Gujarat High Court
Ashwin Laxmanbhai Kotwal vs Hon Ble Speaker, Gujarat State ... on 2 July, 2019
Equivalent citations: AIRONLINE 2019 GUJ 521
Author: A. P. Thaker
Bench: S.R.Brahmbhatt, A. P. Thaker
C/SCA/10776/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10776 of 2019
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ASHWIN LAXMANBHAI KOTWAL
Versus
HON BLE SPEAKER, GUJARAT STATE LEGISLATIVE ASSEMBLY
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Appearance:
MR HRIDAY BUCH(2372) for the Petitioner
MR KAMAL TRIVEDI Advocate General WITH MR. P.K. JANI, Addl.
Adovcate General WITH MS. MANISHA LOVEKUMAR, Government
Pleader WITH MR. UTKARSH SHARMA AGP for the Respondent
No. 1
MR UNWALLA JAL SOLI WITH MR ROBIN PRASAD ADVOCATES
for the Respondent No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Date : 02/07/2019
ORAL ORDER
(PER : HONOURABLE DR.JUSTICE A. P. THAKER)
1. By way of filing the present petition under Article 226 of the Constitution of India, the petitioner has sought for following reliefs:
(A) Your Lordships may be pleased to
admit and allow this petition;
(B) Your Lordships may be pleased to
direct the Speaker to decide the
disqualification application preferred by the petitioner (Annexure - B) within a period of 3 days from the date of receipt of Page 1 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER the order in accordance with the provisions of the Constitution;
(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to restrain respondent no. 2 from acting as a Member of the Legislative Assembly form 16-Radhanpur Constituency;
(D) Be pleased to grant any other relief/s which deems fit and proper in the interest of justice."
2. The short facts of the petition are as under:
2.1 It is contended by the petitioner that the respondent no.2 has voluntarily given up his membership of the Indian National Congress Party upon his resignation dated 10th April, 2019 and accordingly in view of the provisions contained in paragraph 2(1)(a) of the Tenth Schedule to the Constitution, he is disqualified. It is contended that in view of these facts, the petitioner has moved an application before the Hon'ble Speaker on 25.04.2019. In spite of that no action has been taken for a period of almost one and half months. It is also contended that the respondent no.2 is elected member of legislative assembly as a candidate setup by Indian National Congress party for 16-Radhanpur Constituency. That after filing of the application before the Hon'ble Speaker, nothing was heard from the office of the Hon'ble Speaker for several days, hence a representation was made to the Hon'ble Speaker personally by senior leader of the I.N.C. on 8 th May, Page 2 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER 2019 and on the same day in-charge Deputy Secretary of the Gujarat Legislative Assembly sent a communication to the petitioner by R.P.A.D. pointing out as many as 6 defects in the application preferred by the petitioner. It is contended that such a communication has never been received by the petitioner but however, he got a copy of the same on inquiring personally and thereafter he has filed Further Affidavit on 15th May, 2019 with a request to enable the petitioner to remove the defects pointed out in the aforesaid communication. It is the further case of the petitioner that he has pointed out in detail that the defects are technical in nature and same can be cured and he has accordingly submitted Affidavit to that effect.
2.2 It is also contended that he was not allowed to cure the defects and instead it was informed that the Affidavit shall be placed before the Hon'ble Speaker for its order. It is also contended that thereafter he compelled to wait and thereafter petitioner removed all the defect on 22nd May, 2019 and he was informed that notice will be issued to the respondent no.2 and necessary date of hearing would be intimated to the petitioner.
2.3 It is also contended that the petitioner is still waiting for the date of hearing, but no date of hearing is fixed till then. In the mean while, the Monsoon Session of the legislative assembly is scheduled to be commenced from 1st July, 2019 and the Election Commission of India has also directed to hold bye-election to the Councils of Stated (Rajya Sabha) (Bihar, Odisha and Gujarat).Page 3 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER
2.4 it is the contention of the petitioner that as respondent no.2 has voluntarily resigned from the INC, he is not entitled to represent as a member of the legislative assembly, as he is disqualified under paragraph 2(1)(a) of the Tenth Schedule of the Constitution. However, due to inaction on the part of the Hon'ble Speaker, the situation will arise that he will be entitled to act as a member of the legislative assembly and will also be entitled to cast his vote in the legislative election which are scheduled for voting on 5th July, 2019. According to him respondent no.2 cannot be continued to enjoy the benefit as a member of legislative assembly as he stand disqualified. It is also contended that just because he aligned with the ruling party, the respondent no.2 has got immunity from operation of the Tenth Schedule by the inaction of the Hon'ble Speaker.
2.5 While relying many decisions, it has been prayed by the petitioner to direct the Hon'ble Speaker to decide his disqualification application preferred by the him within a period of three days from the date of receipt of the order in accordance with the provision of the Constitution and has also prayed for interim relief to the tune that respondent o.2 may be restrained from acting as a member of the legislative assembly from Radhanpur constituency.
3. On 24th June, 2019 this Court passed the following order:
"Learned counsel for the petitioner invited Court's attention to the resignation tendered by the respondent no.2 dated 10th Page 4 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER April 2019. Learned counsel for the petitioner has also invited Court's attention to the application moved by the petitioner to the respondent no.1 on 25th April 2019 and the communication dated 8th May 2019, which according to him was required to be collected in person, as the same was not received on due inquiry. The rectification was immediately done on 22nd May 2019, but till date no further proceedings appears to have been taken and the respondent no.2 is not declared disqualified by the respondent no.1. Learned counsel placed reliance upon the decision of the Supreme Court in case of Kihoto Hollohan Vs. Zachillhu, reported in 1992 Supp (2) SCC
651. Notice for final disposal returnable on 27th June 2019. As the notice is being issued for final disposal, it is expected of the respondents to file their reply affidavit, if any, else in view of the settled provisions of law and catena of judgments of the Supreme Court, the disqualification of a member in such an eventuality would not be warranting any further proceedings.
