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CASE NO.:

Appeal (civil) 765 of 2007

PETITIONER:

Rajendra Singh Rana and Ors.

RESPONDENT:

Swami Prasad Maurya and Ors.

DATE OF JUDGMENT: 14/02/2007

BENCH:

K.G.Balakrishnan CJI & H.K.Sema & AR.Lakshmanan & P.K.Balasubramanyan &

D.K. Jain

JUDGMENT:

JUDGMENT

(Arising out of SLP(C) No. 4664 of 2006) and Civil Appeal Nos. 766, 767,

768, 769, 770 and 771 of 2007 (Arising out of S.L.P.(C) Nos. 4669, 4671,

4677, 6323, 10497 and 10498 of 2006)

DELIVERED BY:

P.K. Balasubramanyan, J.

P.K. Balasubramanyan, J.

Leave granted.

The elections for the constitution of the 14th Legislative Assembly of the

State of Uttar Pradesh were held in February 2002. Since, none of the

political parties secured the requisite majority, a coalition Government

was formed, headed by Ms. Mayawati, leader of the Bahujan Samaj Party

(hereinafter referred to as, 'B.S.P.'). B.S.P was admittedly a recognised

national party. The ministry was formed in May, 2002. On 25.8.2003, the

cabinet is said to have taken a unanimous decision for recommending the

dissolution of the Assembly. Based on it, on 26.8.2003, Ms. Mayawati

submitted the resignation of her cabinet. Apparently, after the cabinet

decision to recommend the dissolution of the Assembly and before Ms.

Mayawati cabinet actually resigned, the leader of the Samajwadi Party

staked his claim before the Governor for forming a Government. On

27.8.2003, 13 Members of the Legislative Assembly (hereinafter referred to

as, 'M.L.As.') elected to the Assembly on tickets of B.S.P., met the

Governor and requested him to invite the leader of the Samajwadi Party to

form the Government. Originally, 8 M.L.As. had met the Governor and 5

others joined them later in the day, making up the 13.

The Governor did not accept the recommendation of Mayawati cabinet for

dissolution of the Assembly. On 29.8.2003, the Governor invited the leader

of the Samajwadi Party, Mr. Mulayam Singh Yadav to form the Government and

gave him a time of two weeks to prove his majority in the Assembly. On

4.9.2003, Mr. Swami Prasad Maurya, leader of the Legislature B.S.P filed a

petition before the Speaker in terms of Article 191 read with the Tenth

Schedule to the Constitution of India, praying that the 13 B.S.P. M.L.As.

who had proclaimed support to Mulayam Singh Yadav before the Governor on

27.8.2003, be disqualified in terms of paragraph 2 of the Tenth Schedule to

the Constitution on the basis that they had voluntarily given up their

membership of B.S.P., their original political party. On 05.09.2003, a

caveat was also filed on behalf of the B.S.P. before the Speaker of the

Legislative Assembly requesting the Speaker to hear the representative of

B.S.P. in case any claim of split is made by the members who had left the

Party. On 06.09.2003, a request was made by 37 M.L.As., said to be on

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behalf of 40 M.L.As. elected on B.S.P. tickets, requesting Page 0999 the

Speaker to recognise a split in B.S.P. on the basis that one third of the

Members of the B.S.P. legislature party consisting of 109 legislators, had

in a body separated from the Party pursuant to a meeting held in the

M.L.A.'s hostel, Darulshafa, Lucknow on 26.8.2003. The Speaker took up the

said application for recognition of a split, the same evening. He verified

that the 37 Members who had signed the application presented to him had in

fact signed it since they were physically present before him. Overruling

the objections of Maurya, the leader of the legislature B.S.P., the Speaker

passed an order accepting the split in B.S.P. on the arithmetic that 37 out

of 109 comprises one third of the Members of the legislature Party. This

group came to be known as the Lok Tantrik Bahujan Dal. But, the said Dal

was short lived. For, the Speaker, a little later, on 6.9.2003 itself,

accepted that the said Dal had merged with the Samajwadi Party. It is

relevant to note that in the order dated 6.9.2003, the Speaker did not

decide the application made by B.S.P. seeking disqualification of 13 of its

M.L.As. who were part of the 37 that appeared before the Speaker and

postponed the decision on that application. It appears that on 8.9.2003,

three more M.L.As. appeared before the Speaker stating that they supported

the 37 M.L.As. who had appeared before him on 6.9.2003 and were part of

that group. The Speaker accepted their claim as well.

On 29.9.2003, Writ Petition No. 5085 of 2003 was filed in the High Court of

Judicature at Allahabad before the Lucknow Bench challenging the said order

of the Speaker. On 1.10.2003, it came up before a Division Bench of the

High Court, and it is seen from the Order Sheet maintained by the High

Court that the Writ Petition was directed to be listed on 8.10.2003 for

further hearing. It was adjourned to 13.10.2003 and then again to

22.10.2003 and to 29.10.2003 and further to 5.11.2003. It is recorded in

the Order Sheet that on 5.11.2003, learned Counsel for the writ petitioner

was heard in detail. No order was passed, but the matter was adjourned to

the next day at the request of counsel, who was apparently representing the

Advocate General of the State. From 6.11.2003, the matter was adjourned to

10.11.2003 and on the request of the learned Advocate General, it was

directed to be listed on 14.11.2003. The same day, the Speaker before whom

the petition filed by the writ petitioner Maurya seeking disqualification

of 13 of the members of the B.S.P. was pending, after noticing what he had

done earlier on 6.9.2003 and 8.9.2003, passed an order adjourning the

petition seeking disqualification, on the ground that it would be in the

interests of justice to await the decision of the High Court in the pending

Writ Petition since the decision therein on some of the issues, would be

relevant for his consideration. It was therefore ordered that the petition

for disqualification may be placed before him for disposal and necessary

action after the High Court had decided the Writ Petition.

In the High Court, the Writ Petition had a chequered career. On

14.12.2003, when it came up, it was directed to be listed the next week

before the appropriate Bench. On 16.4.2004, it was directed to be put up on

22.4.2004. On 22.4.2004, it was dismissed for default with an observation

that neither any counsel on behalf of the writ petitioner Page 1000 nor on

behalf of the Speaker was present. It may be noted that on 5.11.2003, the

High Court had recorded that it had heard counsel for the writ petitioner

in full and the adjournment for further hearing was at the behest of the

Advocate General. Even then, on 22.4.2004, the High Court chose to dismiss

the Writ Petition for default on the ground that counsel on both sides were

not present. An application for restoration was filed on 27.4.2004 and this

application was kept pending for about 8 months until on 20.12.2004, an

order was passed recalling the order dated 22.4.2004 dismissing the Writ

Petition for default and restoring it to its original number with a further

direction to list the Writ Petition before the appropriate Bench on

4.1.2005. On 4.1.2005, the Writ Petition was adjourned at the request of

the Advocate General to the next day. On 5.1.2005, it was noticed by the

Bench that the matter appeared to have been heard in detail at the

admission stage and the Writ Petition had neither been admitted nor any

notice ordered to the respondents and counsel for the writ petitioner was

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again heard on the question of admission and the application for interim

relief he had filed and it was recorded that he had concluded his arguments

with the further direction to put up the Writ Petition the next day. On

6.1.2005, it was recorded that counsel for the writ petitioner did not

press for interim relief at that stage and hence the application for

interim relief was being rejected.

On 6.1.2005, the Writ Petition was admitted after hearing counsel for

the writ petitioner and some counsel who appeared for the respondents.

