Jharkhand High Court
Anosh Ekka vs Shri Alamgir Alam on 6 September, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
-1- W.P.(C) No. 4123 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4123 of 2009
Anosh Ekka, son of Sri Anand Kumar Ekka,
residing at H. No. 132, Minister's Residence,
Doranda, P.O. and P.S.-Doranda,
Near Jharkhand High Court,
Town and District-Ranchi, Jharkhand. ..... ... Petitioner
Versus
1. Shri Alamgir Alam, son of- not known to the petitioner,
Speaker, Jharkhand Legislative Assembly
(at present under suspension), Dhurwa, Ranchi.
2. Hon'ble Speaker (An authority under Schedule-10 of the
Constitution of India), Jharkhand Legislative Assembly,
Dhurwa, Ranchi-834004. ...... ... Respondents.
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Rajendra Krishna, Advocate.
: Mr. Amit Sinha, Advocate.
: Mr. Pratiyush Shounikya, Advocate.
: Mr. Shubham Mayank, Advocate.
For the Resp. No. 2 : Mr. Anil Kumar, Advocate.
: Mr. Ankitesh Kumar Jha, Advocate.
: Ms Aparna Dubey, Advocate.
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C.A.V. on 25.08.2023 Pronounced on 06.09.2023.
Heard Mr. Rajendra Krishna, learned counsel appearing for the petitioner and Mr. Anil Kumar, learned counsel appearing for the respondent No. 2. The argument was concluded on 25.08.2023 and the judgment was reserved on that day.
2. This petition has been filed against the order dated 13.08.2009, contained in Annexure-3, issued by the respondent No. 1, who was the Speaker, Jharkhand Legislative Assembly, while exercising powers under 10th Schedule of the Constitution of India and Clause-2 of the same, in particular for allegedly violating the 'Whip', issued by the then President of Jharkhand Party directing the petitioner to support the United Progressive Alliance (hereinafter referred to as 'U.P.A.') Government headed by Shri Shibu Soren in the vote of confidence in the Jharkhand Assembly and to cast vote in favour of U.P.A. candidates for the post of Chief Minister, whereby, he has been pleased to disqualify the petitioner being a Member of Jharkhand Legislative Assembly and has ceased to be the Member of the same with effect from the date of the impugned order dated 13.08.2009.
-2- W.P.(C) No. 4123 of 20093. Mr. Rajendra Krishna, learned counsel appearing for the petitioner submitted that the petitioner had contested election for Membership of the Legislative Assembly from Kolebira Assembly Constituency as a candidate from the Jharkhand Party and was declared elected vide order of the Returning Officer dated 27.02.2005. He submitted that on 01.03.2005, Sri N.E. Horo issued 'Whip', directing the petitioner to support U.P.A. Government. On 02.03.2005, Shri N.E. Horo withdrawn letter dated 01.03.2005, issuing 'Whip' directing the petitioner to support U.P.A. and on the even date, another letter had been issued by Shri N.E. Horo stating that the earlier letter dated 02.03.2005 was obtained under duress. He further submitted that on 05.03.2005, the Party resolved for suspending Shri Lal Ran Vijay Nath Shahdeo and two others Members of the party for six years. He further submitted that the act of Shri N.E. Horo was condemned in the meeting of the Central Working Committee and the District Committee Members on 06.03.2005 and Shri N.E. Horo was suspended from the party on 07.03.2005. He further submitted that Shri Ashok Kumar Bhagat, Central General Secretary, informed the Chief Election Commissioner about the suspension of Shri N.E. Horo on 09.03.2005. He submitted that Shri Lal Ran Vijay Nath Shahdeo on 09.03.2005 after selected as New Party President, issued 'Whip' to the petitioner to support the National Democratic Alliance (hereinafter referred to as N.D.A.). On 09.03.2005 itself, N.E. Horo wrote a letter to the Protem Speaker praying that action be taken against the petitioner (Anosh Ekka) as per the 10th Schedule of the Constitution of India for not following the party resolution dated 01.03.2005. He further submitted that the petitioner took oath on 10.03.2005 as a Member of Legislative Assembly and consequently made a Cabinet Minister. The petitioner on 15.03.2005, casted his vote on the floor of the House in support of the N.D.A. He further submitted that in a biennial conference, held on 29.03.2005 of the Jharkhand Party, attended 730 active members, 21 office bearers selected the petitioner- Anosh Ekka as the President. He also submitted that on 31.03.2005/01.04.2005, biennial conference held by Shri N.E. Horo resolving himself to be the President of the Party along with 29 other members. He further submitted that the petitioner has moved before this Court with a prayer for taking a decision on his candidature and by order -3- W.P.(C) No. 4123 of 2009 dated 20.05.2005, the High Court requested the Speaker of the Assembly to pass orders in relation to the petition filed against the petitioner under the provisions of 10th Schedule of the Constitution of India with regard to his disqualification. A show cause notice was issued to the petitioner by the Speaker on 06.07.2005 asking him to file his reply within 15 days. Some of the M.L.As. on 06.07.2005 intervened in the matter before the Speaker along with others and requested for disqualification of the petitioner and the said intervention petition was received by the petitioner on 11.08.2008. On 02.08.2005, the petitioner requested the Speaker of the Jharkhand Legislative Assembly to give two months time for filing the rejoinder, as the said petition was received by him belatedly. By letter dated 29.08.2005, the then Speaker directed the petitioner to file the reply to the petition filed against him on or before 15.09.2005, otherwise, ex-parte decision would be taken. On 15.09.2005, the petitioner filed the counter affidavit categorically stating that the 'Whip' issued by Shri N.E. Horo dated 01.03.2005 had been withdrawn and the same was not issued to him and nor received by him and stating that Shri Lal Ran Vijay Nath Shahdeo was the President, who had issued 'Whip' to support the N.D.A. On 25.10.2005, Shri N.E. Horo filed his reply before the Speaker refuting the charges made by the petitioner, Anosh Ekka.