Learned counsel for the petitioner urges the Court that in case if the direct service is permitted, it shall be seen to it that the respondents be served by 25th June 2019. Orders accordingly. Direct service permitted today."Page 5 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER
4. Pursuant to the service of notice, Affidavit-in-Reply of the respondent no.1 has been filed, wherein while quoting the provisions of Articles 191 and 192 read with Article 212 of the Constitution of India and the provisions as to disqualification on the ground of defection as embedded in schedule to the constitution, it has been contended that the adjudicatory power of respondent no.1 is not subject matter of judicial review before a final decision is taken by him and in absence of such a decision a quia timet action is not permissible. It is also contended that in view of the constitutional provision, any question as to disqualification of a member of a house shall be deemed to be a proceeding in the legislature of a State within the meaning of Article 212 of the Constitution, whereby such proceedings cannot be called in question on account of the immunity conferred therein. It is submitted that this Court would not like to interfere in the present petition at an interlocutory stage of the proceedings invoked by the petitioner, which are in seisin before the respondent no.1 and therefore, it is prayed to dismiss the petition in limine.
5. The respondent no.2 has filed his affidavit-in-reply, wherein while referring the constitutional provision, he has contended that petitioner is not entitled to seek any direction against the Hon'ble Speaker, as prayed in the petition. It is also contended that in view of 'The Gujarat Legislative Assembly Members (Disqualification on Ground of Defection) Rules, 1990 (hereinafter referred to as the 'Rules 1990' for the sake of brevity) especially Rules 7, 8 and 9, the Hon'ble Speaker has to follow this procedure and opportunity has to Page 6 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER be given to him before any action is taken against him.
5.1 He has also contended that the matter pending before the Hon'ble Speaker is itself maintainable, as the entire petition is filed on the premise that respondent no.2 has vide his letter dated 10th April, 2019 resigned from the party. It is contended by him that he has resigned from the positions held by him in the party, wherein paragraph stated that he has still member of the INS and he has not incurred any disqualification in view of para 2(1)(a) of the Tenth Schedule read with Article 190(3)(a) and Article 191(2). He has also contended that the petitioner has misinterpreted the letter dated 10th April, 2009. According to him, he has not informed by the party as to acceptance or rejection of his resignation thereof. It is also contended that the original resignation letter has not been produced before the Hon'ble Speaker and it is only sent through Whatsapp. It is also contended that while filing of the application before the Hon'ble Speaker necessary certificate under Section 65(b) of the Indian Evidence Act has not been produced by the petitioner. It is also contended that the disqualification application filed on the basis of inadmissible evidence is not maintainable. On this ground he has prayed to dismiss the petition.
6. Heard learned counsel for the parties and considered the pleadings.
7. Learned counsel Shri Hriday Buch for the petitioner has vehemently submitted that the respondent no.2 has sent resignation letter, whereby he has voluntarily resigned from all the post of the parties which includes his Page 7 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER membership. According to him, therefore, the petitioner has moved the Hon'ble Speaker for disqualifying respondent no.2 from the legislative assembly, which application has not been acted upon and no action has been taken and not cognizance yet been taken by the Hon'ble Speaker. According to him the constitutional provisions have been flouted by the Hon'ble Speaker and as per the Rules, the Hon'ble Speaker can immediately initiate necessary proceeding by calling otherside to reply the same and decision can be rendered within time bound manner. While referring to the following decisions, Mr. Hriday Buch, learned counsel for the petitioner has vehemently submitted that there is no immunity available to the Hon'ble Speaker, as he has not initiated any proceedings for more than two months. While referring to the Affidavits of both the respondents, learned counsel Mr. Hriday Buch has submitted that the averments made in paras 3, 4, 5, 6 and 7 in the petition, have not been categorically dealt by them. According to him, the office of the Hon'ble Speaker for deciding the disqualification application is a Tribunal as held by the Speaker and therefore it is amenable to the writ jurisdiction of this Court and this Court can direct the Hon'ble Speaker to decide the application within time bound manner.
7.1 Mr. Hriday Buch, learned counsel for the petitioner has also vehemently submitted that if the application of the petitioner is not decided by the Hon'ble Speaker within time bound manner then irreversible situation will arise, as the respondent no.2 will take part in the forthcoming bye-election of the Rajysabha and he will also be getting all the benefits and will be a member of legislative assembly which is not permissible under the law. Learned counsel Shri Hirday Buch Page 8 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER relied on the following decisions:
(i) In case of Ravi S.Naik Vs. Union of India, reported in 1994 Supp (2) Supreme Court Cases 641;
(ii) In case of Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others, reported in (2007) 4 Supreme Court Cases 270;
(iii) In case of Kihoto Hollohan Vs. Zachillhu And Others, reported in 1992 Supp (2) Supreme Court Cases 651;
(iv) In case of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others, reported in (2015) 12 Supreme Court Cases 381;
In view of the above, learned counsel Shri Buch has prayed to allow this petition.