Notices were ordered to be issued to the opposite parties, the group of

M.L.As. who had moved the Speaker for recognition of a split. After some

further postings, on 18.2.2005, orders were passed regarding service of

notice and the Writ Petition was directed to be posted for hearing on

10.3.2005. On 10.3.2005, finding that there was some attempt at evasion of

notices, the court ordered substituted service of notices and directed the

listing of the Writ Petition on 11.4.2005. On 11.4.2005, service of notice

was declared sufficient and the matter was directed to be posted on

2.5.2005 for hearing. After a number of adjournments mainly at the instance

of the respondents in the Writ Petition, arguments were commenced. On

12.5.2005, counsel for the writ petitioner concluded his arguments and the

case was further adjourned to 25.5.2005 for further hearing after taking

certain counter affidavits on record. Ultimately, the argument of one of

the counsel for the respondents was started and the matter was adjourned to

6.7.2005 for completion of his arguments and for arguments by other counsel

for the respondents in the Writ Petition.

Meanwhile, on 7.9.2005, the Speaker passed an order rejecting the

petition filed by Maurya for disqualification of 13 M.L.As. of B.S.P. It

may be noted that the Speaker had earlier adjourned that application for

being taken up after the Writ Petition was decided. Meanwhile, the

arguments went on in the High Court and the Writ Petition was directed to

be put up on 17.8.2005 for further arguments. The matter was adjourned to

the next day and again to subsequent dates.

On 8.9.2005, an application was made on behalf of the respondents

seeking dismissal of the Writ Petition in view of the order of the Page

1001 Speaker dated 7.9.2005 dismissing the application seeking

disqualification of 13 M.L.As. filed by the writ petitioner. The said

application was dismissed the same day. On 9.9.2005, arguments were heard

and the matter was adjourned for further hearing.

On 21.10.2005, an application was made on behalf of the writ petitioner

praying for an amendment of the Writ Petition. It was directed to be listed

granting time to the respondents in the Writ Petition to file objections.

On 22.11.2005, the Order Sheet records an order by one of the judges as

follows:

The matter was listed today only for consideration and disposal of the

amendment application together with application for further hearing and by

4.00 PM arguments with respect to amendment application could be concluded.

As indicated in the order passed on the application brother M.A. Khan (J)

took out a typed and signed 'order' rejecting the application for

amendment. Like previous order, brother Hon'ble M.A. Khan again took out a

duly typed and signed judgment/ his opinion and directed the bench

Secretary to place the same on record as his "judgment" in the main writ

petition. The draft of the said judgment was also not circulated to me nor

was I ever been consulted by him. It is further pointed out that brother

Hon'ble M.A. Khan (J) did not indicate at any time that he had already

written out the judgment. Further at no point of time, I had indicated to

brother M.A. Khan (J) that the judgment in the writ petition may be

prepared by him. It goes without saying that neither the orders passed on

the application nor the so called judgment on the merits of the writ

petition have been dictated in the open court by brother Hon'ble M.A.

Khan(J).

Apparently, in view of these happenings, the learned Chief Justice

constituted a Full Bench for hearing the Writ Petition. The amendment

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prayed for was allowed and the Writ Petition ultimately heard finally and

disposed of by the judgment under appeal. As per the judgment under appeal,

the Writ Petition was dismissed by the learned Chief Justice while the

other two learned Judges quashed the orders of the Speaker and directed the

Speaker to reconsider the matter with particular reference to the petition

for disqualification of 13 M.L.As. filed by the writ petitioner and pass

appropriate orders. Feeling aggrieved, these appeals have been filed.

Whatever may be our ultimate decision on the merits of the case, we

must express our unhappiness at the tardy manner in which a matter of some

consequence and constitutional propriety was dealt with by the High Court.

More promptitude was expected of that court and it should have ensured that

the unfortunates happenings (from the point of view of just and due

administration of justice) were avoided. Though we are normally reluctant

to comment on the happenings in the High Court, we are constrained to make

the above observations to emphasis the need to ensure that no room is given

for criticism of the manner of working of the institution.

The respondents in the Writ Petition, the M.L.As. constituting 37

B.S.P. members who left the party, are the appellants in all the appeals

except the appeal arising out of Special Leave Petition (Civil) No. 6323 of

2006 filed by the Page 1002 writ petitioner - Maurya. Whereas, the

respondents in the Writ Petition challenge the decision of the majority of

the Bench remitting the matter to the Speaker, the writ petitioner, in his

appeal challenges the order of remand made by the majority on a plea that

on the pleadings and the materials available, the High Court ought to have

straightaway allowed the petition filed by the writ petitioner for

disqualification of the 13 M.L.As. According to him, a remand was

unnecessary and considering the circumstances, a final order ought to have

been passed by the High Court.

Article 191 of the Constitution of India deals with the

disqualification for membership of legislative assemblies just like Article

102 deals with disqualification for membership to the Houses of Parliament.

Article 102 and Article 191 came to be amended by the Constitution (Fifty-

second Amendment) Act, 1985 with effect from 1.3.1985 providing that a

person shall be disqualified for being a member of either Houses of

Parliament or of Legislative Assembly or Legislative Council of a State if

he is so disqualified under the Tenth Schedule to the Constitution of

India. The Tenth Schedule was also added containing provisions as to

disqualification on ground of defection. The constitutional validity of

this amendment was challenged before this Court in Kihoto Hollohan v.

Zachillhu and Ors. This Court upheld the validity of the amendment subject

to the finding that paragraph 7 of the Tenth Schedule to the Constitution

of India required ratification in terms of Article 368(2) of the

Constitution of India and it had not come into force, so that there was no

need to pronounce on the validity of paragraph 7 to the extent it precluded

a judicial review of the decision of the Speaker. But it held that judicial

review could not be kept out, though such review might not be of a wide

nature. We are proceeding to examine the relevant aspects in the light of

that decision.

The application by writ petitioner - Maurya to the Speaker, in the

present case, was made under paragraph 2 of the Tenth Schedule to the

Constitution on the ground that the 13 Members who met the Governor on

27.8.2003 had voluntarily given up their membership of B.S.P., their

original political party as defined in the Tenth Schedule. The claim on

behalf of the M.L.As. sought to be disqualified and those who claimed to

have gone out with them from B.S.P. is that the disqualification at the

relevant time is subject to the provisions of paragraphs 3, 4 and 5 of the

Tenth Schedule and since there has been a split in B.S.P in terms of

paragraph 3 of the Tenth Schedule and a subsequent merger of the 40 M.L.As.

with the Samajwadi Party in terms of paragraph 4 of the Tenth Schedule,

they could not be held to be disqualified on the ground of defection in

terms of paragraph 2(1)(a) of the Tenth Schedule. The Speaker, as noticed,

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did not pass any order on the application for disqualification of 13

M.L.As. made by Maurya, the leader of the B.S.P. Legislature Party in terms

of paragraph 2 of the Tenth Schedule but proceeded to pass an order on the

petition filed by 37 M.L.As. before him, claiming that there has been a

split in B.S.P. and they constituted one third of the Legislature Party

which had 109 members. When he passed the order Page 1003 on the claim of

the M.L.As. who had left B.S.P., the then Speaker postponed the decision on

the petition for disqualification filed by Maurya, later adjourned it to

await the decision in the Writ Petition, but still later, the successor

Speaker went back on that order and proceeded to dismiss it after

entertaining an alleged preliminary objection even while the Writ Petition

was still pending and it was being argued, on the ground that he had

already recognised the split.

It was thereafter that the writ petitioner sought for an amendment of

the Writ Petition which was subsequently allowed.

We will now revert to the action that triggered the controversy. Eight

of the M.L.As. of B.S.P. followed by five other members of B.S.P. handed

over identically worded letters to the Governor on 27.8.2003. A running

translation of the letters is as under:

We under mentioned M.L.As. whose signatures are marked below humbly request

you that Shri Mulayam Singh Yadav Ji be invited to form Government because

the public of Uttar Pradesh neither want election nor want President Rule.

