| • Chief Minister, Uttar Pradesh (Fourth-time) |
| • National President, Bahujan Samaj Party (BSP) |
| • Member of Uttar Pardesh Legislative Council |
| KUMARI MAYAWATI | |
||
|
|||
|
|||
COURT ORDERS |
||
|
IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD. |
||
|
||
| Lucknow, Uttar Pradesh (India): Dealing a blow to Uttar Pradesh Chief Minister Mulayam Singh Yadav, the Allahabad High Court special Bench by 2-1 majority on February 29, 2006 set aside the split in the Bahujan Samaj Party (BSP) whose 40 legislators has defected to support Samajwadi Party's Mulayam Singh Yadav Government on August 2003.
The Chief Justice Ajoy Nath Ray delivered the minority judgment. (Following is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying). |
||
| Writ Petition No. 5085 [MB] of 2003 Swami Prasad Maurya Petitioner Speaker and others Respondents. Sri S. C. Mishra, Senior Advocate along with S/Sri P.N.Gupta and Sunil Choudhary, Advocates. Sri Shanti Bhushan, Senior Advocate alongwith S/Sri K.K. Lahiri, Ejaz Maqbool, Jaideep Narain Mathur, Sri Rakesh Dwivedi, Senior Advocate alongwith S/Sri Gaurav Bhatia, Anupam Mehrotra and Sri Virendra Bhatia, Senior Advocate with Sri S.A.H. Rizvi, Advocates. Hon'ble Ajoy Nath Ray,C. J. Hon'ble Jagdish Bhalla,J. Hon'ble Pradeep Kant, J. - CJ's Court Writ Petition No. 5085 (M/B) of 2003 Swami Prasad Maurya Vs. Speaker, Legislative Assembly U.P. & Others Hon'ble Ajoy Nath Ray, CJ. Hon'ble Jagdish Bhalla, J. Hon'ble Pradeep Kant, J. (Delivered by Hon'ble Ajoy Nath Ray, CJ.) |
||
| This is a matter concerning the 10 th Schedule of the Constitution, i.e. floor crossing. Sometime back, in this State of Uttar Pradesh, in the beginning of the month of September, 2003, some 40 members, who had been elected with party tickets of the Bahujan Samaj Party (BSP), according to their allegation, split from that party and formed a separate party called the 'Loktantrik Bahujan Dal'. Closely following that decision, there was a further decision taken by them that they would merge as Loktantrik Bahujan Dal into the Samajwadi Party, headed at that time and also today in the Assembly by Sri Mulayam Singh Yadav. As a result of this floor crossing, a serious change in the Government took place. Km. Mayawati, who was the Chief Minister prior thereto, lost her position as such, and after this political change Sri Mulayam Singh Yadav came to assume the office of the Chief Minister, which he still holds. Before we give the short facts and a few important and relevant dates concerning the events, which took place in 2003 and thereafter in 2005, coincidentally again in the month of September, we should mention how this matter came to be heard by this Full Bench instead of the ordinary Division Bench consisting of two Hon'ble Judges, who would, in the usual course of litigation, be hearing it. The petition of September, 2003 complaining against the floor-crossing was presented indeed before a Division Bench of two Hon'ble Judges by the BSP. It was heard from time to time and an amendment application was also made, seeking to challenge a certain order passed in September, 2005. In the month of November, 2005, the matters were being heard before one of us (Hon'ble Mr. Justice Jagdish Bhalla, Senior Judge, Lucknow Bench) and Hon'ble Mr. M.A. Khan, who was one of our sitting brothers then in November, 2005, but who has since retired. It so happened that on the 22 nd of November, 2005, after conclusion of some arguments on the amendment petition, Hon'ble M.A.Khan produced the judgment on the amendment application whereby his Lordship, apparently, had passed a final opinion on the application. Thereafter his Lordship produced another judgment on the substance of the writ petition and his Lordship's opinion there also, apparently, was final. Brother Bhalla, J. was a little taken by surprise as there had been no prior discussion and as such was put in a position where his Lordship felt that the matter not being considered fully by him or jointly, any question of agreement with the two judgments or any of those did not arise on that day then and there. The result simply was that there was no agreement in the Division Bench. Brother M.A. Khan was thereafter admitted into a Lucknow hospital for check-up. There being no agreement in the Division Bench and one of the Hon'ble Judges retiring with the expiry of the month of November, 2005 itself, and the matter being placed before me, it was best thought to involve brother Bhalla, J., who had already heard a lot of the matter, and the new entrant being brother Pradeep Kant, J., who joined us as such, the result became a Full Bench. Now we give the short list of events. On the 25 th /26 th of August, 2003, Km. Mayawati had resigned as Chief Minister and she with her Cabinet had then decided to call for fresh elections mid-term, when only about a year and a half of the elected term of the office of the MLA's had run out; after the passage of five years, the next elections in the ordinary course would be due in February, 2007. On 26.8. itself, Sri M.S. Yadav as the Samajwadi leader requested the Governor, to be allowed to form government. On 29.8., he