4. Mr. Rajendra Krishna, learned counsel submitted that after issuance of 'Whip' on 01.03.2005 and its withdrawal on 02.03.2005, Late Shri N.E. Horo was summoned by Hon'ble the Governor and before him, he submitted his stand about the issuance of 'Whip' in support of U.P.A. The hearing on disqualification petition commenced on 28.01.2006. In the meantime, Government changed and in September, 2006, the petitioner supported the Government headed by independent Shri Madhu Kora. One of the MLA namely Shri Sumir Oraon on 04.09.2006 intervened and requested for passing of the final order on the disqualification of the petitioner and subsequently, the date was further fixed on 11.09.2006 and thereafter hearing was commenced. On 25.09.2008, Madhu Kora Government demits office and on 28.09.2008, Shri Shibu Soren was appointed as the Chief Minister of the State of Jharkhand and on 28.10.2008, further hearing on the disqualification was commenced and on the same day, the proceeding was concluded and the order was reserved. Learned counsel appearing for the petitioner -4- W.P.(C) No. 4123 of 2009 submitted that the order was delivered by the Hon'ble Speaker on 13.08.2009 by way of disqualifying the petitioner with effect from the date of the order i.e. on 13.08.2009.
5. In view of the above background, Mr. Rajendra Krishna, learned counsel appearing for the petitioner submitted that after the order was passed belatedly disqualifying the petitioner relying on the 10th Schedule of the Constitution of India is not in accordance with law. He submitted that the order is based on false and fabricated documents, without verifying the authenticity of the documents, which is against the mandate of law. He further submitted that the Speaker has erred in passing the impugned order, as he has not considered and dealt with the main issue as to whether Late N.E. Horo was in fact competent to issue 'Whip' in question or not. He further submitted that the Jharkhand Party never passed Resolution dated 01.03.2005 as such, there is no question of the petitioner acting contrary to the alleged 'Whip', which was never issued. He further submitted the order passed by the learned Speaker is unjust, mala fide, which cannot be sustained in the eyes of law. He submitted that the order was passed on influence by others, as there is no independent mind applied by the Speaker. He also submitted that the petitioner was the sole elected Member of the Jharkhand Party. He Further submitted that the second 'Whip' was issued on 09.03.2005 by Shri Lal Vijay Nath Shahdeo, who was the newly elected President of the Jharkhand Party after the suspension of Late N.E. Horo, in view of that he was acted, as such, the order passed by the Speaker is bad in law. He also submitted that the Speaker has not considered the 'Whip' dated 01.03.2005, which was already withdrawn on 02.03.2005 and second 'Whip' was issued on 09.03.2005, in view of that the petitioner has acted. He further submitted that the petition under Clause-2(b) of the 10th Schedule is maintainable only when the elected member casts or abstains from casting vote in such house contrary to any direction issued by the political party. He submitted that the petitioner has not casted any vote against the 'Whip' of the party. He further submitted that the writ petition is maintainable under Article 226 of the Constitution of India and he relied in the case of D. Sudhakar(2) & Ors. Versus D.N. Jeevaraju & Ors. reported in (2012) 2 SCC 708, wherein the Hon'ble Supreme Court in para-79 held as follows:-
-5- W.P.(C) No. 4123 of 2009"79. On the question of justiciability of the Speaker's order on account of the expression of finality in Para 2 of the Tenth Schedule to the Constitution, it is now well settled that such finality did not bar the jurisdiction of the superior courts under Articles 32, 226 and 136 of the Constitution to judicially review the order of the Speaker. Under Para 2 of the Tenth Schedule to the Constitution, the Speaker discharges quasi-judicial functions, which makes an order passed by him in such capacity, subject to judicial review."
6. Relying on this judgment and in view of the above facts, learned counsel appearing for the petitioner submitted that the impugned order may kindly be quashed.
7. Per contra, Mr. Anil Kumar, learned counsel appearing for the respondent No. 2 submitted that the petitioner has been disqualified under the 10th Schedule due to violating the party 'Whip' issued on 01.03.2005. He submitted that by the said 'Whip', the petitioner was directed to support the UPA Government, however, the petitioner disregarded this directive and joined the N.D.A. Government, contrary to the party's decision. He further submitted that this action was considered as quitting the party and attracting disqualification under the 10th Schedule of the Constitution of India. He also submitted that the learned Speaker has passed the said order after giving full opportunity of hearing and after appreciating all the documents and even the records to come to the final conclusion and no allegation has been imputed with respect to the violation of the principles of natural justice. He further submitted that the Hon'ble Speaker passed the said order based on the documents placed before him and there is no perversity as the proper reasoning and appreciation have been made while passing the order, which is evident from the order that the objections raised by the petitioner before the Hon'ble Speaker has duly been considered and thereafter the order has been passed. He also submitted that the petitioner's awareness of the party 'Whip' is evident from notice issued to him by the Hon'ble Speaker on 10.03.2005 and newspaper reports on 11.03.2005. Petitioner's disqualification resulted on account of violating the Party 'Whip' and leaving the party, leading to loss of Assembly membership. He submitted -6- W.P.(C) No. 4123 of 2009 that the learned Speaker found that the proceeding registered, prepared on 07.03.2005 in the meeting of the Working committee has been found to be manipulated. The Speaker further found that on 29.03.2005, the proceeding register shows 730 members were present in the meeting, but only 45 signatures were available and most important point that the signature of Mr. Anosh Ekka (the petitioner herein) at serial No. 125 appears to be false and fabricated as his signature does not tally with the signature available on affidavit or on other rejoinders. By way of referring paras-45 and 47 of the order of the Speaker, he submits that the false and fabricated documents, evidence and irregularities were discussed therein. He further submitted that the entire proceeding registers as well as documents produced by the petitioner were found to be fabricated, false and manipulated. He further submitted that the petitioner took oath in the N.D.A. Government contrary to the decision of the party and the petitioner again switched over to Madhu Koda led U.P.A. Government in September, 2006 to attain the Ministerial position. He further submitted that the petitioner failed to establish before the Speaker that the 'Whip' of Shri Horo was his suo motu decision and was not supported by the Central Working Committee of the party.
8. Learned counsel appearing for the respondent No. 2 submitted that in view of the above, the 10th Schedule of the Constitution of India was violated. He further submitted that the affidavit filed on 11.09.2006 in favour of another individual was previously filed in favour of the petitioner's rival on 03.05.2005. On these grounds, he submitted that the sufficient grounds are there, which has been dealt by the Hon'ble Speaker and order is in teeth of compliance of 10th Schedule.