These members were the members who belonged to B.S.P. and they were

requesting the Governor to invite the leader of the opposition to form the

Government. It is based on this action, that Maurya, the leader of the

Legislature B.S.P., had filed the petition before the Speaker seeking

disqualification of these 13 members on the ground that they had

voluntarily left B.S.P., recognised by the Election Commission as a

national party. It was while this proceeding was pending that on 6.9.2003,

an application for recognition of a split was moved by the 37 M.L.As.

before the Speaker. Since the leader of B.S.P. had filed a caveat before

the Speaker, the Speaker chose to hear the caveator while passing the

order. Considering the nature of the controversy involved, it appears to be

proper to quote the said representation or application made by the 37

M.L.As. before the Speaker. The running translation of the same reads:

We, the following Members of the Legislative Assembly, are notified as

Members belonging to Bahujan Samaj Party. There is dissatisfaction

prevalent among the members of BSP on account of dictatorial approach,

wrong policies and misbehavior towards the Members as practiced by the BSP

Leader Km. Mayawati. Being aggrieved on account of the aforesaid reasons,

Members, office bearers and workers of the Bahujan Samaj Party held a

meeting in Darulsafa on 26.08.2003. All present unanimously stated that Km.

Mayawati is occupied with fulfilment of her personal interests alone at the

cost of interests of the State of U.P. and society.

Hence, it was unanimously resolved that the Bahujan Samaj Party be split up

and a new faction in the name of Loktantrik Bahujan Dal be constituted

under the Leadership of Shri Rajendra Singh Rana, Member Legislative

Assembly. We, the undersigned Members of Legislative Assembly have

constituted a separate group which represents the new faction arising out

of the split. Our number is more than one third of the total number of

Members of the erstwhile Bahujan Samaj Party of the Legislative Assembly.

Page 1004

It is, therefore, requested that the aforesaid Loktantrik Bahujan Dal be

recognised as a separate group within the Legislative Assembly and a

separate arrangement for their seating inside the Assembly be made.

It was signed by 37 M.L.As.

It is on this application that the Speaker passed an order the same

evening and it is that order that is the subject matter of challenge in the

Writ Petition filed before the High Court. The order of the Speaker records

that as per the contents of the application, a meeting of members, office

bearers and Members of Legislative Assembly belonging to B.S.P. was held on

26.8.2003 in the Darulshafa and in this meeting, it was unanimously

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resolved that a new faction in the name of Loktantrik Bahujan Dal under the

leadership of Rajendra Singh Rana be constituted. The Speaker proceeded to

reason that the number of members who have constituted the group are seen

to be 37 out of 109 and that would constitute one-third of the total number

of Legislators belonging to B.S.P. In view of the objections raised by

Maurya, who had filed the caveat before him, the Speaker verified whether

37 members had signed the representation or application. Since they were

present before him and were identified, he proceeded on the footing that 37

M.L.As. of B.S.P. had appeared before him with the claim. The Speaker

noticed the contention of the caveator that the burden of proving any split

in the original political party lay on the 37 M.L.As. and that unless they

establish a split in the original political party, they could not resort to

paragraph 3 of the Tenth Schedule to the Constitution and claim that there

has been a split in the political Party and consequently they have not

incurred disqualification under paragraph 2 of the Tenth Schedule. Further,

overruling the contention of the caveator that the decision relating to the

split could be taken only by the Election Commission and overruling the

contention that the original 13 members who had left the Party or

voluntarily given up their membership of the Party did not constitute one-

third of the total number of the Legislators belonging to B.S.P. and hence

they are disqualified, the Speaker proceeded to say that the first

condition to satisfy the requirement of paragraph 3 of the Tenth Schedule

was only that the members must have made a claim that the original

legislature Party had split and they should show that as a consequence, the

legislature Party has also split and that the split group had one-third of

the members of the legislature Party. Therefore, the Speaker taking note of

the one-third legislators before him proceeded on the basis that it would

be sufficient if a claim is made of a split in the original political

Party. The Speaker formulated the position thus:

Under para 3 following conditions have to be fulfilled:

1. The making of a claim by any Member of a House that he and some other

members of his legislature party have constituted a group representing a

faction which has arisen as a consequence of split in his original

political party.

2. The newly constituted group has at least one third of the total number

of members of such legislature party.

Page 1005

If in a case the aforesaid two conditions are fulfilled, the person making

such a claim and the other members will not be disqualified from the

membership of the Legislative Assembly on the grounds mentioned in para 2

of the 10th Schedule.

The Speaker also overruled the argument that only 13 M.L.As. had originally

quit the original political party and they should be disqualified and the

others subsequently joining them would not improve the position. The

Speaker proceeded to observe that he had to decide the question of

disqualification of the 13 M.L.As. raised by Maurya functioning as a

Tribunal and he would be taking a decision thereon at the appropriate time.

It was thus that the claim of 37 members of a split, was recognised by the

Speaker. The Speaker thus did not decide whether there was a split in the

original political party, even prima facie.

The same day, the Speaker also entertained another application from the

37 M.L.As. and ordered that he was recognising the merger of the Lok

Tantrik Bahujan Dal in the Samajwadi Party.

The Speaker had relied on an observation in Ravi S. Naik v. Union of

India to justify the acceptance of the position adopted by the 37 M.L.As.

for recognition of a split that it was enough if they made a claim of split

in the original political party. In paragraph 36 of that judgment, after

setting down the two requirements as:

(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.

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This Court observed:

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.

But the Speaker failed to notice the following sentence in paragraph 38 of

the same judgment wherein it was stated:

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.

Thus, there was no finding by the Speaker that there was a split in the

original political party, a condition for application of paragraph 3 of the

Tenth Schedule.

Now we may notice the position adopted by the High Court in the

judgment under Appeal while dealing with the Writ Petition filed by Maurya

challenging the order of the Speaker. The learned Chief Justice took the

view that the Speaker was justified in finding a split on the basis of a

claim of split in the original political party and one-third members of the

legislature party separating by taking into account all events upto the

time of his taking a Page 1006 decision on the question of split. The

learned Chief Justice held that the snowballing effect of a split could be

taken note of and that the Speaker had not committed any illegality in not

considering and deciding the petition filed by Maurya seeking

disqualification of 13 M.L.As. in the first instance and in keeping it

pending. He thus upheld the decision of the Speaker. But the other two

learned judges, though they gave separate reasons, basically took the view

that the Speaker was in error in not deciding the application seeking

disqualification of the 13 members first and in proceeding to decide the

application for recognition of a split made by the 37 legislators before

him. Since the proceeding arose out of a petition seeking a

disqualification in terms of paragraph 2 of the Tenth Schedule to the

Constitution, in terms of paragraph 6 of the Tenth Schedule, a decision on

the claim for disqualification could not be kept by, even while recognising

a split. They therefore quashed the order of the Speaker and directed the

Speaker to reconsider the question of defection raised by the writ

petitioner Maurya, in the light of the stand adopted by some of the

M.L.As. before the Speaker that there has been a split in terms of

paragraph 3 of the Tenth Schedule and so they have not incurred the

disqualification in terms of paragraph 2 of the Tenth Schedule. This

majority view and the interference with the order of the Speaker is

challenged by the various respondents in the Writ Petition forming the

group of 37. The writ petitioner himself has challenged that part of the

order which purports to remand the proceeding to the Speaker by taking up

the position that on the materials, the High Court ought to have

straightaway held that the defence under paragraph 3 of the Tenth Schedule

to the Constitution has not been made out by the 37 members of B.S.P. and

that the 13 of them in the first instance and the balance 24 in the second

instance stood disqualified in terms of paragraph 2(1)(a) of the Tenth

Schedule to the Constitution.