8. Per contra, Mr. Kamal Trivedi, learned Advocate General, has vehemently submitted that respondent no.1 is constitutional authority having constitutional obligation. According to him, the Hon'ble Speaker is determine to decide the application after giving opportunity to both the sides. While referring to Rule 7, 8 and 9 especially Rule 9 of the Rules 1990, he has contended that the Hon'ble Speaker has to follow this procedure and give opportunity to the other side to file his reply. According to him, as per Tenth Schedule of the Constitution and Articles 191 and 192, the provision regarding disqualification has been made. Learned Advocate General has also contended that Article 212 is also applicable Page 9 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER and the proceeding before the Hon'ble Speaker does not subject to judicial scrutiny and that the decision is yet not taken by the Hon'ble Speaker and therefore this is a pre- mature petition and in this case after having received application, the office of the Hon'ble Speaker has also intimated the petitioner regarding defect in the application and therefore it may not be said that the Hon'ble Speaker had not taken any initiation. While referring to the paragraph 3.7 of the petition, learned Advocate General has also contended that the petitioner was informed that notice will be issued to the respondent no.2 and he will be intimated about the date of hearing and these facts suggests that the Hon'ble Speaker has also taken cognizance of the matter and the matter is in seisin. According to him, therefore, this action of the Hon'ble Speaker cannot be subject to judicial review. According to him the adjudication proceeding is still pending and therefore in view of the judgments of the Supreme Court, the Court cannot issue any direction to the Hon'ble Speaker as decision is yet to be taken. He has also contended that there is no inordinate delay on the part of the Hon'ble Speaker, as he has to follow this procedure and he has to take many steps and therefore no mandamus would lie against the Hon'ble Speaker.
8.1 Regarding decision relied on by the learned counsel Shri Buch for the petitioner, in case of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others (supra), the learned Advocate General Mr. Trivedi has also vehemently submitted that, in that matter the factual aspects were different and the application for disqualification was not decided for almost more than two years by the Hon'ble Speaker and in that view of the matter necessary direction Page 10 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER was issued by the concerned High Court and thereafter by the Supreme Court. According to him this was the facts and circumstances of the case, where in the present case the office of the Hon'ble Speaker is alive and already intimated the petitioner regarding issuance of notice to the respondent no.2 and thereafter fixing the date of hearing. He has also contended that in the aforesaid decision, the hearing was preferred by the Hon'ble Speaker one or another pretext. The learned Advocate General has also referred to various paras of this judgment.
8.2 Regarding the decision in case of Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others (supra) relied on by Shri Buch, learned counsel for the petitioner, learned Advocate General Mr. Trivedi has contended that this decision has been rendered in the peculiar facts of that case and therefore this decision would not be made applicable to the factual aspect of the present case.
8.3 Learned Advocate General Mr. Trivedi has also relied on the decision in case of Haryana Financial Corporation And Another Vs. Jagdamba Oil Mills And Another, reported in (2002) 3 Supreme Court Cases 496, for the proposition that factual context of the decision may not be kept in mind, for reliance is placed on any judgment and Judges has to interpret statutes and not judgments and for the proposition that words and judgments are not to be interpreted like statutes.
8.4 Regarding the averments made to one other case, the Hon'ble Speaker has taken decision within three days Page 11 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER relating to the member of Talala Constituency, learned Advocate General Shri Trivedi has contended that, that was the case wherein the M.L.A. was convicted by the trial Court and in view of the constitutional provision and provision of the Representative of Peoples Act, 1951, he was declared as having disqualified from the membership of the legislative assembly and therefore, the facts of that case cannot be considered in the facts of this case.
8.5 During the course of submissions, learned Advocate General Mr. Kamal Trivedi has fairly stated that the Hon'ble Speaker is conscious about the matter and he will decide the matter as expeditiously as possible and try to adjudicate it within the period of three/four months.
8.6 Learned Advocate General has also relied on the following decisions in support of his submission to dismiss the petition.
(i) In case of Kihoto Hollohan Vs. Zachillhu And Others, reported in (1992) 1 Supreme Court Cases 309;
(ii) In case of Haryana Vidhan Sabha v. Kuldeep Bishnoi, reported in 2011 SCC OnLine P&H 17305;
(iii) Decision of this Court rendered in Special Civil Application No.5204 of 2019 on 27.03.219 in case of Bhagabhai Dhanabhai Barad v. Election Commission of India Through Election Commissioner;
Page 12 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER9. Learned counsel Shri Unwalla for the respondent no.2, while referring to the Affidavit of the Respondent no.2, has vehemently submitted that the respondent no.2 has not given up the membership of I.N.C. and therefore he has not incurred any disqualification as stated by the petitioner. He is reiterated the averments made in the affidavit-in-reply by the respondent no.2 and submitted that if any direction to decide the application is issued to the Hon'ble Speaker, then the rights of the respondent no.2 will be jeopardized as he will not be able to pursue his remedies. He has submitted that the application filed by the petitioner before the Hon'ble Speaker is not tenable in the eye of law and the present petition is also not tenable in the eye of law as no original resignation letter has been produced by the petitioner. He has also contended that no direction can be issued to the Hon'ble Speaker for deciding the application in a time bound manner and therefore has prayed to dismiss the petition.