was given time to demonstrate a majority. All the MLAs faced the possible problem of re-elections then. The Bahujan Dal had ruling powers only in coalition with the BJP, which is still a significant force in the U.P. Legislative Assembly, having still 82 elected members of their own sitting now. The Bahujan party, before floor-crossing, had had a strength of 109, the total number of the U.P. legislative assembly seats being 404. It is only after Bahujan lost 40 MLAs and the Samajwadi party gained them, that they have a present majority, although not an absolute majority, and a strength 194. According to the respondents before us, on that fateful day, the 26 th of August, 2003 itself, at a place called Darulshafa in the district of Lucknow, i.e. in the heart of the State and the State capital itself, a meeting took place involving 40 (or 43) members of the then Bahujan Dal Party, who were also the sitting MLAs. It was not a meeting, as claimed by them, only of the MLAs, as other members, office bearers and Bahujan supporters also attended the meeting. It is hotly disputed whether 40 or 43 members of the Legislative Assembly were present at Darulshafa on 26 th of August, 2003 or whether even a meeting had taken place. The respondents' claim before the Speaker in September, 2003, in the circumstances, which we shall mention hereinafter, was that 37 MLA members had attended the meeting, and another six had also joined, raising the number ultimately to 43. In any event, on the 27 th of August, 2003, only two small groups of 8+5 aggregating 13 MLAs went to his Excellency the Governor and requested the Governor to request Shri Mulayam Singh Yadav to test his strength, show the majority and perhaps form the Government. This would be a solid alternative to immediate reelections. The respondents claimed that whether 13 went to the Governor or not, all 40 or 43 had met on the 26 th August and the split of the total number of MLAs took place on the 26 th August itself, and not at any later point of time. The important date after the 27 th of August, is the 4 th of September, 2003. On that date, a petition was presented on behalf of the Bahujan Dal to the Speaker calling for a declaration of disqualification of the 13 Bahujan Dal MLAs, who had gone to the Governor and had thereby committed acts, which were inconsistent with their party loyalty and belonging, and these actions according to the Bahujan Dal, were just the same as their giving up the Bahujan party voluntarily. We shall mention the details hereafter, but roughly speaking Paragraph 3 of Schedule 10 states that if the split group is not less than one third number of MLAs of the party in question, then and in that event, such split will not cause the loss of office of the MLAs, who walk away from the party. On the other hand, if the number is less than this magic faction of one third, it becomes punishable floor crossing and the simple punishment is loss of the legislative office for the rest of the term. On the 5 th of September on behalf of the Bahujan Dal, a caveat was filed before the Speaker stating that the matter should not be heard in their absence, if the said 13 MLAs or some more apply for any recognition of any split before the Speaker. On the 6 th of September, 2003, such an application for recognition was indeed made. The leader of this breakaway group was one Rajendra Singh Rana. A short petition dated 6.9.2003 was presented whereby it was mentioned that 37 MLAs who had signed that petition had broken away on 26.8.2003 and split from Bahujan Dal; they requested for recognition of their split. It was mentioned there that they had formed a Loktantrik Bahujan Dal, out of the said breakaway group as a new party. A second petition was also presented on the same day, i.e. 6.9.2003. It was there mentioned to the effect that cent-percent members of the Loktantrik Bahujan Dal had decided on the 6 th of September, 2003 itself to merge lock, stock and barrel with the Samajwadi Party and recognition as well as merger was prayed for. That was the subject matter of this second petition of 6.9.2003. The 37 MLA's included the original 13; 24 more had come forward openly to join them on 6.9., leaving aside the issue for the present, whether they were all along there behind the scene. In regard to merger, the Paragraph in Schedule 10, is Paragraph 4. The details will be mentioned later. The substance of that paragraph is that a party can merge with another party and the merging members will not lose their MLA office during the rest of the term, if at least 2/3 rd of the sitting MLAs of that party join in the merger. Rajendra Singh Rana and others claimed that as they had split from Bahujan Dal and formed a new party, and since according to Para-3 that new party from the time of the split became their original party for the purposes of Schedule 10, their merger with Samajwadi Party was wholly up to and even much more than the permissible faction mentioned in Para-4. Had they split by way of merger from the Bahujan Dal itself, then and in that event, they might not have been 2/3 rd of the Bahuhan Dal strength, but they had split and formed a new party before the merger, and thus the Bahujan Dal was not involved. The strength of the MLA's of the Bahujan Dal in the beginning of, say, August, 2003 was 109. 