Elaborate arguments have been raised before us on the interpretation of

the Tenth Schedule, the content of the various paragraphs and on the facts

of the present case. Based on the arguments it is first necessary to deal

with the scope and content of the Tenth Schedule in the light of the object

with which it was enacted.

The Constitution (Fifty-Second Amendment) Act, 1985 amended Articles

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 Kihoto

Hollohan (supra) except as regards paragraph 7 thereof, which was held to

require ratification in terms of Article 368(2) of the Constitution. It is

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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 Page 1007 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 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 Kihoto Hollohan (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.

Learned Counsel for the writ petitioner raised an interesting argument.

He submitted that the Speaker in terms of paragraph 6 of the Tenth Schedule

was called upon to decide the question of disqualification and only to a

decision by him on such a question, that the qualified finality in terms of

paragraph 6(1) got attached and not to a decision independently taken,

purporting to recognise a split. He pointed out that in this case, the

Speaker had not decided the petition for disqualification filed against the

13 M.L.As., and the Speaker had only proceeded to decide the application

made by 37 members subsequently for recognising them as a separate group on

the ground that they had split from the original B.S.P. in terms of

paragraph 3 of the Tenth Schedule. He submitted that no such separate

decision was contemplated in a proceeding under the Tenth Schedule since

the claim of split was only in the nature of a defence to a claim for

disqualification on the ground of defection and it was only while deciding

the question of defection that the Speaker could adjudicate on the question

whether a claim of split has been established. When an independent decision

is purported to be taken by the Speaker on the question of split alone, the

same was a decision outside the Tenth Schedule to the Constitution and

consequently, the decision of the Speaker was open to challenge before the

High Court just like the decision of any other authority within the

accepted parameters of Articles 226 and 227 of the Constitution. In other

words, according to him, the qualified finality conferred by paragraph 6(1)

of the Tenth Schedule was not available to the order of the Speaker in this

case.

On behalf of the 37 M.L.As., it is contended that it is not correct to

describe paragraphs 3 and 4 of the Tenth Schedule merely as defences to

paragraph 2 and the allegation of defection, that paragraphs 3 and 4 confer

independent power on the speaker to decide a claim made under those

paragraphs. It is submitted that reliance placed on paragraph 6 and the

contention that a question of disqualification on the ground of defection

must arise, before the Speaker could decide as a defence or answer, the

claim of split or the claim of merger was not justified. Whatever be the

decisions that were taken by the Speaker in terms of paragraph 3, paragraph

4 or paragraph 2 of the Tenth Schedule, enjoyed the qualified immunity as

provided in paragraph 6 of the Tenth Schedule.

Page 1008

In the context of the introduction of sub-Article (2) of Article 102

and Article 191 of the Constitution, a proceeding under the Tenth Schedule

to the Constitution is one to decide whether a Member has become

disqualified to hold his position as a Member of the Parliament or of the

Assembly on the ground of defection. The Tenth Schedule cannot be read or

construed independent of Articles 102 and 191 of the Constitution and the

object of those Articles. A defection is added as a disqualification and

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the Tenth Schedule contains the provisions as to disqualification on the

ground of defection. A proceeding under the Tenth Schedule gets started

before the Speaker only on a complaint being made that certain persons

belonging to a political party had incurred disqualification on the ground

of defection. To meet the claim so raised, the Members of the Parliament or

Assembly against whom the proceedings are initiated have the right to show

that there has been a split in the original political party and they form

one-third of the Members of the legislature of that party, or that the

party has merged with another political party and hence paragraph 2 is not

attracted. On the scheme of Articles 102 and 191 and the Tenth Schedule,

the determination of the question of split or merger cannot be divorced

from the motion before the Speaker seeking a disqualification of a member

or members concerned. It is therefore not possible to accede to the

argument that under the Tenth Schedule to the Constitution, the Speaker has

an independent power to decide that there has been a split or merger of a

political party as contemplated by paragraphs 3 and 4 of the Tenth Schedule

to the Constitution. The power to recognise a separate group in Parliament

or Assembly may rest with the Speaker on the basis of the Rules of Business

of the House. But that is different from saying that the power is available

to him under the Tenth Schedule to the Constitution independent of a claim

being determined by him that a member or a number of members had incurred

disqualification by defection. To that extent, the decision of the Speaker

in the case on hand cannot be considered to be an order in terms of the

Tenth Schedule to the Constitution. The Speaker has failed to decide the

question, he was called upon to decide, by postponing a decision thereon.

There is therefore some merit in the contention of the learned Counsel for

the B.S.P. that the order of the Speaker may not enjoy the full immunity in

terms of paragraph 6(1) of the Tenth Schedule to the Constitution and that

even if it did, the power of judicial review recognised in the court in

Kihoto Hollohan (supra) is sufficient to warrant interference with the

order in question.

In a sense, this aspect may not be of a great importance in this case

since going by the stand adopted on behalf of the 37 M.L.As., the Speaker

was justified in keeping the petition seeking disqualification of 13

M.L.As. pending, even while he proceeded to accept a case of split in the

B.S.P. The question really is whether the Speaker was justified in doing

so. As we have indicated above, the whole proceeding under the Tenth

Schedule to the Constitution is initiated or gets initiated as a part of

disqualification of a member of the House. That disqualification is by way

of defection. The rules prescribed by various legislatures including the

U.P. legislature contemplate the making of an application to the Speaker

when there is a Page 1009 complaint that some member or members have

voluntarily given up his membership or their memberships in the party. It

is only then that in terms of the Tenth Schedule, the Speaker is called

upon to decide the question of disqualification raised before him in the

context of paragraph 6 of the Tenth Schedule. Independent of a claim that

someone has to be disqualified, the scheme of the Tenth Schedule or the

rules made thereunder, do not contemplate the Speaker embarking upon an

independent enquiry as to whether there has been a split in a political

party or there has been a merger. Therefore, in the context of Articles 102

and 191 and the scheme of the Tenth Schedule to the Constitution, we have

no hesitation in holding that the Speaker acts under the Tenth Schedule

only on a claim of disqualification being made before him in terms of

paragraph 2 of the Tenth Schedule.

The Speaker, as clarified in Kihoto Hollohan (supra), has necessarily

to decide that question of disqualification as a Tribunal. In the context

of such a claim against a member to disqualify him, that member, in

addition to a plea that he had not voluntarily given up his membership of

the Party or defied the whip issued to him, has also the right to show that

there was a split in the original political party that other legislators

have also come out of the legislature party as a consequence of that split,

that they together constituted one-third of the total number of legislators

elected on the tickets of that party. He has also the right to take up a

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plea that there has been a merger of his party with another party in terms

of paragraph 4 of the Tenth Schedule. Call it a defence or whatever, a

claim under paragraph 3 as it existed prior to its deletion or under

paragraph 4 of the Tenth Schedule, are really answers to a prayer for

disqualifying the member from the legislature on the ground of defection.

Therefore, in a case where a Speaker is moved by a legislature party or the

leader of a legislature party to declare certain persons disqualified on

the ground that they have defected, it is certainly open to them to plead

that they are not guilty of defection in view of the fact that there has

been a split in the original political party and they constitute the

requisite number of legislators or that there has been a merger. In that

context, the Speaker cannot say that he will first decide whether there has

been a split or merger as an authority and thereafter decide the question

whether disqualification has been incurred by the members, by way of a

judicial adjudication sitting as a Tribunal. It is part and parcel of his

jurisdiction as a Tribunal while considering a claim for disqualification

of a member or members to decide that question not only in the context of

the plea raised by the complainant but also in the context of the pleas

raised by those who are sought to be disqualified that they have not

incurred disqualification in view of a split in the party or in view of a

merger.