10. In rejoinder, Mr. Hriday Buch, learned counsel for the petitioner has vehemently submitted that as per the membership of I.N.C. resignation from any post is resignation from the membership itself. He has also contended that in the present case, as the Hon'ble Speaker has not initiated any action for considering the application of the petitioner and has not taken any cognizance of the same till today, this inaction on the part of the Hon'ble Speaker, who is Tribunal in the eye of law, is subject to the judicial scrutiny. He has also contended that the petitioner has cited the Talala case only with a view to show that as and when the authority wants to take immediate steps, then they are taking immediate steps, but however in the present case there is no cognizance taken Page 13 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER by the respondent no.1 in the application of the petitioner and therefore in view of the judgments in case of Kihoto Hollohan Vs. Zachillhu And Others (supra), Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others (supra) and to that of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others (supra), the necessary direction can be issued by this Court to the Hon'ble speaker for deciding the application in time bound manner. Shri Buch, learned counsel for the petitioner has also submitted that here the question is regarding proprietary of the action of the Hon'ble Speaker in not initiating any steps for deciding the petition and therefore it cannot plead any immunity for the judicial scrutiny. He has also contended that the application was filed in the month of April, 2019 and till 1st June, 2019 no action has been taken by the Hon'ble Speaker. He has also contended that so far as defect, as has been shown by the petitioner in his petition, no such averments has been made in the affidavit filed by the Hon'ble Speaker. According to him in this case non-taking cognizance on the application is a core issue and therefore no immunity available to the Speaker. While answering to the submission of learned Advocate General regarding the peculiar facts of two cases viz. Kuldeep Bishnoi (supra) and Rajendra Singh Rana (supra), learned counsel Mr. Buch has also submitted that the law laid down therein by the Supreme Court is to the effect that the action of the Speaker is a subject matter of judicial scrutiny and therefore necessary direction was issued to the Speaker to take decision in the particular case. While reiterating his submission made in the petition, Shri Buch, learned counsel has submitted that some direction to the Speaker to be issued to decide the application of the petitioner in time bound manner so as to irreversible Page 14 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER situation may not arise, otherwise the respondent no.2 though he is disqualified, will be entitled to take part in the assembly and will also take part in the bye-election of the Rajysabha and he will vote for the same. He has prayed to allow the petition.
11. This Court has heard the learned counsel for the parties at length, the pleading of the parties and the citations made available. The only question surfaces on the record is whether as a constitutional Court, this Court can issue any direction to the Speaker to decide the application of the petitioner regarding disqualification of the respondent no.2. At this juncture, it is worthwhile to refer to the certain observations of the Supreme Court relied on by both the sides.
12.1 In case of Kihota Hollohan Vs. Zachillhu And Others, reported in (1992) 1 SCC 309, the constitutional bench has held in para-4 [G] to [K] as under:
[G] The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the Constitutional Page 15 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions, which may have grave, immediate and irreversible repercussions and consequence.
[H] That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of. constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.
[I] That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh's Case (Spl. Ref.No. l, (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.
[J] That contention that the investitute of Page 16 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound -and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestitute of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.
[K] In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure.
12.2 In case of Kihoto Hollohan v. Zachillhu And Others, reported in 1992 Supp (2) Supreme Court Cases 651, the constitutional bench has held in paras 22, 25 to 27, 34, 38, 39, 93 to 97, 100, 109 to 111, 113, 115, 118, 119, 125 and 126 as under:
para-22: It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not Page 17 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER amenable to judicial power. It is urged that the question in the last analyses pertains to the constitution of the House and the Legislature is entitled to deal with it exclusively.
25. The Tenth Schedule is part of the constitution and attracts the same cannons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one "coherent document". Learned counsel for the petitioners accordingly say that Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co- exist.
26. In expounding the processes of the fundamental law, the Constitution must be treated as a logical-whole. Westel Woodbury Willoughby in The Constitutional Law of the United States" states:
"The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore,, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts."
27. A constitutional document outlines only broad and general principles meant to endure Page 18 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER and be capable of flexible application to changing circumstances - a distinction which differentiates a statue from a Charter under which all statutes are made. Cooley on "Constitutional Limitations" says:
"Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly."
34. On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall- out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a `hazy gray-line' and it is the Court's duty to identify, " darken and deepen" the demarcating line of constitutionality --- a task in which some element of Judges' own perceptions of the constitutional ideals inevitably participate.
There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a "transitory delusion of certitude" where the "complexities of the strands in the web of constitutionality which the Judge must alone disentangle" do not lend themselves to easy and sure Page 19 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.
38. The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic feature of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The onslaughts on their sensibilities 732 by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth-while faith. This is prominently an area where Judges should defer to legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community.
"Legislation may begin where an evil begins".
Referring to the judicial philosophy of Justice Page 20 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER Holmes in such areas, Pohlman again says:
"A number of Holmes's famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community. He had, for example, no "practical" criterion to go on except "what the crowd wanted." He suggested, in a humorous vein that his epitaph......No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do. If the general consensus was that a certain condition was an "evil" that ought to be corrected by certain means, then the government had the power to do it: "Legislation may begin where an evil begins"; "Constitutional law like other mortal contrivances has to take some chances." "Some play must be allowed to the joints if the machine is to work." All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the American public."
(emphasis supplied)
39. Shri Sharma contends that the rights and immunities under Article 105(2) of the Page 21 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides:
"105. Powers, privileges, etc., of the Houses of Parliament and 733 of the Members and committees thereof.-
(1)........ (2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
93. Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Article 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve electoral-disputes by resort to the judicial power of the State. Indeed, Justice Khanna in Indira Nehru Gandhi's case said:
"Not much argument is needed to show Page 22 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds....."
94. It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area. The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federation v. Whybrow & Co., as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. v. Union of India, Issacs J., stated:
"If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary Page 23 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties- in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with 763 sanctions for non-conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorities it. If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act."
para-95: In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion.
96. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words "proceedings in Parliament" or "proceedings Page 24 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER in the legislature of a State" in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures.
97. That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.
100. By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.
109. In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under Page 25 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER paragraph 6, the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.
110. 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 the constitutional intendment and the status of the repository of the adjudicatory power i.e. 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. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.
111. In the result, we hold on contentions E and F :
That the Tenth Schedule does not, in providing for an additional grant for Page 26 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER disqualification and for adjudication of disputed disqualifications, seek to create a nonjusticiable constitutional area. The power to resolve such disputes vested in the Speaker or chairman is a judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far 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 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh's Case Spl.Ref. No. 1, [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.
The Speaker/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating Page 27 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible 770 repercussions and consequence.
113. It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free tugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.