9. Learned counsel appearing for the respondent No. 2 has submitted that the Speaker is empowered to look into the party position of the political party, as has been held in the case of Subhash Desai Versus Governor of Maharashtra, reported in (2023) SCC OnLine (SC) 607, where in paras-117, 118, 119, 177, 178 and 179, the Hon'ble Supreme Court has held as follows:-
"117. Rule 3(4) stipulates that the Leader of the legislature party must furnish the updated information if there has been a change in the information furnished under Rule 3(1). Rule 3(5) states that if a member votes or abstains from voting in the assembly contrary to the -7- W.P.(C) No. 4123 of 2009 direction of the political party without the prior permission of the political party, the Leader of the legislature Party may within thirty days of such voting or abstention communicate to the Speaker as to whether such voting or abstention has been condoned by the political party. The rule also stipulates that the Leader must inform the Speaker even if they voted contrary to the direction of the political party. The 1986 Rules neither use nor define the term ''Whip''.
118. The term ''Whip'' is defined in the Act of 1956. Section 2 of the Act of 1956 provides that an MLA shall not be disqualified for holding the offices stipulated in Schedule I. Clause 23 of Schedule I mentions the offices of Chief 'Whip' or 'Whip' in the Maharashtra State Legislature. The explanation to this clause defines a 'Whip' as follows:
"Explanation.- (1) The expression "Chief 'Whip'" or "'Whip'", in relation to the Maharashtra Legislative Assembly, means that Member of the House who is, for the time being, declared by the party forming the Government to be the Chief 'Whip' or 'Whip' in that House and recognized as such by the Speaker; and includes a member of the House, who, is for the time being, declared as such by the party having at-least ten percent of the total number of the House and recognized as such by the Speaker; and (2) The expression "Chief 'Whip'" or "'Whip'", in relation to the Maharashtra Legislative Council, means that member of the House who is, for the time being, declared by the party forming the Government to be the Chief 'Whip' or 'Whip' in the House and recognized as such by the Chairman; and includes a member of the House, who, is for the time being, declared as such by the party having at-least ten percent of the total members of the House and recognized as such by the Chairman."
119. On a literal interpretation of the provisions of the Tenth Schedule, the 1986 Rules and the Act of 1956, the direction to vote or abstain from voting arises from the political party and not the legislature party for the following reasons:
a. Paragraph 2(1)(b) of the Tenth Schedule provides that the direction to vote or abstain -8- W.P.(C) No. 4123 of 2009 from voting must be issued by the political party or by "any person or authority authorised by it", with the word 'it' referring to the political party. The provision states that prior permission must have been received from the political party if the member wants to vote contrary to the direction issued, and the political party must condone such action within fifteen days. The provisions of the Tenth Schedule stipulate in unequivocal terms that the direction must come from the political party and not the legislature party. The distinction between political party and legislature party is made in the definition clause in Paragraph 1. There are no two ways about it. The Tenth Schedule would become unworkable if the term 'political party' is read as the 'legislature party.' A clear demarcation is made between political party and legislature party for the purpose of a merger under Paragraph 4, which stipulates that two-thirds of the members of the legislature party must have agreed to a merger of the original political party before such a merger can be deemed to have taken place. To read the term 'political party' as 'legislature party' would be contrary to the plain language of the Tenth Schedule; b. It is an accepted position that the 'Whip' communicates the directions of the party to its members. The phrase ''Whip'' is neither used in the Tenth Schedule nor in the 1986 Rules. The phrase finds a mention in the Act of 1956 as one of the offices that would not be covered within the meaning of 'office of profit.' The explanation to Clause 23 of Schedule I in the Act of 1956 states that the Chief 'Whip' is declared by the party forming the Government. The reference to 'party' in the explanation clause means political party and not legislature party because the term 'party' is used to depict political party in common parlance; and c. The respondents urge that the 'Whip' is chosen by the legislature party because Rule 3(1)(a) of the 1986 Rules provides that the Leader shall inform the Speaker of the names and designations of the members who have been authorised by it for communicating with the Speaker for the purposes of these rules. This argument is erroneous. The phrase 'any other member who has been authorised to -9- W.P.(C) No. 4123 of 2009 communicate with the Speaker' in Rule 3(1)(a) must be read with the definition of 'Leader' under Rule 2(f), which includes such other member authorised to act in the absence of the Leader or discharge the functions of the Leader for the purpose of the Rules. When read together, it is evident that Rule 3(1)(a) refers to the furnishing of information about members who have been authorised to act as the Leader in the absence of the Leader themselves. The 'Whip' interacts with the members of the legislature party to communicate the direction(s) of the political party. Rule 3(5) which prescribes that the Leader has to inform the Speaker if the political party has condoned the prohibitory actions of the members of the legislature party clearly establishes that it is only the Leader who communicates with the Speaker for the purposes of the 1986 Rules. This is all the more evident since Rule 3(5) requires the Leader to inform the Speaker in a situation where the Leader votes or abstains from voting contrary to the direction of the political party. Under the 1986 Rules, the 'Whip' is not the designated authority to file disqualification petitions. Rule 6 provides that a petition for disqualification can be filed by any member of the Maharashtra Legislative Assembly. The argument of the respondents that the legislature party appoints the 'Whip' fails, so far as it is based on the provisions of the 1986 Rules discussed in this paragraph.
177. Regardless of the defence available to members who face disqualification proceedings, the Speaker may be called upon to determine who the "real" political party is while adjudicating disqualification petitions under Paragraph 2(1)(a) where two or more factions of the political or legislature party have arisen.
The effect of the deletion of Paragraph 3 is that both factions cannot be considered to constitute the original political party. In order to determine which (if any) of the members of the party have voluntarily given up membership of the political party under Paragraph 2(1)(a), it is necessary to first determine which of the factions constitute the political party. This determination is a prima facie determination and will not impact any other proceedings -10- W.P.(C) No. 4123 of 2009 including the proceedings under Paragraph 15 of the Symbols Order.
178. In arriving at their decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party. If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the ECI before the rival factions emerged. In other words, the Speaker must consider the version of the party constitution which was submitted to the ECI with the consent of both factions. This will obviate a situation where both factions attempt to amend the constitution to serve their own ends. Further, the Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly. This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue.
179. The deletion of Paragraph 3 impacts the proceedings under Paragraph 2(1)(b) as well. When there are two 'Whip's appointed by two or more factions of the political party, the Speaker, as held in the preceding section of the judgement, decides which of the two 'Whip's represents the political party. Thus, the adjudication of the Speaker on whether a member must be disqualified under Paragraph 2(1)(b) would also depend on the decision of the Speaker recognising one of the two (or more) 'Whip's. We accordingly answer the question referred to us as noted in Paragraph 32(f) of this judgment."