The decision of a Full Bench of the Punjab & Haryana High Court in

Prakash Singh Badal v. Union of India and Ors. was relied upon to contend

that the Speaker gets jurisdiction to render a decision in terms of the

Tenth Schedule to the Constitution of India only when in terms Page 1010 of

paragraph 6 thereof a question of disqualification arose before him. The

Full Bench by a majority held:

Under, para. 6, the Speaker would have the jurisdiction in this matter only

if any question arises as to whether a member of the House has become

subject to disqualification under the said Schedule and the same has been

referred to him for decision. The purpose of requirement of a reference

obviously is that even when a question as to the disqualification of a

member arises, the Speaker is debarred from taking suo motu cognizance and

he would be seized of the matter only when the question is referred to him

by any interested person. The Speaker has not been clothed with a suo motu

power for the obvious reason that he is supposed to be a non-party man and

has been entrusted with the jurisdiction to act judicially and decide the

dispute between the conflicting groups. The other prerequisite for invoking

the jurisdiction of the Speaker under para. 6 is the existence of a

question of disqualification of the some member. Such a question can arise

only in one way, viz., that any member is alleged to have incurred the

disqualification enumerated in para 2(1) and some interested person

approaches the Speaker for declaring that the said member is disqualified

from being member of the House and the claim is refuted by the member

concerned.

It was argued on behalf of the 37 M.L.As. that this position adopted by the

Full Bench does not reflect the correct position in law since there is

nothing in the Tenth Schedule which precludes the Speaker from rendering an

adjudication either in respect of a claim under paragraph 3 of the Schedule

or paragraph 4 of the Schedule, independent of any question arising before

him in terms of paragraph 2 of the Schedule. Considering the scheme of the

Tenth Schedule in the context of Articles 102 and 191 of the Constitution

and the wording of paragraph 6 and the conferment of jurisdiction on the

Speaker thereunder, we are inclined to the view that the position adopted

by the majority of the High Court of Punjab & Haryana in the above decision

as to the scope of the Tenth Schedule, reflects the correct legal position.

Under the Tenth Schedule, the Speaker is not expected to simply entertain a

claim under paragraphs 3 and 4 of the Schedule without first acquiring

jurisdiction to decide a question of disqualification in terms of paragraph

6 of the Schedule. The power if any, he may otherwise exercise

independently to recognise a group or a merger, cannot be traced to the

Tenth Schedule to the Constitution. The power under the Tenth Schedule to

do so accrues only when he is called upon to decide the question referred

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to in paragraph 6 of that Schedule.

In the case on hand, the Speaker had a petition moved before him for

disqualification of 13 members of the B.S.P. When that application was

pending before him, certain members of B.S.P. had made a claim before him

that there has been a split in B.S.P. The Speaker, on the scheme of the

Tenth Schedule and the rules framed in that behalf, had to decide the

application for disqualification made and while deciding the same, had to

decide whether in view of paragraph 3 of the Tenth Schedule, the claim of

disqualification has to be rejected. We have no doubt that the Speaker had

totally misdirected himself in purporting to answer the claim of the 37

M.L.As. that there has Page 1011 been a split in the party even while

leaving open the question of disqualification raised before him by way of

an application that was already pending before him. This failure on the

part of the Speaker to decide the application seeking a disqualification

cannot be said to be merely in the realm of procedure. It goes against the

very constitutional scheme of adjudication contemplated by the Tenth

Schedule read in the context of Articles 102 and 191 of the Constitution.

It also goes against the rules framed in that behalf and the procedure that

he was expected to follow. It is therefore not possible to accept the

argument on behalf of the 37 M.L.As. that the failure of the Speaker to

decide the petition for disqualification at least simultaneously with the

petition for recognition of a split filed by them, is a mere procedural

irregularity. We have no hesitation in finding that the same is a

jurisdictional illegality, an illegality that goes to the root of the so

called decision by the Speaker on the question of split put forward before

him. Even within the parameters of judicial review laid down in Kihoto

Hollohan (supra) and in Jagjit Singh v. State of Haryana it has to be found

that the decision of the Speaker impugned is liable to be set aside in

exercise of the power of judicial review.

There is another aspect. The Speaker, after he kept the determination

of the question of disqualification pending, passed an order that the said

petition will be dealt with after the High Court had taken a decision on

the Writ Petition pending before it and directed that the said petition be

taken up after the Writ Petition was disposed of. Then, suddenly, without

any apparent reason, the Speaker took up that application even while the

Writ Petition was pending and dismissed the same on 7.9.2005 by purporting

to accept a so called preliminary objection raised by the 13 M.L.As. sought

to be disqualified, to the effect that his recognition of the split of the

37 M.L.As. including themselves, has put an end to that application. This

last order is clearly inconsistent with the Speaker's earlier order dated

14.11.2003 and still leaves open the question whether the petition seeking

disqualification should not have been decided first or at least

simultaneously with the application claiming recognition of a split. If the

order recognising the split goes, obviously this last order also cannot

survive. It has perforce to go.

Considerable arguments were addressed on the scope of paragraph 2 and

paragraph 3 of the Tenth Schedule with particular reference to the point of

time that must be considered to be relevant. Whereas it was argued on

behalf of leader of B.S.P. that the liability or disability is incurred at

the point of voluntarily giving up the membership of the political party,

according to the 37 M.L.As. who left, the relevant point of time is the

time when the Speaker takes a decision on the plea for disqualification. As

a corollary to the above, the contention on the one side is that if on the

day the disqualification is incurred there has been no split in terms of

paragraph 3, those disqualified who had given up their membership of the

party must be declared disqualified, the argument on the other side is that

if by the time the Speaker takes the decision, the persons sought to be

disqualified are able to show that there has been a split in the original

party and by that time they have a strength of Page 1012 one third of the

Legislature party, the Speaker will have necessarily to accept the split

and reject the petition for disqualification. In other words, according to

this argument all developments until the point of decision by the Speaker

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are to be taken note of by him, while deciding the question of

disqualification. They canvas the acceptance of what the learned Chief

Justice of the High Court has called the snowballing effect of persons

severing their connections with the original party and joining the quitters

subsequently and not confining the decision to the point of their alleged

severing their connection with the original party.

It is argued on behalf of 37 MLAs that the disqualification on the

ground of defection should not be held as a sword of Damocles against

honest political dissent and the prevention of honest political dissent is

not the object sought to be achieved by the Tenth Schedule. This submission

is sought to be supported by the argument that at the relevant time

paragraph 3 provided that if on the basis of a split in the original party

one third of the members of the Legislature party have voluntarily give up

their membership of the original political party, they could not be

disqualified. The relevant observations in Kihoto Hollohan (supra) are

referred to. It is also pointed out that paragraph 4 which is still

retained, also contemplates leaving of one's own party by merging of that

party with another political party though by definition, that may also

amount to defection in terms of paragraph 2.

It may be true that collective dissent is not intended to be stifled by

the enactment of sub-article (2) of Articles 102 and 191 of the Tenth

Schedule. But at the same time, it is clear that the object is to

discourage defection which has assumed menacing proportions undermining the

very basis of democracy. Therefore, a purposive interpretation of paragraph

2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called

for. One thing is clear that defection is a ground for disqualifying a

member from the House. He incurs that disqualification if he has

voluntarily given up his membership of his original political party,

meaning the party on whose ticket he had got elected himself to the House.