37 was, therefore the minimum number required for qualifying for a split within Para-3. With this splitting MLA strength of 37, the material issues would not alter, even if the original legislature party strength of the BSP were III, which it never was. One of the main arguments of the petitioners was that 13 MLAs had split and walked away from the Bahujan Dal on 27.8.2003 and they had thus become disqualified then and there. The other 24 members, who signed along with these 13 members, were not there on 27.8.2003. They came later and surfaced for the first time, so to speak, on 6.9.2003. 24 is less than 37. 13 is even more so. Although no separate petition was made for the disqualification of these 24, yet they come under disqualification also, since the other 13 have already disqualified themselves. All 37 MLAs, according to the petitioners should be declared as having lost their seat as an MLA and the Speaker should have decided to that effect, which he unfortunately did not do. On the 6 th of September, 2003, Rana had presented yet another petition; this was with regard to six more Bahujan MLAs. It was claimed by them that these six were also in the group and they should have the same fate as the other 37. On 6.9., the then Speaker Mr. Tripathi, who is still a sitting BJP MLA of the U.P. Assembly, but no longer the Speaker, decided that the 37 Bahujan Dal MLAs had correctly split with the appropriate number and they could not come under any disqualification. No such decision was given with regard to the other six, who did not present themselves like the main 37 before the Speaker on 6.9. On the 8 th of Spetember,2003, three out of those six were present before the Speaker and an order was passed on the 8 th of September, 2003 whereby these three were added to the group of 37 floor crossers and 40 came over from Bahujan Dal via Loktantrik Bahujan Dal to the Samajwadi Party. The petitioners have said that the full group of 40 was not there in the beginning. If 40 were there, why should only 13 go to the Governor on 27.8.2003 and the others lie hidden? Further, at a condolence meeting in the Legislative Assembly on 1.9.2003, the balance 24 and certainly the other 6 were seen as sitting in the same portion of the Assembly House, as was occupied by the members of the Bahujan Dal. How could they have split and continued to sit with Bahujan Dal? Thirdly they have relied upon a letter allegedly signed by Mr. and Mrs. Nari, who were within the said group of 37, but who allegedly were threatened at gun point before that date to undertake the floor crossing. The respondents submit that it is a letter procured later, which has seen the light of the day only two years after September, 2003, and it cannot be looked into, because it is fabricated. The petitioners also rely on an affidavit of 3 of the said 6, who never joined ultimately, where it is stated that there was no meeting at Darulshafa as claimed or at all, and the whole story of Rana and others is false. On the 6 th of September, 2003, the Speaker stated that the petition of 4 th September for disqualification was a quasi judicial matter and it would be decided by him later on. So the disqualification petition was kept pending although the non-disqualification petition by way of declaration of a permissible split made on 6.9.2003 was ordered upon, in a manner wholly favourable to the breakaway group. This is the main order of the Speaker, challenged before us. The 4 th September petition was disposed of by the Speaker as late as on the 7 th September, 2005. It is not necessary to go into the details as to who, if any, were delaying the hearing of that petition, or who, if any, were suddenly in an unseemly hurry to have the petition disposed of. What is important for us to note is that an amendment application was made by the petitioners for the purpose, inter alia, of challenging the said order dated 7.9.2005 also. By that order, it was substantially ruled that the 6.9. split petition being allowed, there remained nothing more to be decided in regard to the disqualification petition of 4.9.2003. On these facts, we now have to deal with the details of arguments and the cases cited and also give our decision on those. The somewhat side issue of the amendment application can be disposed of easily here and now. We had all along assured Mr. Misra, who put forward the case on behalf of the writ petitioner that we would be allowing the amendment application in any event at the end, but that passing of a final order on the amendment application midway during hearing was not advisable, as the other side was opposing it heavily. Such a final order at that stage would involve the Court in an absolutely unnecessary exercise of practically a double hearing of the same matter. In a constitutional issue of this nature where the Legislators, the stability of the State politics and therefore the whole of the people of Uttar Pradesh are involved, it is not ordinarily possible to shut out any pleadings