115. The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the Page 28 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy. The office of the speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. `The Speaker holds a high, important and ceremonial office. All questions of the well being of the House 771 are matters of Speaker's concern'. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character.
118. It would, indeed, be unfair to the high traditions of that great 773 office to say that the investiture, in it of this Jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the High office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker to change and elevate the man inside.
119. Accordingly, the contention that the vesting of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Page 29 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and to take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power of adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.
125. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made.
126. The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not Page 30 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER become infructuous by any unilateral overt acts by one side or the other during its pendency. One of the contentions urged was as to the invalidity of the amendment for non- compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to Article 368(2). The interlocutory orders in this case were necessarily 777 justified so that, no land-slide changes were allowed to occur rendering proceedings ineffective and infructuous."
12.3 In case of Ravi S.Naik Vs. Union of India, reported in 1994 Supp (2) Supreme Court Cases 641, the supreme court has held in paras 18, 19, 20, 23 and 24 as under:
18. The submission of Shri Sen is that the petitions that were filed by Khalap before the Speaker did not fulfill the requirements of clause (a) of sub-rule (5) of Rule 6 inasmuch as the said petition did not contain a concise statement of the material facts on which the petitioner (Khalap) was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6 were also not complied with inasmuch as the petitions were not accompanied by copies of the documentary evidence on which the petitioner was relying and the names and addresses of the persons and the list of such information as furnished by each such person. It was also submitted that the petitions were also not verified in the Page 31 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER manner laid down in the Code of Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case. Moreover, 653 the field of judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of paragraph 6 as construed by this Court in Kihoto Hollohan case2 is confined to breaches of the constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and perversity. We are unable to uphold the contention of Shri Sen that the violation of the Disqualification Rules amounts to violation of constitutional mandates. By doing so we would be elevating the rules to the status of the provisions of the Constitution which is impermissible. Since the Disqualification Rules have been framed by Page 32 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER the Speaker in exercise of the power conferred under paragraph 8 of the Tenth Schedule they have a status subordinate to the Constitution and cannot be equated with the provisions of the Constitution. They cannot, therefore, be regarded as constitutional mandates and any violation of the Disqualification Rules does not afford a ground for judicial review of the order of the Speaker in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth Schedule as construed by this Court in Kihoto Hollohan case.
19. Shri Sen has next contended that there has been violation of principles of natural justice inasmuch as in disregard of the provisions of Rule 7(3)(b) of the Disqualification Rules which provides for the comments being forwarded by the member concerned to the Speaker within a period of seven days of the receipt of the copy of the petition and annexures thereto; the appellants were given only two days' time to file their reply to the petition. Shri Sen has urged that there has been violation of the principles of natural justice also for the reason that in the impugned order the Speaker has referred to certain extraneous materials and circumstances, namely, the copies of the newspapers that were produced by Dr Jhalmi at the time of hearing and the talks which the Speaker had with the Governor. Another grievance raised by Shri Sen was that the Page 33 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER appellants were denied the opportunity to adduce their evidence before the Speaker passed the impugned order.
20. Principles of natural justice have an important place in modern Administrative Law. They have been defined to mean "fair play in action". (See:Maneka Gandhi v. Union of India4, Bhagwati, J.) As laid down by this Court: "They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men"
(Union of India v. Tulsiram Patel). An order of an authority exercising judicial or quasi- judicial functions passed in violation of the principles of natural justice is procedurally ultra vires and, therefore, suffers from a jurisdictional error. That is the reason why in spite of the finality imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule such a decision is subject to judicial review on the ground of non- compliance with rules of natural justice. But while applying the principles of natural justice, it must be borne in mind that "they are not immutable but flexible" and they are not cast in a rigid mould and they cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case.Page 34 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER
23. The grievance of the appellants regarding violation of the principles of natural justice has to be considered in this light.
24. It is no doubt true that under Rule 7(3)(b) of the Disqualification Rules, it has been provided that the members concerned can forward their comments in writing on the petitions within seven days of the receipt of the copies of the petition and the annexures thereto and in the instant case the appellants were given only two days' time for submitting their replies. The appellants, however, did submit their replies to the petitions within the said period and the said replies were quite detailed. Having regard to the fact that there was no denial by the appellants of the allegation in paragraph 11 of the petitions about their having met the Governor on December 10, 1990 in the company of Dr Barbosa and Dr Wilfred D'Souza and other Congress (1) MLAs and the only dispute was whether from the said conduct of the appellants an inference could be drawn that the appellants had voluntarily given up their leadership (sic membership) of the MGP, it cannot be said that the insufficient time given for submitting the reply has resulted in denial of adequate opportunity to the appellants to controvert the allegations contained in the petitions seeking disqualification of the appellants.Page 35 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER
12.4 In case of Rajendra Singh Rana And Others Vs. Swami Prasad Maurya And Others, reported in (2007) 4 Supreme Court Cases 270, the Supreme Court has held paras 22, 25, 27, 30, 34, 38, 40 and 44, as under:
para 22: The Constitution (Fifty-Second Amendment) Act, 1985 amended Articles 102 and 191 of the Constitution by introducing sub-articles to them and by appending the Tenth Schedule introducing the provisions as to disqualification on the ground of defection. They were introduced to meet the threat- posed to democracy by defection. A ground of disqualification from the membership of the Parliament or of the Assembly on the ground of defection was introduced. The constitutional validity of the amendment and the inclusion of the Tenth Schedule was upheld by this Court in Kihoto Hollohan (supra) except as regards paragraph 7 thereof, which was held to require ratification in terms of Article 368(2) of the Constitution. It is not in dispute that paragraph 7 of the Tenth Schedule is not operative in the light of that decision. The constitution Bench held that the right to decide has been conferred on a high dignitary, namely, the Speaker of the Parliament or the Assembly and the conferment of such a power was not anathema to the constitutional scheme. Similarly, the limited protection given to the proceedings before the Speaker in terms of paragraph 6 of the Tenth Schedule to the Constitution was also justified even though Page 36 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER the said protection did not preclude a judicial review of the decision of the Speaker. But that judicial review was not a broad one in the light of the finality attached to the decision of the Speaker under paragraph 6(1) of the Tenth Schedule and the judicial review was available on grounds like gross violation of natural justice, perversity, bias and such like defects. It was following this that the Ravi S. Naik (supra) decision was rendered by two of the judges who themselves constituted the majority in Kihoto Hollohan and the observations above referred to but which were explained subsequently, were made. Suffice it to say that the decision of the Speaker rendered on 6.9.2003 was not immune from challenge before the High Court under Articles 226 and 227 of the Constitution of India.