In the case of defiance of a whip, the party concerned is given an option

either of condoning the defiance or seeking disqualification of the member

concerned. But, the decision to condone must be taken within 15 days of the

defiance of the whip. This aspect is also relied on for the contention that

the relevant point of time to determine the question is when the Speaker

actually takes a decision on the plea for disqualification.

As we see it, the act of disqualification occurs on a member

voluntarily giving up his membership of a political party or at the point

of defiance of the whip issued to him. Therefore, the act that constitutes

disqualification in terms of paragraph 2 of the Tenth Schedule is the act

of giving up or defiance of the whip. The fact that a decision in that

regard may be taken in the case of voluntary giving up by the Speaker at a

subsequent point of time cannot and does not postpone the incurring of

disqualification by the act of the Legislator. Similarly, the fact that the

party could condone the defiance of a whip within 15 days or that the

Speaker takes the decision only thereafter in those cases, cannot also

pitch the time of disqualification as anything other than the point at

which the whip is defied. Therefore in the background of Page 1013 the

object sought to be achieved by the Fifty Second Amendment of the

Constitution and on a true understanding of paragraph 2 of the Tenth

Schedule, with reference to the other paragraphs of the Tenth Schedule, the

position that emerges is that the Speaker has to decide the question of

disqualification with reference to the date on which the member voluntarily

gives up his membership or defies the whip. It is really a decision ex post

facto. The fact that in terms of paragraph 6 a decision on the question has

to be taken by the Speaker or the Chairman, cannot lead to a conclusion

that the question has to be determined only with reference to the date of

the decision of the Speaker. An interpretation of that nature would leave

the disqualification to an indeterminate point of time and to the whims of

the decision making authority. The same would defeat the very object of

enacting the law. Such an interpretation should be avoided to the extent

possible. We are, therefore, of the view that the contention that only on a

decision of the Speaker that the disqualification is incurred, cannot be

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accepted. This would mean that what the learned Chief Justice has called

the snowballing effect, will also have to be ignored and the question will

have to be decided with reference to the date on which the membership of

the Legislature party is alleged to have been voluntarily given up.

In the case on hand, the question would, therefore be whether on

27.3.2003 the 13 members who met the Governor with the request to invite

the leader of the Samajwadi Party to form the Government had defected, on

27.8.2003 and whether they have established their claim that on 26.8.2003

there had been a split in the Bahujan Samaj Party and one third of the

members of the Legislature of that party had come out of that party. It may

be noted that the clear and repeated plea in the counter affidavit to the

writ petition is that a split had occurred on 26.8.2003. This was also the

stand of the petitioner before the Speaker for recognition of a split. The

position as on 6.9.2003 when the 37 MLAs presented themselves before the

Speaker would not have relevance on the question of disqualification which

had allegedly been incurred on 27.8.2003.

The question whether for satisfying the requirements of paragraph 3, it

was enough to make a claim of split in the original political party or it

was necessary to at least prima facie establish it, fell to be considered

in the decision in Jagjit Singh v. State of Haryana (supra) rendered by a

Bench of three Judges to which one of us, (Balasubramanyan, J.) was a

party. Dealing with an argument that a claim of split in the original

political party alone is sufficient in addition to showing that one-third

of the members of the legislature Party had formed a separate group, the

learned Chief Justice has explained the position as follows:

Learned Counsel for the petitioner, however, relies upon paragraph 37 in

Ravi S. Naik's case in support of the submission that only a claim as to

split has to be made and it is not necessary to prove the split. The said

observations are:

In the present case the first requirement was satisfied because Naik has

made such a claim. The only question is whether the second requirement was

fulfilled.

Page 1014

The observations relied upon are required to be appreciated in the light of

what is stated in the next paragraph, i.e., paragraph 38, namely:

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.

Apart from the above, the acceptance of the contention that only claim is

to be made to satisfy the requirements of paragraph 3 can lead to absurd

consequences besides the elementary principle that whoever makes a claim

has to establish it. It will also mean that when a claim as to split is

made by a member before the speaker so as to take benefit of paragraph 3,

the Speaker, without being satisfied even prima facie about the genuineness

and bonafides of the claim, has to accept it. It will also mean that even

by raising a frivolous claim of split of original political party, a member

can be said to have satisfied this stipulation of paragraph 3. The

acceptance of such broad proposition would defeat the object of defection

law, namely, to deal with the evil of political defection sternly. We are

of the view that for the purposes of paragraph 3, mere making of claim is

not sufficient. The prima facie proof of such a split is necessary to be

produced before the Speaker so as to satisfy him that such a split has

taken place.

Thus, in the above decision, it has been clarified that it is not

enough that a claim is made of a split in the original party, in addition

to showing that one third of the members of the Legislature Party have come

out of the party, but it is necessary to prove it at least prima facie.

Those who have left the party, will have, prima facie, to show by relevant

materials that there has been a split in the original party. The argument,

therefore, that all that the 37 MLAs were required to do was to make a

claim before the Speaker that there has been a split in the original party

and to show that one third of the members of the Legislature party have

come out and that they need not produce any material in support of the

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split in the original political party, cannot be accepted. The argument

that the ratio of the decision in Jagjit Singh (supra) requires to be

reconsidered does not appeal to us. Even going by Ravi S. Naik (supra) it

could not be said that the learned Judges have held that a mere claim in

that behalf is enough. As pointed out in Jagjit Singh (supra) the sentence

in paragraph 37 in Ravi S. Naik's case (supra) cannot be read in isolation

and it has to be read along with the relevant sentence in paragraph 38

quoted in Jagjit Singh (supra).

Acceptance of the argument that the legislators are wearing two hats,

one as members of the original political party and the other as members of

the legislature and it would be sufficient to show that one third of the

legislators have formed a separate group to infer a split or to postulate a

split in the original party, would militate against the specific terms of

paragraph 3. That paragraph speaks of two requirements, one, a split in the

original party and two, a group comprising of one third of the legislators

separating from the legislature party. By acceding to the two hat theory

one of the limbs of paragraph 3 would be made redundant or otios. An

interpretation of that Page 1015 nature has to be avoided to the extent

possible. Such an interpretation is not warranted by the context. It is

also not permissible to assume that the Parliament has used words that are

redundant or meaningless. We, therefore, overrule the plea that a split in

the original political party need not separately be established if a split

in the legislature party is shown.

On the side of the 37 M.L.As., the scope of judicial review being

limited was repeatedly stressed to contend that the majority of the High

Court had exceeded its jurisdiction. Dealing with the ambit of judicial

review of an order of the Speaker under the Tenth Schedule, it was held in

Kihoto Hollohan (supra):

In the present case, the power to decide disputed disqualification under

Paragraph 6(1) is preeminently of a judicial complexion.

The fiction in Paragraph 6(2), indeed, places it in the first clause of

Article 122 or 212, as the case may be. The words "proceedings in

Parliament" or "proceedings in the legislature of a State" in Paragraph

6(2) have their corresponding expression in Articles 122(1) and 212(1)

respectively. This attracts an immunity from mere irregularities of

procedures.

That apart, even after 1986 when the Tenth Schedule was introduced, the

Constitution did not evince any intention to invoke Article 122 or 212 in

the conduct of resolution of disputes as to the disqualification of members

under Articles 191(1) and 102(1). The very deeming provision implies that

the proceedings of disqualification are, in fact, not before the House; but

only before the Speaker as a specially designated authority. The decision

under paragraph 6(1) is not the decision of the House, nor is it subject to

the approval by the House. The decision operates independently of the

House. A deeming provision cannot by its creation transcend its own power.

There is, therefore, ho immunity under Articles 122 and 212 from judicial

scrutiny of the decision of the Speaker or Chairman exercising power under

Paragraph 6(1) of the Tenth Schedule.

