Gauhati High Court
Imkong Imchen And Ors. vs Union Of India (Uoi) And Ors. on 28 July, 2005
Equivalent citations: AIR2006GAU1, AIR 2006 GAUHATI 1, 2006 (1) ALL LJ NOC 151, 2006 (1) AJHAR (NOC) 126 (GAU), 2005 GAULT(SUPP) 75
Author: A.H. Saikia
Bench: A.H. Saikia
ORDER A.H. Saikia, J.
1. Heard Mr. P. L. Aier, learned counsel for the petitioner. Also heard Mr. K. Meruno, learned Asstt. Solicitor General assisted by Mr. T. B. Jamir. learned Central Govt. Counsel for the Union,; of India and Mr. I. Jamir, learned Addl. Advocate General, Nagaland assisted by Mr. L.S. Jamir, learned Govt. Advocate, Nagaland for the State respondent.
2. By this writ petition, the 4(four) petitioners who are elected members of the Xth Nagaland Legislative Assembly as independent candidate elected from their respective Constituency have assailed sub-para (2) of the Paragraph 2 of the TENTH SCHEDULE of the Constitution of India being violative of the basic structure of the Constitution of India.
3. According to Mr. Aier, the learned counsel appearing on behalf of the petitioners the sole ground of challenge of the aforesaid provision is that sub-para (2) of Para 2 creates an unreasonable discrimination to an elected independent member to that of a nominated member to a House as enshrined in sub-para (3) of Para 2 of the TENTH SCHEDULE. His contention is that when a nominated member of a House is permitted to join any political party before the expiry of 6 (six) months from the date on which he takes his seat as a nominated member as per Sub-para (3) of Para 2, an elected member of a House has been debarred from joining any political party after being elected as independent candidate.
4. To answer this short question so raised, it will be apposite and necessary to refer to the provisions under attack and the same may be noticed as under :-
TENTH SCHEDULE
2. Disqualification on ground of defection.-
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(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.
(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99, as the case may be, Article 188.
5. From a bare perusal of the above provision of TENTH SCHEDULE which is popularly known as Anti-Defection Law, it appears that a member elected to a House as a candidate not being set up by any political party shall be disqualified for being a member of the House if he joins any political party after his such election. In other words, a member elected as independent candidate is prohibited from joining any political party after his election as an independent candidate. Otherwise in case of such joining any political party, he shall be disqualified. So far sub-para (3) of Para 2 is concerned, a member of a House who has been nominated shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of Article 99 or Article 188 of the Constitution of India which provide for subscribing an other before taking his seat in the respective House as the case may be. In otherwords, a nominated member is debarred from joining any political party after the expiry of six months from the date on which he takes his seat after subscribing oath in the House to which he is elected.
6. The TENTH SCHEDULE i.e. Anti Defection Law was inserted by Constitution (52nd Amendment) Act, 1985 making it operational with effect from 1-3-1985 with a specific purpose and such purpose manifestly emerges from the Statement of Objects and Reasons appended to the Bill itself which was later on adopted as the Constitution (52nd Amendment) Act, 1985 which speaks as follows :
The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. By this amendment it is basically intended to stop the political defection to uphold the settled democratic set. up in the governance of the country. To punish the unprincipled political elected representatives who are prone to crossing the floor after their election, this TENTH SCHEDULE has been appended to the Constitution of India for the sustenance of the very system of Parliamentary Democracy.
7. From a close reading of sub-para (2) of Para 2 which has been assailed being violative of basic structure of the Constitution, it appears that an independent elected member has been prevented from joining any political party after his such election. It seems this embargo has been put for a simple reason that an independent member is elected by the people's popular mandate on the basis of the voters sole conviction that he would function as non-party man to demonstrate the fact that they are averse to the political parties due to very many a reason. View of the electorates is that being a non-party man, he can deliver the best to a betterment of the society which the political parties fail to do according to the voters and the public of the particular Constituency. Under such conviction, hope and belief, an elector decides to vote for the independent candidate and to elect him to the Assembly so as to espouse of their causes and grievances on the Assembly door. Should this independent elected member is allowed to join a political party, it will amount to betraying the trust and confidence reposed upon him by his electorate from the particular Constituency and allowance of the same would adversely affect the democratic set up. It can be presumed that had the individual candidate fought the hustings on a political party ticket, he might not have been elected even. Moreso, any interference with the provisions under challenge, shall frustrate and defeat the very purpose and object of the TENTH SCHEDULE.
8. Insofar nominated member as stipulated in sub-para 3 of Para 2 of the TENTH SCHEDULE, is concerned, he/she is nominated mainly on the basis of special qualification, expertise and practical experience which he/she possesses in a particular specific field but not on consideration of any political affiliation. However, he/she should and must be allowed to continue to enjoy his/her political freedom at the time of his/ her nomination. If there is no such political inclination at the time of such election, he/ she may choose any political party of his/ her choice after being elected; but joining any such political party after the election must be effected within a time frame i.e. within a period of six months from the date on which he takes the seat in the respective House.
9. Mr. P. L. Aier, the learned counsel for the petitioners has cited a host of decisions of the Apex Court in support of the contention of the petitioners for declaring the sub-para (2) of Para 2 of the TENTH SCHEDULE as un-constitutional and violative of basic structure of the Constitution of India and those cases may be referred as follows :
1. RMDC v. U.O.I. .
2. Ram K. Dalmia v. Tendolkar .
3. Cochin Devaswom v. V. Shetty .
4. Kesavananda Bharti v. State of Kerala .
5. Maneka Gandhi v. UOI .
6. State of A. P. v. Meclowell .
7. Stale oi'West Bengal v. UOI .
8. S. P. Anand v. 11. D. Deve Gowda .
9. Klhota Hollohan v. Zachillhu .
10. Luis Proto Barbosa v. UOI .
11. Common Cause v. UOI .
12. John Valiamattom v. UOI .
13. Kapila Hingorani v. State of Bihar .
On perusal of those cited eases, this Court is of firm view that the ratio laid down in those cases is no way applicable to the present facts and circumstances of the case so as to support the submissions of the petitioners and accordingly, the Court does refrain from discussing those cases so as to not to burden this judgment with a lengthy commentary.
10. In Kihota Hollohan's case (Kihota Hollohan v. Zachillhu) in which the Constitutional validity of the TENTH SCHEDULE of the Constitution introduced by the Constitution (52nd Amendment) Act, 1985 was assailed, the Apex Court approved the Constitutional validity of the TENTH SCHEDULE barring paragraph 7 which was declared to be un-constitutional and consequently struck down.
11. On careful scanning of the recital of the provisions of sub-para (2) of Para 2 of the TENTH SCHEDULE, upon hearing the learned counsel appearing on behalf of the parties and also in view of the above discussion as well as taking into account the Constitutional validity of the TENTH SCHEDULE as declared in Hollohan's case (supra) though the present issue was not raised therein, this Court is of the view that the provisions of law in question i.e. sub-para (2) of Para 2 of the TENTH SCHEDULE is not discriminatory and violative of the basic structure of the Constitution of India but the said provision is very much within the purview of its Constitutional validity. In that view of the matter, this Court does find no merit in this ease.
12. In the result, this writ petition stands dismissed.