10. He submitted that the judicial review is limited in view of the several judgments and only on the ground of infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity, judicial review can be held and to buttress his argument, he relied in the case of Rajendra Singh Rana & Ors. Versus Swami Prasad Maurya & Ors., reported in (2007) 4 SCC 270, where in paras-33 and 34, the Hon'ble Supreme Court has held as follows:-
-11- W.P.(C) No. 4123 of 2009"33. 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.
34. As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the 'Whip' issued to him.
Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance of the 'Whip'. The fact that a decision in that regard may be taken in the case of voluntary giving up by the Speaker 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 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 -12- W.P.(C) No. 4123 of 2009 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 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."
11. On the same line, he also relied in the case of Mayawati Versus Markandeya Chand & Ors., reported in (1998) 7 SCC 517, where in paras-27, 28, 29 and 30, the Hon'ble Apex Court has held as follows:-
"27. The Speaker has accepted the plea of the respondents that there was a split as envisaged in Paragraph 3 of the Xth Schedule. the said finding can be subjected to judicial scrutiny only in the limited sphere indicated in Kihoto Hollohan (supra) viz. whether "the infirmities are based on violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity." This is a case where appellant did not succeed in showing a case of mala fides or non-compliance with the rules of natural justice as for the conclusion arrived at by the Speaker. As pointed out earlier the main endeavour of the -13- W.P.(C) No. 4123 of 2009 learned counsel was to show that the finding of the Speaker is vitiated by perversity in the sense that the conclusion is so unreasonable that no tribunal would have arrived at it on the given facts.
28. It is suggested on behalf of the respondents that if the conclusion of the Speaker is based on some materials it is immune from judicial interference because of two broad restrictions. First is the extremely limited scope of judicial scrutiny which is permitted by law as indicated by the Constitution Bench in Kihoto Hollohan. Second is the positional height of the Speaker as a constitutional functionary upon whom the jurisdiction is conferred to determine the disputes under the Xth Schedule. Shri Ashok Desai, learned senior counsel contended for the extreme position that if the conclusion reached by the said functionary is a possible conclusion it stands insulated from any outside interference including by judicial exercise.
29. The said extreme proposition may lead to the situation that, no matter, however illegal the order may be, it cannot be touched if its author is the Speaker. I am unable to concede such an immunity to any constitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is whether the conclusion or the finding made by the Speaker is so unreasonable or so unconscionable that no tribunal should have arrived at it on the given materials.
30. Parameters for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. It was perhaps that approach which made Lord Hailsham to make his quaint comment that two reasonable persons can reach diametrically opposite conclusion on the same set of facts without either of them forfeiting the credential to be reasonable. However, the test of perversity has now bogged down to this: No conclusion -14- W.P.(C) No. 4123 of 2009 can be dubbed as perverse unless the unreasonableness is of such a dimension that no authority vested with the jurisdiction would have come to such a conclusion. Even the oft quoted "Wednesbury principle of reasonableness" as propounded by Lord Greene MR (Picture House vs. Wednesbury Corporation - 1947 (2 all England Report 680) has not changed the said approach."
12. On the point of conduct and on the procedure of disqualification proceedings, learned counsel appearing for the respondent No. 2 has relied in the case of Mahachandra Prasad Singh (Dr.) Versus Chairman, Bihar Legislative Council, reported in (2004) 8 SCC 747, where in paras-5, 5.1, 6, 7, 8, 8.1, 9 and 10 thereof, the Hon'ble Supreme Court has held as follows:-
"5. Keeping in view the recommendations of the Committee on Defections several Bills were introduced for amending the Constitution, but they lapsed. Finally, a Bill which was enacted into the Constitution (Fifty-second Amendment) Act, 1985 was passed by which the Tenth Schedule was added with effect from 1-3-1985. The Statement of Objects and Reasons appended to the Bill read as under:
"1. 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.
2. The Bill seeks to amend the Constitution to provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat would be -15- W.P.(C) No. 4123 of 2009 disqualified on the ground of defection if he voluntarily relinquishes his membership of such political party or votes or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seat shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as the presiding officer of a House to sever his connections with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.
3. The Bill seeks to achieve the above objects."
5.1. The provisions of the Tenth Schedule to the Constitution which are relevant for the decision of the present case are being reproduced below:
"1. Interpretation.--In this Schedule, unless the context otherwise requires,--
(a) 'House' means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the legislature of a State;
(b) 'legislature party', in relation to a member of a House belonging to any political party in accordance with the provisions of -16- W.P.(C) No. 4123 of 2009 Paragraph 2 or Paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;
(c) '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;
(d) 'paragraph' means a paragraph of this Schedule.
2. Disqualification on ground of defection.--
(1) Subject to the provisions of Paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House--
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority, and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
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) ***(omitted as not relevant) (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)-(4) ***(omitted as not relevant) ***
6. Decision on questions as to disqualification on ground of defection.--(1) If any question arises as to whether a member of a House has -17- W.P.(C) No. 4123 of 2009 become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the legislature of a State within the meaning of Article 212.
7. Bar of jurisdiction of courts.--
Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule."
6. The underlying object and the purpose which the Tenth Schedule seeks to achieve were explained as under in Kihoto Hollohan [1992 Supp (2) SCC 651] and it will be useful to keep them in mind while interpreting its provisions:
(SCC p. 671, para 13) "13. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, -18- W.P.(C) No. 4123 of 2009 changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an independent candidate and wishes to join a political party after the election."
7. Paragraph 2 of the Tenth Schedule lays down the contingencies under which a member of the House belonging to any political party shall be disqualified for being a member of the House and they are enumerated in sub-paras (1), (2) and (3). Sub-para (2) deals with a situation where a member of the House elected as an independent candidate joins any political party after such election and sub-para (3) deals with a situation where a nominated member of the House joins any political party after the expiry of six months from the date on which he takes a seat. Sub-para (1) deals with a situation where a member of a House belonging to any political party voluntarily gives up his membership of such political party. It also deals with a situation where he votes or abstains from voting in the House, contrary to any direction issued by the political party to which he belongs, without obtaining prior permission of such political party and such voting or abstention has not been condoned by such political party within fifteen days from the said voting or abstention. The scrutiny of the provisions of sub-para (2) would show that a member of a House belonging to any political party becomes disqualified for being a member of the House if he does some positive act which may be either voluntarily giving up his membership of the political party to which he belongs or voting or abstention from voting contrary to any direction issued by the political party to which he belongs and in the case of an independent or nominated member, on his joining a political party. On the plain language of Paragraph 2, the disqualification comes into force or becomes effective on the happening of the event.