or materials on the ground of delay and delay alone. Moreover, the amendment application sought to raise in issue the validity of the Speaker's Order dated 7.9.2005. It dealt with the disqualification petition of 4.9.2003. The order of 2005 is inextricably connected with the orders of 2003; it would be a travesty of justice not to take into consideration the arguments and materials with regard to the most current material order. As such, the amendment applications are to be taken as allowed by us in the sense that we permit the order dated 7.9.2005 to be brought under scrutiny and challenge and further that we do not shut out from our scrutiny any of the pleadings or materials, which the petitioners have requested the Court to look into in the matter of disposal of their case before us. The arguments of the respondents against the amendment petition are thus negatived, without in any manner affecting their rights and contentions on the substance of the issues raised, whether in the original petitions or in the amendment petition. On the main front, four main things (and about four comparatively minor points) fall to be decided by us. First, there is the question whether 13 MLAs leaving the party on 27.8.2003, and the other 24 MLAs joining them later on, say, sometime between 1.9. and 6.9.2003, will have the effect of disqualifying both groups, which would not have been the case if all 37 defected at one and the same time. The second important point is whether the split in the original Bahujan Dal, as opposed to the split only amongst the elected and sitting MLAs of the Bahujan Dal is a crucial and material factor; and if so, whether any cogent materials the floor crossing MLAs have failed to bring forward to establish that such split in the original party itself had at all taken place; without the proof of which, whether the defecting MLAs alone have any right either to split from their original party, all by themselves, or join the opponent political party in the House. The third main point is the point of natural justice. The argument was that everything was finished off by the Speaker on 6.9.2003 with unseemly hurry. No breathing time even was given to the Bahujan Dal or its spokesmen adequately to oppose the case of split recognition the floor-crossers. There being a lack of fairness in the hearing, the decision of 6.9.2003 should be set aside. If that decision is set aside, all other decisions of 6.9.2003, 8.9.2003 and 7.9.2005 also fall to the ground. The fourth main point is the point of merger. Is it the correct view to take that the 37 or 40 MLAs did not want to split at all, or form a separate group/faction of their own, but that their real objective was to cross over from Bahujan Dal to Samajwadi Party? If that be the real objective then, whether their attempted merger from the Bahujan Dal into the Samajwadi Party does not have the required fraction of two thirds, because they were only 40 in number and the strength of the Bahujan Dal party in the Legislative Assembly at the material time was 109. These four main topics are taken up one by one now. To set the stage for arguing against the defection of the respondents in driblets, the purpose of introduction of Schedule 10 to the Constitution was emphasized by Mr. Misra. He said that it was inserted after nearly 20 years of debate and consideration to stop the recognized evil of floor crossing. The constitutionality of the insertion was upheld in the case of Kihoto , reported at 1992 (Suppl.) 2 SCC 651. The argument in that case ran that a restriction upon a citizen from joining any party as and when he pleased on the basis of the dictates of his own conscience was an unconstitutional restriction of his absolute political freedom. English sentiments were referred to in that regard. The great parliamentary Speaker Edmund Burke was quoted. The Supreme Court negatived these arguments and upheld the 10 th Schedule. It is true that in England, there is no provision similar to Schedule 10 from the time William the Conqueror set his foot upon the English soil in 1066 until now. Such a provision has never been attempted there. But India is not England. From 1066 upto 1649 when Charles the First was beheaded, Parliament sat but as called for by the Monarch. It could last for 13 days or 13 years; it could be a short Parliament or a long Parliament; it all depended on the King's will and wish; it was only after a bloody civil war that Parliament began to wrest away from the King political and governmental power; it was earned by the people of England after generations of sacrifice and effort. Parliamentary democracy, as it is known in the World today, is a creation of the English Nation. It is made by them according to their own national feelings, sense of priority and their peculiar ethos. Along with the growth of English Parliamentary democracy, the party system has also grown. That is also their creation. There are but two parties in England, Labour and Conservative. The liberal party is just there for a little variation, it never forms the Government now; an Englishman cannot change his party and survive in politics; he belongs to a party