25. In the context of the introduction of sub- Article (2) of Article 102 and Article 191 of the Constitution, a proceeding under the Tenth Schedule to the Constitution is one to decide whether a Member has become disqualified to hold his position as a Member of the Parliament or of the Assembly on the ground of defection. The Tenth Schedule cannot be read or construed independent of Articles 102 and 191 of the Constitution and the object of those Articles. A defection is added as a disqualification and the Tenth Schedule contains the provisions as to disqualification Page 37 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER on the ground of defection. A proceeding under the Tenth Schedule gets started before the Speaker only on a complaint being made that certain persons belonging to a political party had incurred disqualification on the ground of defection. To meet the claim so raised, the Members of the Parliament or Assembly against whom the proceedings are initiated have the right to show that there has been a split in the original political party and they form one-third of the Members of the legislature of that party, or that the party has merged with another political party and hence paragraph 2 is not attracted. On the scheme of Articles 102 and 191 and the Tenth Schedule, the determination of the question of split or merger cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members concerned. It is therefore not possible to accede to the argument that under the Tenth Schedule to the Constitution, the Speaker has an independent power to decide that there has been a split or merger of a political party as contemplated by paragraphs 3 and 4 of the Tenth Schedule to the Constitution. The power to recognise a separate group in Parliament or Assembly may rest with the Speaker on the basis of the Rules of Business of the House. But that is different from saying that the power is available to him under the Tenth Schedule to the Constitution independent of a claim being determined by him that a member Page 38 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER or a number of members had incurred disqualification by defection. To that extent, the decision of the Speaker in the case on hand cannot be considered to be an order in terms of the Tenth Schedule to the Constitution. The Speaker has failed to decide the question, he was called upon to decide, by postponing a decision thereon. There is therefore some merit in the contention of the learned Counsel for the B.S.P. that the order of the Speaker may not enjoy the full immunity in terms of paragraph 6(1) of the Tenth Schedule to the Constitution and that even if it did, the power of judicial review recognised in the court in Kihoto Hollohan (supra) is sufficient to warrant interference with the order in question.
27. The Speaker, as clarified in Kihoto Hollohan (supra), has necessarily to decide that question of disqualification as a Tribunal..... In that context, the Speaker cannot say that he will first decide whether there has been a split or merger as an authority and thereafter decide the question whether disqualification has been incurred by the members, by way of a judicial adjudication sitting as a Tribunal.....
Para-30: There is another aspect. The Speaker, after he kept the determination of the question of disqualification pending, passed an order that the said petition will be dealt with after the High Court had taken a Page 39 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER decision on the Writ Petition pending before it and directed that the said petition be taken up after the Writ Petition was disposed of. Then, suddenly, without any apparent reason, the Speaker took up that application even while the Writ Petition was pending and dismissed the same on 7.9.2005 by purporting to accept a so called preliminary objection raised by the 13 M.L.As. sought to be disqualified, to the effect that his recognition of the split of the 37 M.L.As. including themselves, has put an end to that application. This last order is clearly inconsistent with the Speaker's earlier order dated 14.11.2003 and still leaves open the question whether the petition seeking disqualification should not have been decided first or at least simultaneously with the application claiming recognition of a split. If the order recognising the split goes, obviously this last order also cannot survive. It has perforce to go.
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 Page 40 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER postpone the incurring of disqualification by the act of the Legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of Page 1013 the object sought to be achieved by the Fifty Second Amendment of the Constitution and on a true understanding of paragraph 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of paragraph 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. We are, therefore, of the view that the contention that only on a decision of the Speaker that the disqualification is incurred, Page 41 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER 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.
38. Acceptance of the argument that the legislators are wearing two hats, one as members of the original political party and the other as members of the legislature and it would be sufficient to show that one third of the legislators have formed a separate group to infer a split or to postulate a split in the original party, would militate against the specific terms of paragraph 3. That paragraph speaks of two requirements, one, a split in the original party and two, a group comprising of one third of the legislators separating from the legislature party. By acceding to the two hat theory one of the limbs of paragraph 3 would be made redundant or otioes. An interpretation of that Page 1015 nature has to be avoided to the extent possible. Such an interpretation is not warranted by the context. It is also not permissible to assume that the Parliament has used words that are redundant or meaningless. We, therefore, overrule the plea that a split in the original political party need not separately be established if a split in the legislature party is shown.
Page 42 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER40. Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of paragraph 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf. He has entered no finding whether a split in the original political party was prima facie proved or not. This action of his, is apparently based on his understanding of the ratio of the decision in Ravi S. Naik's case (supra). He has misunderstood the ratio therein. Now that we have approved the reasoning and the approach in Jagjit Singh's case and the ratio therein is clear, it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with. We have, therefore, no hesitation in agreeing with the majority of the High Court in quashing the decisions of the Speaker.