-19- W.P.(C) No. 4123 of 2009Paragraph 4 is in the nature of an exception to Paragraph 2 and provides for certain contingencies when the rule of disqualification will not apply in the case of merger of political parties. Paragraph 6 says that where any question arises as to whether a member of the House has become subject to disqualification under the Schedule, the same shall be referred for the decision of the Chairman or, as the case may be, the Speaker of the House and his decision shall be final. Therefore, the final authority to take a decision on the question of disqualification of a member of the House vests with the Chairman or the Speaker of the House. It is to be noted that the Tenth Schedule does not confer any discretion on the Chairman or Speaker of the House. Their role is only in the domain of ascertaining the relevant facts. Once the facts gathered or placed show that a member of the House has done any such act which comes within the purview of sub-
paragraph (1), (2) or (3) of Paragraph 2 of the Tenth Schedule, the disqualification will apply and the Chairman or the Speaker of the House will have to make a decision to that effect.
8. Paragraph 6 of the Tenth Schedule attaches finality to the decision of the Chairman or the Speaker of the House on a question as to whether a member of a House has become subject to disqualification under the Schedule. Paragraph 7 excludes the jurisdiction of the court in respect of any matter connected with disqualification of a member of a House under the Schedule, as it says that notwithstanding anything in the Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. This provision being in the Constitution itself, unlike a statutory provision, it affects the power of judicial review of the High Court and the Supreme Court under Articles 226, 227 and 136 of the Constitution. Further, in view of the provision contained in sub-paragraph (2) of Paragraph 6 the proceedings in relation to -20- W.P.(C) No. 4123 of 2009 disqualification of a member of the House shall be deemed to be proceedings in Parliament within the meaning of Article 122 or in the legislature of a State within the meaning of Article 212, as the case may be. These are identical provisions which provide that validity of any proceedings in Parliament or legislature shall not be called in question on the ground of any alleged irregularity in procedure. The vires of the Tenth Schedule was challenged on several grounds including the ground that the power of judicial review being part of the basic structure of the Constitution, cannot be taken away by a constitutional amendment. The issue was considered by a Constitution Bench in Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] where Venkatachaliah, J. speaking for the majority held as under in para 111 of the Report: (SCC p. 711) "111. In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non- justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 112(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case [Under Article 143, -21- W.P.(C) No. 4123 of 2009 Constitution of India, In re, AIR 1965 SC 745 :
(1965) 1 SCR 413] to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words 'be deemed to be proceedings in Parliament' or 'proceedings in the legislature of a State' confines the scope of the fiction accordingly."
8.1. This authoritative pronouncement clearly lays down that the decision of the Chairman or the Speaker of the House can be challenged on very limited grounds, namely, violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity and further a mere irregularity in procedure can have no bearing on the decision.
9. The question as to when a member of a House belonging to a political party can be said to have given up his membership of such political party has been considered in two later decisions of this Court. In Ravi S. Naik v. Union of India [1994 Supp (2) SCC 641] two MLAs, Bandekar and Chopdekar, had been elected on the ticket of MGP Party, but they accompanied the leader of Congress (I) Legislative Party when he met the Governor to show that he had the support of 20 MLAs. On this conduct alone, the Speaker held that they had given up membership of MGP Party and disqualified them for being a member of the House. The decision of the Speaker under which he held that the two MLAs shall be disqualified for being a member of the House under Paragraph 2(1)(a) of the Schedule was upheld by this Court. The scope and amplitude of Paragraph 2(1)(a) was explained as under in para 11 of the Report: (SCC p. 649) "11. ... The said paragraph provides for disqualification of a member of a House belonging to a political party 'if he has voluntarily given up his membership of such political party'. The words 'voluntarily given up his membership' are not synonymous with 'resignation' and have a wider connotation. A -22- W.P.(C) No. 4123 of 2009 person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs."
10. In G. Viswanathan v. Hon'ble Speaker T.N. Legislative Assembly [(1996) 2 SCC 353] the appellants had been elected as Members of the Legislative Assembly in 1991 as candidates of AIADMK Party but they were expelled from the said party on 8-1-1994. The Speaker declared them as unattached members of the Assembly on 16-3-1994. Sometime thereafter, an MLA informed the Speaker that the appellants had joined MDMK Party and, therefore, they should be disqualified from membership of the Assembly. After calling for their explanation the Speaker held that they had incurred the disqualification under Paragraph 2(1)(a) of the Tenth Schedule and had ceased to be members of the Assembly. The main contention raised on behalf of the appellants was that Paragraph 2(1)(a) of the Tenth Schedule comes into play only to disqualify a member who voluntarily gives up his membership of that political party that had set him up as a candidate, and not when he is expelled from the party and declared "unattached" i.e. not belonging to any political party. It was further contended that Paragraph 2(a) will apply only when a member himself of his own volition gives up his membership of the party. Any member thrown out will cease to be a member of the party that had set him up as a candidate and if he joins another party thereafter, it will not be a case of "voluntary giving up his membership of the political party"
that had set him up as a candidate for the election. It was held that if the contention urged on behalf of the appellants is accepted, it will defeat the very purpose for which the Tenth Schedule came to be introduced and would fail to suppress the mischief, namely, breach of faith -23- W.P.(C) No. 4123 of 2009 of the electorate. The principle on which such a view was taken was explained as under in para
11 of the Report: (SCC p. 361) "11. It appears that since the explanation to Paragraph 2(1) of the Tenth Schedule provides that 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, such person so set up as a candidate and elected as a member, shall continue to belong to that party. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as 'unattached'. The further question is when does a person 'voluntarily give up' his membership of such political party, as provided in Para 2(1)(a)? The act of voluntarily giving up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as a candidate and got elected, joins another (new) party, it will certainly amount to his voluntarily giving up the membership of the political party which had set him up as a candidate for election as such member."
13. Relying on these judgments and in view of the above facts, learned counsel appearing for the respondent No. 2 submitted that no case of interference is made out and this petition may kindly be dismissed.