for ever; floor crossing for an English politician is like crossing to his own political doom; no English Act of Parliament is necessary; the prohibition is in English blood. We have had democracy served to us on a plate; it was inserted by way of words into our Constitution; there was no war; there was no shedding of blood, nothing at all. Freedom movement and the blood shedding by those who believed in compulsory use of violence against a violent enemy was for freedom, not for democracy as such. Compared to the English history of politics, Indian history of politics is but at a baby stage; our political picture and experience at present is entirely different from the English experience. Parties are numerous. Local parties often rule certain States although they hardly have any all India footing; they can hope to rule the State but never hope to rule the Country. Defections from parties and formation of new parties are every day events. Changing one's party is not the end of political life in India. It might just be a glorious beginning. Many people have done it. Congress-I itself was a breakaway party from Congress-O. In any event the Schedule 10 penalty is a mild one. As can be easily seen from Articles 190 (3), 191 (1) and 191 (2), the MLA loses only his balance term at the worst; he can ask for a ticket from his new party in the next election. If elections are just round the corner, all the better. In the Legislative Assembly of Uttar Pradesh today, there are 16 independent MLAs and members of at least 10 other political parties. In this situation, which is not odd or peculiar to U.P. but is practically the story in every State in India, floor crossing was quite rampant. It was to stop this common and undesirable occurrence that Schedule 10 was inserted. Mr. Misra argued that it is in the light of this history, and in the light of this objective of curbing the rampant evil, that we should determine the issue of members breaking away from a party, group by group. Such group by group breaking away was argued to be unprincipled and unsupportable. If there were one issue, the break would also be one. But if the issue is only one's own political gain, then the break will come slowly, one by one. In our opinion, this type of general argument is not of very great help to a Court of law; the objective of insertion of Schedule 10 must not be lost sight of, but the all important things are the actual words used. This is a Schedule inserted by Legislators for the Legislators. They have allowed freedoms and curbed freedoms; the Court has to interpret the words and the phrases and the objective is to be gathered also mainly from such interpretation and not from any general feeling that floor crossing is to be stopped wherever the Court so can. In the Speaker's first order of 6.9.2003, he laid great emphasis on there being 37 breakaway MLAs before him on the day of the claim itself, i.e. 6.9.2003. The 37 breakaway MLAs were all personally present before him; their heads were counted, they were identified and so were their signatures. The Speaker's order runs to this effect that there being 37 before him on the date of the claim of recognition of a split, it little mattered whether all 37 chose to break away together at the meeting held at Darulshafa, Lucknow on 26.8.2003 or whether only 13 of them broke away first and the other 24 joined them later. The events we have mentioned above, emphasized by the petitioners, like the 13 not mentioning the other 24 to the Governor on 27.8., or husband and wife Mr. and Mrs. Nari allegedly complaining about their being criminally threatened before they joined the breakaway group on 6.9.2003, or the 24 members being seen in the Assembly House sitting with the Bahujan Dal MLAs on 1.9.2003, or the affidavit of the 3 MLA's denying any meeting at all being held at Darulshafa, all seek to establish the fact and the submission that the breaking away took place part by part and not at the same time. The Speaker substantially says that this is not a material or relevant legal consideration. Did the Speaker seriously misdirect himself? An issue of law therefore arises. The decision on this issue is crucial to our case. We shall set out the provisions now to consider whether snowballing is permitting in the matter of splitting away from the original political party. Paragraph 3 of Schedule 10 of the Constitution reads as follows:- "3. Disqualification on ground of defection not to apply in case of split. Where a member of a House makes a claim that he and any other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original political party and such group consists of not less than one third of the members of such legislature party,- (a) he shall not be disqualified under sub-paragraph (1) of paragraph 2 on the ground? (i) that he has voluntarily given up his membership of his original political party; or(b) from the time of such spilt, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph". The first reason why I am of the opinion that party leavers can form their ultimate total group by slowly snowballing is that the words of Paragraph 3 Schedule 10 merely require that