44. Normally, this Court might not proceed to take a decision for the first time when the authority concerned has not taken a decision in the eyes of law and this Court would normally remit the matter to the authority for Page 43 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER taking a proper decision in accordance with law....."
12.5 In case of Speaker, Haryana Vidhan Sabha Vs. Kuldeep Bishnoi And Others, reported in (2015) 12 Supreme Court Cases 381, the Supreme Court has held in paras 19, 44, 46 and 47 as under:
"19. The learned Solicitor General sought to reemphasize the fact that the present case is not a case involving disqualification or suspension of a Member of the House by the Speaker during the pendency of the proceedings, but relates to disqualification proceedings pending before the Speaker, which were not being disposed of for one reason or the other. It was submitted that the fact that the Speaker had not finalized the disqualification petitions for almost a period of two years, could not and did not vest the High Court with power to usurp the jurisdiction of the Speaker and to pass interim orders effectively disqualifying the five MLAs in question from functioning effectively as Members of the House. The learned Solicitor General urged that the facts of this case would not, therefore, attract the exceptions carved out in Kihoto Hollohan case.
44. We have to keep in mind the fact that these appeals are being decided in the background of the complaint made to the effect that interim orders have been passed by Page 44 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER the High Court in purported exercise of its powers to judicial review under Articles 226 and 227 of the Constitution, when the disqualification proceedings were pending before the Speaker. In that regard, we are of the view that since the decision of the Speaker on a petition under paragraph 4 of the Tenth Schedule concerns only a question of merger on which the Speaker is not entitled to adjudicate, the High Court could not have assumed jurisdiction under its powers of review before a decision was taken by the Speaker under paragraph 6 of the Tenth Schedule to the Constitution. It is in fact in a proceeding under paragraph 6 that the Speaker assumes jurisdiction to pass a quasi- judicial order which is amenable to the writ jurisdiction of the High Court. It is in such proceedings that the question relating to the disqualification is to be considered and decided. Accordingly, restraining the Speaker from taking any decision under paragraph 6 of the Tenth Schedule is, in our view, beyond the jurisdiction of the High Court, since the Constitution itself has vested the Speaker with the power to take a decision under paragraph 6 and care has also been taken to indicate that such decision of the Speaker would be final. It is only thereafter that the High Court assumes jurisdiction to examine the Speaker's order.
46. The appeal filed by the Speaker, Haryana Vidhan Sabha, against the judgment Page 45 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER of the Division Bench of the High Court, is not, therefore, capable of being sustained and the Appeal filed by the Speaker is accordingly dismissed. The other Appeals preferred by the five disqualified MLAs have, therefore, to be allowed to the extent of the directions given by the learned Single Judge and endorsed by the Division Bench that the five MLAs would stand disqualified from effectively functioning as Members of the Haryana Vidhan Sabha till the Speaker decided the petitions regarding their disqualification, within a period of four months.
47. In our view, the High Court had no jurisdiction to pass such an order, which was in the domain of the Speaker. The High Court assumed the jurisdiction which it never had in making the interim order which had the effect of preventing the five MLAs in question from effectively functioning as Members of the Haryana Vidhan Sabha. The direction given by the learned Single Judge to the Speaker, as endorsed by the Division Bench, is, therefore, upheld to the extent that it directs the Speaker to decide the petitions for disqualification of the five MLAs within a period of four months. The said direction shall, therefore, be given effect to by Speaker. The remaining portion of the order disqualifying the five MLAs from effectively functioning as Members of the Haryana Vidhan Sabha is set aside. The said five MLAs would, therefore, be entitled to fully Page 46 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER function as Members of the Haryana Vidhan Sabha without any restrictions, subject to the final decision that may be rendered by the Speaker in the disqualification petitions filed under para. 6 of Schedule X to the Constitution."
12.6 In case of Haryana Financial Corporation And Another v. Jagdamba Oil Mills And Another, reported in (2002) 3 SCC 496, the Supreme Court has held in paras 19 to 22 as under:
19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed.
Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (at P. 761), Lord Mac Dermot observed (All ER p.14C-D):
"The matter cannot, of course, be settled merely by treating the Page 47 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto.
This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
20. In Home Office v. Dorset Yacht Co. Lord Reid said, "(at ALL ER p-297g-h) "Lord Atkin's speech..is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board, Lord Morris said: (All ER p.761c) "There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
21. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
Page 48 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER22. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus:
"19.......Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
* * * "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches.
My plea is to keep the path to justice
clear of obstructions which could
impede it."
12.7 The provisions of Rule 7, 8 and 9 of the Rules 1990
also requires to be reproduced as under:
"7 (1) No reference of any question as to whether a member has become subject to disqualification under the Tenth Schedule shall be made except by a petition in relation Page 49 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER to such member made in accordance with the provisions of this rule.
(2) A petition in relation to a member may be made in writing to the Speaker by any other member :
Provided that a petition in relation to the Speaker shall be addressed to the Secretary.
(3) The Secretary shall,-
(a) as soon as may may be after the receipt of a petition under the proviso to sub-rule(2) make a report in respect thereof to the House;
and
(b) as soon as may be after the House has elected a member in pursuance of the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule place the petition before such member.
(4) Before making any petition in relation to any member, the petitioner shall satisfy himself that there, are reasonable grounds for believing that a question has arisen as to whether such member has become subject to disqualification under the Tenth Schedule.
(5) Every petition,-
(a) shall contain a concise statement of the material facts on which the petitioner relies :
and Page 50 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER
(b) shall be accompanied by complies of the documentary evidence, if any, on which the petitioner relies and where the petitioner relies on any information furnished to him by any person, a statement containing, the names and addresses of such persons and the gist of such information as furnished by each such person.
