. Sibal is accepted, form will stand exalted over substance.
39. Now I shall advert to 'Ravi S. Naik' 1994 Supp. (2) S.C.C. 641. Both the learned Judges who decided the case were party to the majority Judgment in "Hollohan'. it is too much to say that they had not properly understood their own dictum in 'Hollohan', the Bench dealt with the facts of each appeal separately. The Bench observed in C.A. 3390 of 1993 as follows:
"... The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of Paragraph 6 of the Tenth Schedule to the constitution. The Disqualification Rules are therefore procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case. Moreover, the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph(1) of paragraph 6 as construed by this court in Kihoto Hollohan case is confined to breaches of the constitutional mandates, mala fides, non compliance with rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the constitution which is impermissible.
Since the Disqualification rules have been framed by the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the constitution and cannot be equated with the provisions of the constitution. They cannot therefore be regarded as constitutional mandates and any violation of the Disqualification rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in kihoto Hollohan case.
40. Again in Civil Appeal 2904 of 1993. the Bench dealt with Paras 2 and 3 of the 10th Schedule and said:
" As noticed earlier paragraph 2 of the Tenth Schedule provides for disqualification on the ground of defection if the conditions laid down therein are fulfilled and paragraph 3 of the said schedule avoids such disqualification in case of split.
Paragraph 3 proceeds on the assumption that but for the applicability of the said provision the disqualification under Paragraph 2 would be attracted. The burden to prove the requirements of paragraph 2 is on the person who claims that a member has incurred the disqualification and the burden to prove the requirements of paragraph 3 is on the member who claims that there has been a split in his original political party and by virtue of said split the disqualification under paragraph 2 is not attracted. In the present case Naik has not disputed that he has given up his membership of his original political party but he has claimed that there has been a split in the said party. The burden, therefore, layon Naik to prove that the alleged split satisfies the requirements of paragraph 3. The said requirements are:
(i) The member of a House should make a claim that he and other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original party: and (ii) Such group must consist of not less than one-third of the members of such legislature party.
In the present case the first requirement was satisfied because Naik has made such a claim. The only question is whether the second requirement was fulfilled. the total number of members in the legislature party of the MGP (the original political party) was eighteen. In order to fulfil the requirements of paragraph 3 Naik's group should consist of not less than 6 members of the legislature party of the MGP. Naik has claimed that at the time of split on December 24, 1990 his group consisted of eight members whose signatures are contained in the declaration, a copy of which was filed with the reply dated February 13, 1991.
The Speaker has held that the split had not been proved because no intimation about the split has been given to him in accordance with rules 3 and 4 of the Disqualification rules. We find it difficult to endorse this view. Rule 3 requires the information in respect of matters specified in clauses (a) (b) and (c) of sub-rule (1) to be furnished in the prescribed form (Form 1) to the Speaker by the leader of the legislature party within 30 days after the first sitting of the House or where such legislature is formed after the first sitting, within 30 days after its formation. rule 4 relates to information to be furnished by every member to the Secretary of the Assembly in the prescribed form (Form III). In respect of a member who has taken his seat in the House before the date of commencement of the Disqualification Rules, the information is required to be furnished within 30 days from such date. In respect of a member who takes his seat in the House after the commencement of the Disqualification rules such information has to be furnished before making and subscribing an oath or affirmation under Article 188 of the Constitution and taking his seat in the House. rule 4 has no application in the present case because the stage for furnishing the required information had passed long back when the members made and subscribed to oath and affirmation after their election in 1989. Rule 3 also comes into play after the split and the failure on the part of the leader of the group that has been constituted as a result of the split does not mean that there has been no split. As to whether there was a split or not has to be determined by the Speaker on the basis of the material placed before him. In the present case the split was sought to be proved by the declaration dated December 24, 1990 whereby eight MLAs belonging to the MGP declared that they had constituted themselves into a group known as Maharashtrawadi Gomantak Party (Ravi Naik Group). A copy of the said declaration was submitted along with the reply filed by Naik on February 13, 1991 and the original declaration bearing the signatures of the eight MLAs was produced by the advocate for Naik during the course of the hearing before thee Speaker on February 13, 1991. The genuineness of the signatures on the said declaration was not disputed before the Speaker. One of the signatories of the declaration, namely, Dharma Chodankar, had written to the Speaker that his signatures were obtained forcibly. That may have a bearing on the number of members constituting the group. But the fact that a group was constituted is established by the said declaration." [Emphasis supplied] With respect, I express my whole hearted agreement with the reasoning. The ruling does not at all require re-consideration. The contention of the appellant is therefore rejected. I hold that the Speaker has not violated any of the constitutional mandates.