at the making of a claim, the total group must consist of not less than one third of the members of the concerned legislature party. In Paragraph 1 (b) of the 10 th Schedule, legislature party means as follows:- " (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 paragraph 3 or, as the case may be, 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." Paragraph 3 requires no particular way for formation of this ultimate group of one third. It can form on one day, it can form slowly over one week, perhaps it can form slowly over a much greater length of time, even one month, or two months. The necessary thing is that at the time of the claim and at the time of consideration of the claim by the Speaker, the group must be not less than one third. The Speaker's jurisdiction to decide on any question of disqualification is given by paragraph 6 of the 10 th Schedule. The first sub-paragraph of that is important and it is set out below:- "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." The time limit or the time period during which a breakaway group has the opportunity to snowball or grow is, in practice, limited by the Speaker's consideration of the question of disqualification and when he takes up the issue. The manner of disqualification, which we are concerned with, is the giving up of one's own party voluntarily by a member. The 40 Bahujan Dal members walked out, out of their own will and volition. It was not a case of voting against the party whip; it was a case of really walking out. In this regard, paragraph 2 (1) (a) is set out below:- "2. Disqualification on ground of defection ?(1) Subject to the provisions of paragraphs 3, 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House? (a) if he has voluntarily given up his membership of such political party". As per the dicta in the case of Naik , reported at 1994 (Suppl.) 2 SCC 641, the going of the 13 MLAs to the Governor on 27.8.2003 is a conduct which leads to the inference that they had voluntarily given up their membership of the Bahujan Dal. They asked the Governor to call the leader of the main opposing party, to be requested to demonstrate his strength. In paragraph-11 in Naik's case, it is said that an inference can be drawn from the conduct of a member that he has voluntarily given up his membership. That inference has to be drawn in regard to the conduct of 27.8.2003 most certainly. The point is, that if the disqualification petition in regard to these 13 members had been made on the 28 th of August instead of the 4 th of September, and if the decision thereon had to be given by the Speaker on 28.8. itself, and upon notice being given to the Bahujan Dal, no others of that party joined the breakaway group of 13 to increase their strength, then the Speaker would have no alternative to disqualifying them. The time gap between 27.8 and 4.9. or 6.9. was all important. That was the gap permitting the snowballing effect. The non-consideration by the Speaker of any question of disqualification during this all important growing period sets the limitation as to how long a breakaway group has available to it for growing and for continuing to grow. Whatever growth they have in their mind or within their means and possibility, must be completed before the Speaker's consideration of disqualification. When disqualification is considered, at that time the respondents and the breakaway members have to demonstrate their strength. No more time will be available to them to grow, but until then, until the Speaker considers the matter, there is nothing in the Constitution, which prevents their further growth, what we have called the snowballing effect. A question will be asked, is the Speaker free to delay the matter as much as he pleases and thereby, at least indirectly encourage the reduction of strength in a party? The question is academically material, but not really material in our case. The disqualification petition was made on 4.9., and the consideration came on 6.9. The time period is too short to allow anybody to argue that the Speaker acted on any extraneous consideration or kept the matter pending unduly long and thereby encouraged further dissent. There is no material to suggest that even if notice had been issued on 4.9. by the Speaker, and the petition of 4.9. heard out on that day itself or even on 5.9., the 13 would not have been supported by the other 24. The argument might have been available if the disqualification petition had been made on 27.8. or 28.8. and in spite of repeated requests for its disposal the Speaker went on waiting, and there were indications that he was waiting only to let the opposers of the Bahujan Dal grow in strength. Such factors are not available here. The question does not really fall for consideration by us. We agree that if instead of on 6.9., the Speaker had decided the disqualification petition on 5.9.2003, his decision might, just might, have been different and he might have disqualified the 13 MLAs if they could not find their supporters on that day. The possibility is there. But that the petition of 4.9., if decided on 5.9., might have yielded a different result than was yielded