After referring to the relevant aspects, it was held:

By these well-known and accepted tests of what constitute a Tribunal, the

Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule

is a Tribunal.

It was concluded:

In the light of the decisions referred to above and the nature of function

that is exercised by the Speaker/Chairman under paragraph 6, the scope of

judicial review under Articles 136, and 226 and 227 of the Constitution in

respect of an order passed by the Speaker/Chairman under paragraph 6 would

be confined to jurisdictional errors only viz., infirmities based on

violation of constitutional mandate, mala fides, non-compliance with rules

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of natural justice and perversity.

The position was reiterated by the Constitution Bench in Raja Ram Pal v.

The Hon'ble Speaker, Lok Sabha and Ors. We are of the view Page 1016 that

contours of interference have been well drawn by Kihoto Hollohan (supra)

and what is involved here is only its application.

Coming to the case on hand, it is clear that the Speaker, in the

original order, left the question of disqualification undecided. Thereby he

has failed to exercise the jurisdiction conferred on him by paragraph 6 of

the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held

to be covered by the shield of paragraph 6 of the Schedule. He has also

proceeded to accept the case of a split based merely on a claim in that

behalf. He has entered no finding whether a split in the original political

party was prima facie proved or not. This action of his, is apparently

based on his understanding of the ratio of the decision in Ravi S. Naik's

case (supra). He has misunderstood the ratio therein. Now that we have

approved the reasoning and the approach in Jagjit Singh's case and the

ratio therein is clear, it has to be held that the Speaker has committed an

error that goes to the root of the matter or an error that is so

fundamental, that even under a limited judicial review the order of the

Speaker has to be interfered with. We have, therefore, no hesitation in

agreeing with the majority of the High Court in quashing the decisions of

the Speaker.

In view of our conclusions as above, nothing turns on the arguments

urged on what were described as significant facts and on the alleged

belatedness of the amendment to the Writ Petition. It is undisputable that

in the order that was originally subjected to challenge in the Writ

Petition, the Speaker specifically refrained from deciding the petition

seeking disqualification of the 13 M.L.As. On our reasoning as above,

clearly, there was an error which attracted the jurisdiction of the High

Court in exercise of its power of judicial review.

The question then is whether it was necessary for the majority of the

Division Bench of the High Court to remand the proceeding to the Speaker or

a decision could have been taken whether the 13 members stand disqualified

or not and if they are found to be disqualified, the balance 24 of the 37

would also stand disqualified, since in that case, there will be no one

third of the Legislature party forming a separate group as claimed by them.

It is contended on behalf of the Bahujan Samaj Party that there is

absolutely no material to show that there was any meeting of the party on

26.8.2003 as claimed by the 37 members and it has not been shown that there

was any convention of the original political party or any decision taken

therein to split the party or to leave the party by some of the members of

that party. It is also pointed out that no agenda of the alleged meeting or

minutes of the alleged meeting is produced. No other material is also

produced. Even prior to 6.9.2003, when the claim of split before the

Speaker was made and 26.8.2003, when the split is claimed to have occurred,

the 24 members of the 37, had sat with the Bahujan Samaj Party in the

Legislative Assembly and that itself would show that there had been no

split on 27.8.2003 as now claimed. It is also pointed out that on 2.9.2003,

the day of the convening of the Assembly, the 13 members of the B.S.P. who

had met the Governor on 27.8.2003, had sat with members of the Samajwadi

Party in the Assembly and an objection was raised to it. The Speaker got

over the situation by saying that the only business on the agenda that day

was obituary Page 1017 references and the question need not be raised that

day. It is, therefore, contended that on the facts, it is crystal clear

that the 13 members sought to be disqualified had defected and the

defection is manifest by their meeting the Governor on 27.8.2003 requesting

him to call upon the leader of the Samajwadi Party to form the Government.

As against these submissions, it is contended that it was for the

Speaker to take a decision in the first instance and this Court should not

substitute its decision for that of the Speaker. It is submitted that the

High Court was therefore justified in remitting the matter to the Speaker,

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in case this Court did not agree with the 37 MLAs that the decision of the

Speaker did not call for interference.

Normally, this Court might not proceed to take a decision for the first

time when the authority concerned has not taken a decision in the eyes of

law and this Court would normally remit the matter to the authority for

taking a proper decision in accordance with law and the decision this Court

itself takes on the relevant aspects. What is urged on behalf of the

Bahujan Samaj Party is that these 37 MLAs except a few have all been made

ministers and if they are guilty of defection with reference to the date of

defection, they have been holding office without authority, in defiance of

democratic principles and in such a situation, this Court must take a

decision on the question of disqualification immediately. It is also

submitted that the term of the Assembly is coming to an end and an

expeditious decision by this Court is warranted for protection of the

constitutional scheme and constitutional values. We find considerable force

in this submission.

Here, the alleged act of disqualification of the 13 MLAs took place on

27.8.2003 when they met the Governor and requested him to call the leader

of the opposition to form the Government. The petition seeking

disqualification of these 13 members based on that action of theirs has

been allowed to drag on till now. It is not necessary for us to consider or

comment on who was responsible for such delay. But the fact remains that

the term of the Legislative Assembly that was constituted after the

elections in February 2002, is coming to an end on the expiry of five

years. A remand of the proceeding to the Speaker or our affirming the order

of remand passed by the High Court, would mean that the proceeding itself

may become infructuous. We may notice that the question of interpretation

of the Tenth Schedule and the question of disqualification earlier raised

in regard to members of the prior assembly of this very State, which led to

the difference of opinion between two of the learned Judges of this Court

and which stood referred to a Constitution Bench, was, disposed of on the

ground that it had become infructuous in view of the expiry of the term of

the Assembly. Paragraph 3 of the Tenth Schedule has also been deleted by

the Parliament, though for the purpose of this case, the scope of that

paragraph is involved. Considering that if the 13 members are found to be

disqualified, their continuance in the Assembly even for a day would be

illegal and unconstitutional and their holding office as ministers would

also be illegal at least after the expiry of six months from the date of

their taking charge of the offices of Ministers, we think that as a Court

bound to protect the Constitution and its values and the principles of

democracy which is a basic feature of the Constitution, this Page 1018

Court has to take a decision one way or the other on the question of

disqualification of the 13 MLAs based on their action on 27.8.2003 and on

the materials available.

The main thrust of the argument on the side of the 13 MLAs included in

the 37 MLAs, has been that it was enough if a claim of a split in the

original political party had been made and it was not necessary to

establish any such split and it was enough for them to show that 37 of them

had signed the petition filed before the Speaker on 6.9.2003. We have held

on an interpretation of paragraph 3 and in approval of the ratio in Jagjit

Singh (supra) that the 37 MLAs which includes the 13 MLAs in question had

to establish a split in the original political party, here BSP, before they

can get the protection offered by paragraph 3. The question is whether they

have proved at least prima facie any such split.