(II) Violation of principles of Natural Justice -------------------------------------------
41. Under this head, the argument of the appellant relates to two affidavits filed on 25.2.98 six on 4.3.98 and one on 10.3.98. The two affidavits filed on 25.2.98 were that of Narinder Singh and Markandeya Chand. They were presented when the arguments were proceeding. The same was objected to by the counsel who was appearing for the appellant before the Speaker on the ground that they had been filed after 9.2.98 which was the last day to produce evidence. In the copy of the proceedings dated 25.2.98, the following statement is found:
"Whether the above affidavits be placed on record and be read in evidence or not will be considered presently during arguments".
According to the appellant, the Speaker did not pass any order thereafter to take the affidavits on record but he relied on them in his order and thus violated the principles of Natural Justice as the appellant had no opportunity to controvert the averments in the affidavits.
42. In his order, the Speaker has stated as follows:
"When we resumed the hearing at 6.00 P.M. on 25.2.98 the respondents' counsel Shri A Kumar made a request that the presence of 6 MLAs who were in the division of the BSP on 21.10.97 be noted and the affidavits of Chaudhary Narendra Singh and Shri Markandeya Chand be read in evidence. These six MLAs were Sarvasri Munna Lal Maurya, Rajendra Singh Patel, Jai Narain Tewari, Ved Prakash, Shiv Ganesh Lodhi and Qasim Hasan. The names of all these MLAs are mentioned in Annexure I to the aforesaid affidavits.
Similarly, the petitioners also produced Sarvasri Haji Akbar Husain, Ram Ratan Yadav, Vibhuti Prasad Nishad, Shiv Charan Prajapati, Ram Kripal Singh, Chootey Lal Rajbhar and Matesh Chandra Sonkar MLAs and requested that their presence on the petitioners' side be also noted. The names of these persons also find place in Annexure I to the said affidavits.
The presence of all the adovementioned MLAs presented by both sides was accordingly noted.
So far as the affidavits of Chaudhary Narendra Singh and Markandeya Chand are concerned, the petitioners counsel strongly objected to the same on the ground that the respondents were given last opportunity of file affidavit by 9.2.1998 which date has expired and hence the affidavits should not be taken or record.
On being asked whether the petitioners would like to file reply to the said affidavit in case the same is placed on record, the petitioners' counsel Shri Umesh Chandra stated that he would not file any reply but would object to taking the same on record.
During the course of arguments Shri Umesh Chandra referred to some paragraphs of this affidavit also to contend that there was no division of the BSP.
(Underlining mine) I find that for determining the controversy completely and finally it is in the interest of justice to place the affidavits on record and particularly when the petitioners do not want to file any reply to the same.
Again in another place, it is stated as follows:
The various applications, pleadings and affidavits filed after the petition was amended on 5.12.97, have already been stated earlier in this order and they need not be repeated here. Reference to the relevant applications, pleadings and affidavits shall made where considered necessary. Suffice it to say that in order to finally and completely adjudicate upon the controversy, and in the interest of justice, and particularly keeping in view the serious consequences flowing from disqualification of a member of the Assembly. I have taken on record all the applications and affidavits filed even after 9.2.1998. Parties have been afforded sufficient opportunity to meet the case of each other.
43. In the S.L.P. a ground is raised that the averment in the order that the appellant's counsel said that he would not file any reply to the affidavits is factually incorrect.
But there is no denial whatever in the SLP of the averment that during the course of arguments Shri Umesh Chandra referred to some paragraphs of that affidavit also to contend that there was no division of the BSP. No. argument was also advanced before us challenging the correctness of that averment. When the appellant's counsel had himself relied on portions of the affidavits filed on 25.2.98, there is no substance in the contention that the Speaker had taken them on record behind the back of the appellant. There is also no substance in the contention that the appellant had no opportunity to controvert the contents of those affidavits. On the very same day (25.2.98) the appellant filed an application and affidavits of nine MLAs at 7.40 P.M. She could have then said whatever she wanted to say about the contents of the affidavits filed by the respondents. It is not the case of the appellant that Speaker did not permit her to file any affidavit in reply to the said affidavits of the respondents. the only objection to the reception of the affidavits in question was that it was filed after the expiry of the time granted earlier to file a list of members of BSP. The appellant was represented by practising lawyers who knew very well that the Speaker had ample powers to condone the delay in filing the affidavits. In the Proceedings of 25.2.98 it is stated towards the end that "learned counsel for the two sides had made their submissions on factual and legal aspects". It is not the case of the appellant that any argument with reference to the said affidavits was shut out. Moreover the contents of the affidavits filed on 25.2.98 are almost a repetition of the contents of the Additional Written Statement filed on 2.2.98 plus the two annexures containing the names of 26 members who formed the group of JBSP on 21.10.97 and 18 members who continued in the group till then besides a plea of split within split. I do not find any violation of the principles of Natural Justice in the Speaker's taking on record the two affidavits filed by the respondent on 25.2.98.