14. In view of the above submissions of learned counsel appearing for the parties, the court has gone through the materials available on record including the annexures contained in the writ petition as well as the counter affidavit and finds that admittedly, the petitioner had contested election for Membership of the Legislative Assembly from Kolebira Assembly Constituency as a candidate from the Jharkhand party and was declared elected vide order of the Returning Officer dated 27.02.2005. On 01.03.2005, Sri N.E. Horo issued 'Whip', directing the -24- W.P.(C) No. 4123 of 2009 petitioner to support U.P.A. Government. On 02.03.2005, Shri N.E. Horo withdrawn letter dated 01.03.2005, issuing 'Whip' directing the petitioner to support U.P.A. and on the even date, another letter had been issued by Shri N.E. Horo stating that the earlier letter dated 02.03.2005 was obtained under duress. On 05.03.2005, the Party resolved for suspending Shri Lal Ran Vijay Nath Shahdeo and two others Members of the party for six years. Shri N.E. Horo was condemned in the meeting of the Central Working Committee and the District Committee Members on 06.03.2005 and Shri N.E. Horo was suspended from the party on 07.03.2005. Shri Ashok Kumar Bhagat, Central General Secretary, informed the Chief Election Commissioner about the suspension of Shri N.E. Horo on 09.03.2005. Shri Lal Ran Vijay Nath Shahdeo on 09.03.2005 after selected as New Party President, issued 'Whip' to the petitioner to support the N.D.A. On 09.03.2005 itself, N.E. Horo wrote a letter to the Protem Speaker praying that action be taken against the petitioner (Anosh Ekka) as per the 10th Schedule of the Constitution of India for not following the party resolution dated 01.03.2005. The petitioner took oath on 10.03.2005 as a Member of Legislative Assembly and consequently made a Cabinet Minister. The petitioner on 15.03.2005, casted his vote on the floor of the House in support of the N.D.A. In a biennial conference, held on 29.03.2005 of the Jharkhand Party, attended 730 active members, 21 office bearers selected the petitioner-Anosh Ekka was elected as the President. On 31.03.2005/01.04.2005, biennial conference held by Shri N.E. Horo resolving himself to be the President of the Party along with 29 other members. The petitioner has moved before this Court with a prayer for taking a decision on his candidature and by order dated 20.05.2005, the High Court requested the Speaker of the Assembly to pass orders in relation to the petition filed against the petitioner under the provisions of 10th Schedule of the Constitution of India with regard to his disqualification. A show cause notice was issued to the petitioner by the Speaker on 06.07.2005 asking him to file his reply within 15 days. Some of the M.L.As. on 06.07.2005 intervened in the matter before the Speaker along with others and requested for disqualification of the petitioner and the said intervention petition was received by the petitioner on 11.08.2008. On 02.08.2005, the petitioner requested the Speaker of the Jharkhand Legislative Assembly to give two -25- W.P.(C) No. 4123 of 2009 months time for filing the rejoinder, as the said petition was received by him belatedly. By letter dated 29.08.2005, the then Speaker directed the petitioner to file the reply to the petition filed against him on or before 15.09.2005 and he observed otherwise, ex-parte decision would be taken. On 15.09.2005, the petitioner filed the counter affidavit categorically stating that the 'Whip' issued by Shri N.E. Horo dated 01.03.2005 had been withdrawn. The same was not issued to him and nor received by him and stating that Shri Lal Ran Vijay Nath Shahdeo was the President, who had issued 'Whip' to support the N.D.A. On 25.10.2005, Shri N.E. Horo filed his reply before the Speaker refuting the charges made by the petitioner, Anosh Ekka. After issuance of 'Whip' on 01.03.2005 and its withdrawal on 02.03.2005, Late Shri N.E. Horo was summoned by the Governor and before him, he submitted his stand about the issuance of 'Whip' in support of U.P.A. The hearing on disqualification petition commenced on 28.01.2006. In the meantime, Government changed and in September, 2006, the petitioner supported the Government headed by independent Shri Madhu Kora. One of the MLA namely Shri Sumir Oraon on 04.09.2006 intervened and requested for passing of the final order on the disqualification of the petitioner and subsequently, the date was further fixed on 11.09.2006 and thereafter hearing was commenced. On 25.09.2008, Madhu Kora Government demits office and on 28.09.2008, Shri Shibu Soren was appointed as the Chief Minister of the State of Jharkhand and on 28.10.2008, further hearing on the disqualification was commenced and on the same day, the proceeding was concluded and the order was reserved. The order was pronounced by the Speaker on 13.08.2009 by way of disqualifying the petitioner with effect from the date of the order i.e. on 13.08.2009.
15. In view of these facts, it has come into the order of the Speaker that it is crystal clear that the petitioner and others have been provided full opportunity of hearing to defend their case and thereafter the Speaker has been pleased to pass the said order.
16. Undoubtedly, the Tenth Schedule was inserted in the Constitution of India by the Fifty-second amendment in order to achieve certain salutary goal: one of the goals was to combat the evil of political defections which undermine the very foundation of our democracy. Keeping in mind this national and constitutional goal, the Tenth Schedule -26- W.P.(C) No. 4123 of 2009 not only prescribes the circumstances, which would entail disqualification of a legislator, but also bestows a responsibility on the high ranking office of the Speaker of the Legislative Assembly, or the Chairman of the House to disqualify the Legislator. Therefore, a constitutional duty has been imposed upon the Hon'ble Speaker to decide the disqualification petition as expeditiously as possible, and certainly within a reasonable time.
17. For ready reference, the 10th Schedule and Articles 102 and 191 of the Constitution of India are quoted hereinbelow:-
[TENTH SCHEDULE] [Articles 102(2) and 191(2)] "Provisions as to disqualification on ground of defection
1.Interpretation.--In this Schedule, unless the context otherwise requires,--
(a) "House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;
(b) "legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or 2*** paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;
(c) "original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2;
(d) "paragraph" means a paragraph of this Schedule.
2. Disqualification on ground of defection.--(1) Subject to the provisions of 3 [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House--
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has -27- W.P.(C) No. 4123 of 2009 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. (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 or, as the case may be, article 188. (4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fiftysecond Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,--
(i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who has been -28- W.P.(C) No. 4123 of 2009 elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub- paragraph (3) of this paragraph.
*****
4. Disqualification on ground of defection not to apply in case of merger.--(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party--
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, 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 sub-paragraph. (2) For the purposes of sub- paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
5. Exemption.--Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,--
(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office -29- W.P.(C) No. 4123 of 2009 thereafter, rejoin that political party or become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.