The first act on the part of the 13 MLAs which is relevant is the

giving of letters by them to the Governor, the contents of which we have

quoted earlier in paragraph 16. Therein, there is no claim that there was a

split in the Legislature Party on 26.8.2003 as was put forward in the

representation on 6.9.2003 by 37 members. It is interesting to note that in

the counter-affidavit to the writ petition filed by Rajendra Singh Rana who

can be described as the leader of the 13 (for that matter of the 37), it

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has been repeatedly asserted that on 26.8.2003 a new party called Lok

Tantrik Bahujan Dal was formed. Therefore, this was a case in which the

theory of snow balling adverted to by the learned Chief Justice in the

Judgment under appeal had no relevance. The issue was, whether on 26.8.2003

there had been a split in the original political party, the BSP and whether

by that split, 37 of the MLAs of that Legislature Party had come out of

that party. As rightly pointed out by learned Counsel for BSP, no material

is produced either to show that a meeting of the members of BSP was

convened on 26.8.2003 or that a meeting took place at Darulshafa in which a

split in the original political party occurred. On the other hand, the

letters given to the Governor on 27.8.2003 by the 13 members sought to be

disqualified, is totally silent on any such split in the original political

party or on a new party being formed by certain members of the original

political party. This is followed by the fact that on 2.9.2003 only the

members who had met the Governor, sat with the members of the Samajwadi

Party abandoning their seats with BSP in the Assembly and the other 24,

which made up the 37, remained in their seats along with the BSP. More

over, no notice of a proposed meeting of the party on 26.8.2003, or

evidence of any announcement of such a proposed meeting is produced. No

agenda of any such meeting is also produced. No minutes evidencing any

decision to split the party taken at such a meeting, is also produced.

These relevant aspects clearly demonstrate that the story of a split in the

original political party put forward in the letter dated 6.9.2003 was only

an afterthought. Even before us, no material was referred to, to suggest or

establish that there was a split on 26.8.2003 and the formation of a Lok

Tantril Dal as claimed in the counter affidavit to the writ petition. The

attempt was only to argue that we must leave the decision to the Speaker in

the first instance and that the challenge to the meeting on 26.8.2003 Page

1019 was only raised belatedly in the writ petition. On a scrutiny of the

pleadings in the original writ petition, we cannot also agree with that

latter submission.

The act of giving a letter requesting the Governor to call upon the

leader of the other side to form a Government, itself would amount to an

act of voluntarily giving up the membership of the party on whose ticket

the said members had got elected. Be it noted that on 26.8.2003, the leader

of their party had recommended to the Governor, a dissolution of the

Assembly. The first eight were accompanied by Shivpal Singh Yadav, the

General Secretary of the Samajwadi Party. In Ravi Naik (supra) this Court

observed:

A person may voluntarily give up his membership of an original political

party even though he has not tendered his resignation from the membership

of that party. Even in the absence of a formal resignation from the

membership, an inference can be drawn from the conduct of a member that he

has voluntarily given up his membership of the political party to which he

belongs.

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. Then the only question is whether they had shown at least prima

facie that a split had occurred in the original political party on

26.8.2003 and they had separated from it along with at least 24 others, so

as to make up one-third of the legislature party.

The learned Chief Justice who declined to interfere with the decision

of the Speaker on his interpretation of paragraphs 2 and 3 of the Tenth

Schedule to the Constitution with which we have disagreed, himself stated:

As per the dicta in the case of Naik reported 1994 (Suppl.)2 SCC 641, the

going of the 13 MLAs to the Governor on 27.8.2003 is a conduct which leads

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to the inference that they had voluntarily given up their membership of the

Bahujan Dal. They asked the governor to call the leader of the main

opposing party, to be requested to demonstrate his strength. In paragraph

11 in Naik's case, it is said that an inference can be drawn from the

conduct of a member that he was voluntarily given up his membership. That

inference has to be drawn in regard to the conduct of 27.08.2003 most

certainly.

He has also observed while considering whether the Speaker had to consider

paragraph 2 of the Tenth Schedule first or he is to consider paragraph 3

first.

The order of consideration will yield diametrically opposite results. Even,

in this case, if he had considered paragraph 2 first, he might well have

had to disqualify all 37, as they did not walk away at one and the same

time. But because he considered paragraph 3 first, because he though as a

matter of law that the requirements of paragraph 3 being satisfied, Page

1020 it obviated the necessity of considering paragraph 2 separately for

any part of the whole group, he gave a decision for the respondents.

The learned Chief Justice has further held:

Even if 37 out of 109 Bahujan MLAs have walked out, only the legislature

party is split. This is defined in paragraph 1(b), which has been set out

earlier; but in this case of ours, where is the proof before the Speaker of

the split in the original party? Were any minutes tendered before the

Speaker showing that so many lacs or millions of the original Bahujan Dal

decided to split? A claim that on 26.08.2003, there were some party members

along with the MLAs at the Darulshafa in Lucknow is not enough; it is too

inadequate. The Bahujan Dal is too big; its party membership is too

numerous for it to suffer a split in such a comparatively minor meeting,

even if it took place on 26.8.2003. There was no intimation that one group

was going to split; even the name Loktantrik Bahujan Dal found its place

for the first time on paper on 6.9.2003; there were no Newspaper reports;

there were no statements of dissatisfied party members; the core of the

Bahujan Dal was not asked to "rectify" its behavior or else. The threat of

a split was not even made imminent; nothing like this happened; only one

evening, it is claimed, the Bahujan Dal had split and a faction had arisen.

This is so cursory as not to class as a split in the original party at all.

Look at the split in Congress-O, which resulted in Congress-I coming into

being; Looking at the split in Congress-I in West Bengal and the resulting

Trinamul Congress coming into being, was there anything like that here? The

answer is a big no.

One of the learned Judges who constitutes the majority has held:

...but the court cannot certainly close its eyes to the fact that had the

application for disqualification dated 4.9.2003 been treated with the same

promptitude and constitutionally required urgency, the 13 MLAs whose

Membership in question was hanging in the balance could not have been

counted along with 24 others, who joined hands to conjure up the minimum

required member....

As we have indicated, nothing is produced to show that there was a

split in the original political party on 26.8.2003 as belatedly put forward

or put forward at a later point of time. But still, the plea was of a split

on 26.8.2003. On the materials, the only possible inference in the

circumstances of the case, is that it has not been proved, even prima

facie, by the MLAs sought to be disqualified that there was any split in

the original political party on 26.8.2003 as claimed by them. The necessary

consequence would be that the 24 members, who later joined the 13, could

not also establish a split in the original political party as having taken

place on 26.8.2003. In fact even a split involving 37 MLAs on 26.8.2003 is

not established. That was also the inference rightly drawn by the learned

Chief Justice in the judgment appealed against.

In view of our conclusion that it is necessary not only to show that 37

MLAs had separated but it is also necessary to show that there was a split

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in the original political party, the above finding necessarily leads to the

Page 1021 conclusion that the 13 MLAs sought to be disqualified had not

established a defence or answer to the charge of defection under paragraph

2 on the basis of paragraph 3 of the Tenth Schedule. The 13 MLAs,

therefore, stand disqualified with effect from 27.8.2003. The very giving

of a letter to the Governor requesting him to call the leader of the

opposition party to form a Government by them itself would amount to their

voluntarily giving up the membership of their original political party

within the meaning of paragraph 2 of the Tenth Schedule. If so, the

conclusion is irresistible that the 13 members of BSP who met the Governor

on 27.8.2003 who are respondent Nos. 2, 3, 4, 5, 6, 9, 10, 14, 16, 19, 20,

21 and 37, in the writ petition filed by Maurya, stand disqualified in

terms of Article 191(2) of the Constitution read with paragraph 2 of the

Tenth Schedule thereof, with effect from 27.8.2003. If so, the appeal filed

by the writ petitioner has to be allowed even while dismissing the appeals

filed by the 37 MLAs, by modifying the decision of the majority of the

Division Bench. Hence the writ petition filed in the High Court, will stand

allowed with a declaration that the 13 members who met the Governor on

27.8.2003, being respondent Numbers 2, 3, 4, 5, 6, 9, 10, 14, 16, 19, 20,

21 and 37 in the writ petition, stand disqualified from the Uttar Pradesh

Legislative Assembly with effect from 27.8.2003.

The appeals filed by the 37 MLAs are dismissed and the appeal filed by

the writ petitioner is allowed in the above manner. The disqualified

members will pay the costs of the writ petitioner, here and in the High

Court.