44. The other affidavits said to have been taken on record without notice to the appellant were filed on 4.3.98 and 10.3.98. According to the respondents those affidavits were filed in reply to the nine affidavits filed by the appellant on 25.2.98 at 7.40 P.M. According to them the appellant filed them without serving copies on the and they had to obtain copies from the office of the Speaker on 27.2.98. It is stated by the appellant that the affidavits filed on her behalf were presented before the Speaker in the course of arguments in the presence of counsel for the parties. The proceedings of the Speaker dated 25.2.98 do not make any reference to the said affidavits. The endorsement on the margin of the application of the appellant dated 25.2.98 and the affidavits filed therewith prove that they were filed in the office of the Secretary to the Speaker at 7.40 P.M. and on the same day, thee Speaker has made an endorsement in the margin directing the placing of the application and affidavits on record. Whatever it may be, it is not the case of the appellant that copies of those affidavits were served on the respondents or their counsel. There is no record to prove such service.
45. The Speaker has dealt with this matter in his order as follows:- "The petitioners themselves had filed 9 affidavits at 7.40 P.M. on 25.2.1998 while hearing on the petitions was going on. Copies of these affidavits were not served on respondents on 25.2.1998. Their counsel obtained it on 27.2.1998 i.e. after the orders were reserved on the case on 25.2.1998. The respondents filed 6 affidavits dated 25.2.1998 and 27.2.1998 by means of an application dated 4.3.1998 which specifically stated that these affidavits were being filed in reply to the said 9 affidavits. The affidavit of Shri Ram Ratan Yadav filed on 10.3.1998 is almost entirely the same as the affidavits filed by the petitioners on 25.2.1998.
One more fact needs to be stated at this stage.
Shri R.K. Chaudhary, petitioner, sent an application/letter dated 16.3.1998 asking for copies of the affidavits filed on behalf of the respondents after the order was reserved on 25.2.1998. The copies of these affidavits were sent to Shri R.K. Chaudhary along with a letter dated 17.3.1998 in which he was informed that copies of the affidavits filed by the petitioner on 25.2.1998 were received by the respondents counsel on 27.2.1998 and the affidavits filed alongwith the application dated 4.3.1998 were filed in reply thereof. Along with the said letter, a copy of the affidavit filed by Shri Ram Ratan Yadav dated 10.3.98 was also sent to Shri R.K. Chaudhary. It was specifically mentioned in the letter of 17.3.98 that in case he wanted to submit anything he may appear before me on 19.3.98 at 1.00 P.M. Information of this date was sent to the respondents also. On 19.3.98 the respondents Chaudhary Narendra Singh and Markandeya Chand appeared along with their counsel Shri A Kumar and Sri N.K. Pandey. On behalf of the petitioners Shri Daya Ram Pal, President of the U.P. BSP handed over a letter of Shri R.K. Chaudhary that the purpose of the letter dated 17.3.98 was not clear and as such the same be made clear. In reply to this letter of Shri R.K. Chaudhary, a letter was sent to him on 19.3.98 informing him that if he wanted to file any reply to the said affidavit or submit anything in his favour or to file anything, he may do the same on that date i.e. 19.3.98. Nobody appeared thereafter on behalf of the petitioner Shri R.K. Chaudhary nor filed any document. The aforesaid letters have been placed on the records. In my view, in the particular circumstances of the case no prejudice has been caused to any of the parties by admitting the aforesaid affidavits on record".
46. Again the Speaker has stated thus in his order:- "Since the facts stated about the split and threat etc. in the affidavits of Sri Vans Narain Singh and others filed on 2.2.1998 and the affidavits dated 25.2.1998 of Shri Markandeya Chand and Chaudhary Narendra Singh, (including the allegations of split within split) and the facts stated in the six affidavits filed through the application dated 4.3.1998 have not been controverted despite opportunity having been given to the petitioner Shri R.K. Chaudhary (who was also looking after the petitions of Ms Mayawati), I prefer to place reliance on them and hold that there was a split in the Bahujan Samaj Party on 21.10.1997 and a faction had risen as a result of this split in the BSP and a group of BSP MLAs consisting of 26 BSP MLAs (whose names are mentioned in Annexure I to the affidavits of Chaudhary Narendra Singh and Shri Markandeya Chand, filed on 25.2.1998) was constituted on 21.10.97 itself representing the faction which thus arose and that this group known as Jantantrik BSP".