6. Decision on questions as to disqualification on ground of defection.--(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.
*7. Bar of jurisdiction of courts.--
Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
8. Rules.--(1) Subject to the provisions of sub- paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for--
(a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong;
(b) the report which the leader of a legislature party in relation to a member of a -30- W.P.(C) No. 4123 of 2009 House shall furnish with regard to any condonation of the nature referred to in clause
(b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished;
(c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to in subparagraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.]"
[Article 102] "102. Disqualifications for membership.--(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament--
[(a) if he holds any office of profit under the Government of India or the Government of any -31- W.P.(C) No. 4123 of 2009 State, other than an office declared by Parliament by law not to disqualify its holder;]
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
[Explanation.--For the purposes of this clause] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State. 3 [(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.]"
[Article 191] "191. Disqualifications for membership.--(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-- [(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;]
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
[Explanation.--For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State. [(2) A person shall be disqualified for being a member of the Legislative Assembly or -32- W.P.(C) No. 4123 of 2009 Legislative Council of a State if he is so disqualified under the Tenth Schedule.]"
18. In view of the above provisions, it is crystal clear that the 10th Schedule does not provide any additional ground of disqualification and for adjudication of disputed disqualification, seek to create a non- justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. Paragraph 6(1) of the 10th Schedule to the extent it seeks to impart finality to the decision of Speaker or Chairman is found to be valid. But the concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on constitutional mandates, mala fides, non- compliance with rules of natural justice and perversity are concerned and in view of that the Speaker / Chairman while exercising powers and charging functions under the 10th Schedule act as Tribunal adjudicating rights and obligations under the 10th Schedule and their decisions in that capacity are amenable to judicial review.
19. Reference may be made to the case of Shrimanth Balasaheb Patil Versus Speaker, Karnataka Legislative Assembly & Ors., which was decided along with other analogues cases, reported in (2020) 2 SCC 595, where the Hon'ble Supreme Court in paras-128 to 136 and 142 to 144, 153 and 190.9 held as follows:-
"128. The Tenth Schedule of the Constitution while dealing with disqualification on account of defection, does not specify the consequences or period of such disqualification. In fact, the vacancy which results from the disqualification is provided under Article 190(3) of the Constitution. The scope of the Speaker's powers on disqualification requires us to examine the other provisions of the Constitution and relevant statutory provisions.
129. Article 191 of the Constitution provides for disqualification from the membership of the Legislative Assembly or Legislative Council of a State generally. Article 191(1) of the Constitution is a general provision providing for the disqualification from the membership of the Legislative Assembly or the Legislative Council of a State on the grounds mentioned therein. Article 191(2) of the Constitution -33- W.P.(C) No. 4123 of 2009 specifically provides that a person disqualified under the Tenth Schedule is disqualified for being a member. It is relevant to note that Article 191(2) of the Constitution, like the Tenth Schedule, does not provide that the "disqualification" is to operate for a particular period or duration.
130. The contrast in phraseology between Article 191(1) and Article 191(2) of the Constitution is crucial for deciding the present controversy. Article 191(1) of the Constitution provides that a person disqualified under any one of the clauses of Article 191(1) is disqualified both "for being chosen as" and "for being" a member of the house. In contrast, Article 191(2) only uses the phrase "for being a member", which is the language used in paragraph 2 of the Tenth Schedule. The exclusion of the phrase "for being chosen as" a member in Article 191(2) of the Constitution suggests that the disqualification under the Tenth Schedule is qualitatively and constitutionally different from the other types of disqualification that are provided for under Article 191(1) of the Constitution. The phrase "for being chosen as" has a specific connotation, meaning that a person cannot become a member of the House, if suffering from a disqualification under Article 191(1) of the Constitution. At the same time, the absence of these words in Article 191(2) of the Constitution suggests that a person who is no longer a member due to disqualification under the Tenth Schedule of the Constitution does not suffer from the additional infirmity of not being allowed to become a member subsequently. Therefore, such a person is not barred from contesting elections.
131. This interpretation is further supported by the language employed in Section 36(2) of the Representation of the People Act, 1951, which provides for when a returning officer may reject the nomination of a candidate. Section 36(2)(a), of the Representation of the People Act, 1951 states that the nomination may be rejected if a candidate is disqualified "for being chosen" to fill the seat under Article 191 of the -34- W.P.(C) No. 4123 of 2009 Constitution, echoing the language employed in Article 191(1), and not Article 191(2) of the Constitution.
132. Apart from the above, Articles 164(1B) and 361B of the Constitution, which were inserted by the 91 st Constitutional Amendment, also show that disqualification under the Tenth Schedule does not bar a person from contesting elections. Both the above constitutional provisions specifically indicate the outer period for which the consequences indicated therein would extend, which is, either till the end of the term or till the disqualified member is elected, whichever is earlier. The fact that the phrase "whichever is earlier" is used in both these provisions, indicates that the Constitution contemplates a situation where an election takes place prior to the end of the term of the House. Further, the term "election" as used in the above provisions has not been constrained by any other word, which strengthens the view that a member who has been disqualified under the Tenth Schedule is not barred from contesting elections.
133. Parliament by way of an enactment under Article 191(1)(e) read with Entry 72 of the Union List in the Seventh Schedule can make a law providing for disqualifications of persons from contesting elections. It is in exercise of this power that the Parliament enacted The Representation of the People Act, 1951. The Preamble to the aforementioned Act makes it evident that it was enacted for the purpose of "providing qualifications and disqualifications for membership" to the Houses of Legislature.
"An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections." (emphasis supplied)
134. Chapter II of Part II of the Representation of the People Act, 1951 provides for the -35- W.P.(C) No. 4123 of 2009 qualification for membership of the State Legislature while Chapter III vide Sections 7 to 11 provides for disqualification for membership of the Legislature. These sections not only provide for the event of disqualification, but also provide for the specific periods for which such disqualification shall operate. For instance, under Section 8 of the Representation of the People Act, 1951, different periods of disqualification are provided depending on the specific offence an individual is convicted under.
135. However, the provisions do not provide for and deal with disqualification under the Tenth Schedule. Clearly, Section 36 of the Representation of the People Act, 1951 also does not contemplate such disqualification. Therefore, neither under the Constitution nor under the statutory scheme is it contemplated that disqualification under the Tenth Schedule would operate as a bar for contesting re- elections. The language of clauses (1) and (2) of Article 191, Articles 164(1B) and 361B are contrary to the contention of the Respondents.