(6) Every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908), for the verification of pleadings. (7) Every annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
8. (1) On receipt of a petition under rule 7, the Speaker shall consider whether the petition complies with the requirements of that rule.
(2) If the petition does not comply with the requirements of rule 7, the Speaker shall dismiss the petition and intimate the petitioner accordingly.
(3) If the petition complies with the requirements of rule 7, the Speaker shall cause copies of the petition and of the annexure thereto to be forwarded,--
(a) to the member in relation to whom the petition has been made; and Page 51 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER
(b) where such, member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader, and such member, or leader shall, within seven days of the receipt of such copies, or within such further period as the Speaker may for sufficient cause allow, forward his comments in writing, thereon to the Speaker.
(4) After considering the comments, if any, in relation to the petition, received under sub- rule (3) within the period allowed (Whether originally or on extension under that, sub- rule), the Speaker shall proceed to determine the question.
(5) The procedure which shall be followed by the Speaker for determining any question shall be so far as may be, the same as the procedure, for inquiry and determination by the Committee of Privileges of any, question as to breach of privilege of the House by a member, and the Speaker shall not come to any finding that a member has become subject to disqualification under the Tenth Schedule without affording a reasonable opportunity of being heard to such member.
(6) The provisions of sub-rules(1) to (5) shall apply with respect to a petition in relation to the Speaker as they apply with respect to a petition in relation to any other member and Page 52 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER for this purpose, reference to the Speaker in these sub-rules shall be construed as references to the member elected by the House, under the proviso to sub-paragraph(1) of paragraph 6 of the Tenth Schedule.
9. (1) At the conclusion of the consideration of the petition, the Speaker or, as the case may be, the member elected under the proviso to sub-paragraph (1) of paragraph 6 of the Tenth Schedule shall by order in writing, ---
(a) dismiss the petition, or
(b) declare that the member in relation to
whom the petition has been made has become subject to disqualification under the Tenth Schedule, and cause copies of the order to be delivered or forwarded to the petitioner, the member in relation to whom the petition has been made and to the leader of the legislature party, if any, concerned.
(2) Every decision referred to in sub-rule(1) shall be reported to the House forthwith if the House is in session, and if the House is not in session, immediately after the House reassembles.
(3) Every decision referred to in sub-rule(1) shall be published in the Bulletin and notified in the Official Gazette and copies of such decision shall be forwarded by the Secretary Page 53 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER to the Election Commission of India and the State Government."
13. Considering the aforesaid observations of the Apex Court in the various decisions, it is crystal clear that under the scheme of Tenth Schedule to the Constitution, the Speaker has been given powers to decide the disqualification of any member. It is also settled that the Speakers while exercising such powers and discharging functions under the Tenth Schedule act as a Tribunal adjudicating rights and obligations and the decisions in that capacity are amenable to judicial review. However, it is specifically held in case of Kihoto Hollohan v. Zachillhu And Others (supra) that having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speaker/Chairman. It is also observed therein that having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which have grave, immediate and irreversible repercussions and consequence. Admittedly in this case, the Speaker has not made any decision either allowing or rejecting the petition of the petitioner. The secretariat of the Speaker has intimated the defects in the application and has also informed the petitioner that notice will be issued to the respondent no.2 and thereafter the date of hearing will be issued.
14. It is pertinent to note that as per the Rules 1990, the procedure has been prescribed for deciding the Page 54 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER application of the disqualification on the ground of defection. The Rule 7 thereof, which is reproduced hereinabove, clearly mentions that petition has to be filed by person concerned in writing and thereafter the secretariat will examine the same. According to Rule 8 on receipt of the petition under Rule 7, the Speaker has to consider whether the petition complies with the requirement of that Rule or not and if it does not comply with the requirement of Rule 7, the Speaker shall dismiss the petition and intimate the petitioner accordingly. Now, admittedly in this case the Speaker has not dismissed the petition at threshold and has intimated the petitioner to remove the defects in his application filed for disqualification of the respondent no.2 on defection. It is pertinent to note that as per Rule 8(3), if the petition complies with the requirement of Rule 7, the Speaker shall have to cause copy of the petition and the annexures thereto to be forwarded,- (a) to the member in relation to whom the petition has been made; and (b) where such, member belongs to any legislature party and such petition has not been made by the leader thereof, also to such leader, and such member, or leader shall have to file his comments in writing within 7 days, or within such period as the Speaker may for sufficient cause allow. Thus, this is complete code, which has to be adhered to and followed by the Speaker in deciding the application for disqualification on the ground of defection.
15. At this juncture, it is required to be observed that these Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the powers conferred on him under sub-paragraph 1 of paragraph 6 of the Tenth Schedule of the Constitution and these Rules are Page 55 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019 C/SCA/10776/2019 ORDER procedural in nature and violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny. Admittedly, in this case, the Speaker has yet not adjudicated upon the application and it is in primary stage. These facts suggests that the adjudication process is already started and it is submitted that defects is already removed. At this stage, no direction as sought for by the petitioner to decide his application within the period of three days, need to be issued to the Speaker.
16. In view of the aforesaid facts and circumstances and reasoning, we are of the view that as no exception, case or circumstances are made out calling for any interference and/or issuance of direction especially so when the learned counsel for the respondent no.1 has clearly submitted that the respondent no.1 is alive to the situation and he is being responsible constitutional authority would take all the care and precaution to see to it that no grievances are thereafter survive and the matter will be decided strictly in accordance with law.
17. Resultantly, this Court is of the considered view that the present petition is devoid of merits and the same is required to be dismissed and is accordingly dismissed. Notice discharged. However, there shall be no order as to costs.
(S.R.BRAHMBHATT, J.) (A. P. THAKER, J.) Pankaj Page 56 of 56 Downloaded on : Wed Jul 03 00:56:57 IST 2019