47. An objection is taken before us in the course of arguments that R K Chaudhary never represented the appellant in the proceedings before the speaker and notice to him will not amount to notice to the appellant. No such ground has been taken in the S.L.P. There is no denial in the S.L.P. of the averment found in the order of the Speaker that R.K. Chaudhary was looking after the petitions of the appellant.
Without challenging the correctness of the statement in the S.L.P. it is not open to counsel for the appellant to raise the contention for thee first time in the course of his arguments. In the order of the Speaker dated 7.11.97 it is stated that R.K. Chaudhary MLA and D.R. Verma, Ex Chairman Legislative Assembly came and produced two letters of the appellant before the Speaker which shows that R.K. Chaudhary did represent the appellant in these proceedings. In fact he filed petitions for disqualification only on 11.11.97 and those petitions were nothing but repetition of the petitions filed by the appellant. In the circumstances it is not possible for this Court to say that the averment made by the Speaker in his order that R.K. Chaudhary was looking after the petitions filed by the appellant is not correct.
48. While I am unable to accept the factual contention that the appellant had no opportunity to controvert the affidavits filed before the Speaker on 25.2.98, 4.3.98 and 10.3.98, I am of the opinion that even so there is no violation of the principles of natural justice. This court has in The Chairman, Board of Mining Examination and Chief Inspector of Mines of Mining Examination and Chief Inspector of Mines and Another versus Ramjee (1977) 2 S.C.C. 256 discussed the principles of natural justice and said:
"Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of.
Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt - that is the conscience of the matter" "But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity" "These general observations must be tested on the concrete facts of each case and every minuscule violation does not spell illegality. If the totality of circumstances satisfies the court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures".
49. It has not been proved by the appellant that there is a failure of substantial justice. In the absence of bias and malafides, the contention that the order of the Speaker is vitiated by violation of principles of natural justice has to fail.
(III) PERVERSITY
50. One of the contentions urged under this head is that speaker has by unduly delaying the proceedings acted perversely. Though learned senior counsel stated expressly in the course of his arguments that he is not alleging bias or personal mala fides against the Speaker, in the written submissions given by him, it is stated as follows:
"The Hon'ble Speaker by not deciding the petitioners expeditiously and by allowing the BJP time to garner support for the purposes of the defence of the respondents under paragraph 3 has acted contrary to the constitutional mandate".
The said submission is not permissible in view of the statement expressly made and referred to above. In any event, merely because there is a delay in concluding the hearing, the order cannot be said to be perverse. The Speaker has framed the question properly as to whether a split as alleged by the respondents had taken place on 21.10.97 and whether it was supported by acceptable evidence.
This Court in exercise of its power of limited judicial review has only to see whether the findings arrived at by the Speaker are perverse in the sense in which the expression "perversity" has been understood by this court in several decisions. I am unable to accept that as a matter of law, delay in the completion of proceedings would by itself vitiate the order passed by him.
51. But I wish to add that it is absolutely necessary for every Speaker to fix a time schedule in the relevant rules for disposal of the proceedings for disqualification of MLAs or MPs. In my opinion all such proceedings shall be concluded and orders should be passed within a period of three weeks from the date on which the petitions are taken on file.
52. Before considering the relevant findings of the Speaker which are said to be perverse by the appellant, it is better to refer to the rulings which define perversity.
53. As pointed out already in Kihoto Hollahan versus Zachillhu and others 1992 Supp. (2) S.C.C. 651 the constitution Bench has laid down that the power of judicial review vis-a-vis the order of the speaker under paragraph 6(1) of the Tenth schedule is confined to jurisdictional errors only based on violation of constitutional mandate, mala fides, non compliance of rules of natural justice and perversity.
54. In Associated Provincial Picture Houses, Ltd. Versus Wednesbury Corporation 1947 Vol 2 All England Reports 680 Lord Greene, M.R. dealt with a case where the proprietors of a Cinema theatre sought a declaration that a condition imposed by the Wednesbury Corporation on grant of permission for Sunday performances to be held in that cinema was ultra vires. The Court dismissed the action. The relevant passage in the judgment reads as follows:
"In the present case we have heard a great deal about the meaning