136. Given this position, we conclude that the Speaker does not have any explicit power to specify the period of disqualification under the Tenth Schedule or bar a member from contesting elections after disqualification until the end of the term of the Legislative Assembly.
142. It is the contention of the Respondents that the Court should consider desirability of having a stricter model of disqualification wherein a person who has jumped the party lines should not be encouraged and should be punished with severe penal consequences for attempting to do so. Further, learned Senior Counsel, Mr. Kapil Sibal, has termed the actions of the Petitioners as a constitutional sin.
143. We do not subscribe to such an extreme stand taken by the learned Senior Counsel, considering the fact that such extreme stand could have a chilling effect on legitimate dissent. In any case, such a change in the policy cannot be looked into by this Court, as the same squarely falls within the legislative forte. Any attempt to interfere is better termed as -36- W.P.(C) No. 4123 of 2009 reconstruction, which falls beyond the scope of legal interpretation by the Courts. [refer to G. Narayanaswami case (supra)]
144. It is clear that the power to prescribe qualifications and disqualifications for membership to the State Legislature must be specifically provided for under the Constitution or by the Parliament by enacting a law. Since neither the Constitution nor any Act provides for defection to another party as a bar from contesting further elections, reading such a bar into the nebulous concept of the inherent powers of the Speaker is impermissible and invalid. Without commenting on whether the Speaker has inherent powers or not, a Constitution Bench of this Court in the Raja Ram Pal case (supra), while holding that certain unwritten powers inure with the Parliament under Article 105(3) of the Constitution, went on to observe even in case of expulsion, the expelled candidate is not barred from contesting reelection.
115. In the end we need to note that the Speaker, being a neutral person, is expected to act independently while conducting the proceedings of the house or adjudication of any petitions. The constitutional responsibility endowed upon him has to be scrupulously followed. His political affiliations cannot come in the way of adjudication. If Speaker is not able to disassociate from his political party and behaves contrary to the spirit of the neutrality and independence, such person does not deserve to be reposed with public trust and confidence.
190.9. There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments. In these circumstances, there is need to consider strengthening certain aspects, so that such undemocratic practices are discouraged and checked.
20. In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to -37- W.P.(C) No. 4123 of 2009 the constitutional intendment and the status of the repository of the adjudicating power of Speaker / Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker / Chairman and a "quia timet" action would not be permissible nor would interference be permissible at an interlocutory stage of the proceedings. That is well settled. Exception will however have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceeding and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequences. It is inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and within the non-justiciable legislative area. The fiction in paragraph 6(2) indeed places it in the first clause of Articles 122 or 212 of the Constitution of India 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 expressions in Art. 122(1) and 212(1) respectively, this attracts an immunity from mere irregularities of procedure. That apart, even after 1985 when the Tenth Schedule was made effective, the Constitution did not evince any intention to invoke Articles 122 or 212 in the conduct or 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 the approval of the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no 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. The Election Commission is authorised to remove or reduce the period of disqualification. Detention of a person under any law pertaining to preventive detention is not a disqualification for membership of Parliament. In Kits Hollaham v. Zachilhu, reported in 1992 (Supp-2) SCC 651, it was held that the provision regarding disqualification on the ground of defection is constitutionally valid. It was observed that the -38- W.P.(C) No. 4123 of 2009 provisions are salutary and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections. The anti-defection law seeks to recognize the practical need to place the properties of political and personal conduct above certain theoretical assumptions, which in reality have fallen into a morass of personal and political degradation. Anti-defection law is statutory variant of its moral principles and justification underlying the power to recall. Unprincipled defection is a political and social evil. In the case of G. Vishwanathan Versus Hon'ble Speaker, Tamil Nadu Assembly, reported in (1996) 2 SCC 353, it was held that if the person is belonging to a political party that had set him as a candidate gets elected to the House and thereafter joins another political party for whatever reasons, either because of his expulsion from the party or otherwise, he voluntarily gives up his membership of the political party and incurs the disqualification. Labelling a member as 'unattached' finds no place nor has any recognition in the 10th Schedule.
21. In view of the above, it is crystal clear that the judicial review is maintainable only to the extent if it is proved that there is infirmities in the proceeding, mala fides, non-compliance with rules of natural justice and if the order is found to be perverse.
22. The ruling party 'Whip' has "to make a House and to keep a House", which means that it is his responsibility to ensure a quorum throughout the sitting of the House by keeping the members within the hearing range of the division bells, particularly when some important business is under consideration. His most important job is ensuring the presence of members and more particularly marshalling his party forces on important issues. 'Whip's are said to be of three types-one-line, two- line and three- line 'Whip's. These are so-called by the number of lines by which their text is underlined. The number of lines is indicative of the importance and urgency attached to a particular measure before the House. The three-line 'Whip' indicates most important business and a division. A member must obey it and attend the House, it is mandatory and one can disobey it only at one's peril. Disregard of a three-line 'Whip' is almost certainly likely to invite serious disciplinary action.
23. Coming to the facts of the present case, it is an admitted fact that the 'Whip' was there and the Speaker has found that in the -39- W.P.(C) No. 4123 of 2009 proceeding, the proceeding register was prepared on 07.03.2005 in the meeting of the Working committee, which has been found to be manipulated. The Speaker further found that on 29.03.2005, the proceeding register shows 730 members were present in the meeting, but only 45 signatures were available and most important point that the signature of Mr. Anosh Ekka (the petitioner herein) at Serial No. 125 appears to be false and fabricated as his signature does not tally with the signature available on affidavit or on other rejoinders. Looking into the above finding of the Speaker, the court finds that on a very ground, the said order has been passed by the Speaker and the court also finds that there is no infirmities based on constitutional mandates, mala fides also not proved, the non-compliance with the rules of natural justice is also not proved and there is no perversity in the said order and in view of that the said order of the Speaker does not invite any interference by this court, sitting under Article 226 of the Constitution of India. All the above acts, which have been found by the Hon'ble Speaker on enquiry was only with a motive to save the face of disqualification in view of the 'Whip' of the party of the petitioner.
24. In view of the above facts, reasons and analysis, this petition is dismissed.
(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi.
Dated the 6th September, 2023.
AFR/ Amitesh/-