by the consideration of the question of disqualification on 6.9., does not mean that the decision of 6.9. is automatically rendered bad. There is nothing to indicate that the question of disqualification is to be instantaneously considered by the Speaker. The next argument against snowballing is that, whenever might the Speaker consider the question of disqualification, the effective date of such disqualification must be the date of the offending act, or the date of walking out voluntarily from the party. So here, even when deciding on 6.9., the Speaker should have treated the 13 to have already been disqualified on 27.8. In the case of Dr. Maha Chandra Prasad Singh , reported at (2004) 8 SCC 747, it is stated as follows in paragraph 6: "?on the plain language of paragraph 2, the disqualification comes into force or becomes effective on the happening of the event." Mr. Misra argued that whenever might the Speaker be considering the issue, he has to opine that on 27.8., the 13 MLAs had walked out and thus they had become disqualified on 27.8. itself. It little mattered whether they managed to get 24 more supporters by 6.9. when the decision was actually given. Since the disqualification dates back to the date of the wrongful act, the Speaker must give his decision on that basis also. He cannot make his decision depend upon the time when he is giving the decision. It was therefore material for him to consider whether on 27.8. itself the 13 were on their own, or whether they had already been joined by the other 24. The Speaker thought that this was not a material consideration at all because all 37 were before him on 6.9. He seriously erred in law; his order is liable to be set aside on a judicial review. The following dicta from Kihoto were relied upon from paragraph 94 at page 705: "It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the 10 th Schedule is not a judicial power and is within the non-justiciable legislative area". From paragraph 109 at page 710 "?judicial review?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". It was argued that the Speaker having violated the constitutional mandate of treating a floor crossing MLA as disqualified from the very day he crosses the floor, he rendered his decision liable to be set aside. If he were to give the dates the due importance which those dates deserved, he would come to quite a different conclusion; he would not treat the total group of 37 before him on 6.9. as one and indivisible, irrespective of the history of its growth. He would have to disqualify the 13 because there was no material to show in any convincing way that those 13 had been joined by the other 24 as early as on 27.8., i.e. on the very next day after Ms. Mayawati had resigned and called for a dissolution of the Assembly. This argument is an important one. The argument calls for a reading of paragraphs 2 and 3 together. Is paragraph 2 to be considered by the Speaker individually in respect of every MLA before him on the date of the decision, as the first and the foremost step, or is he to consider the total breakaway group in its totality and count its strength and determine the fraction it bears to the total legislative party as the first and foremost step? Is he to consider paragraph 2 first or is he to consider paragraph 3 first? The order of consideration will yield diametrically opposite results. Even in this case, if he had considered paragraph 2 first, he might well have had to disqualify all 37, as they did not walk away at one and the same time. But because he considered paragraph 3 first, because he thought as a mater of law that the requirements of paragraph 3 being satisfied, it obviated the necessity of considering paragraph 2 separately for any part of the whole group, he gave a decision for the respondents. The importance of the issue is thus clear. Mr. Dwivedi, although he never gave up on facts, argued that if there is a discernible, rational and reasonable continuity in the snowballing effect, if there is sufficient and reasonable proximity in time, then and in that event, the split has to be treated as one split. Otherwise the splitting MLAs would be faced with an almost insuperable obstacle. How could 30 or 40 or 50 MLAs demonstrate in all the usual cases that they decided to walk away at exactly the same point of time or at the same meeting at the very same hour? In the practical world of politics, can there not be a dissident group on Monday and some others join them on Thursday or Friday? Would not the permission given by the Constitution to a group of one third to walk away with impunity be rendered practically unworkable if the proof of an instantaneous split involving of the dissident members were made an absolute legal necessity? Can they not show their conscionable dissidence openly as and when they feel the necessity? Must they keep themselves hidden, until 1/3 rd is formed, so as only to deny the knowledge of real facts to the other side? This issue of an instantaneous split arose in the case of Kihoto, see paragraph 124. The matter was left open to be decided in an appropriate case. Such case has now arisen. I would unhesitatingly accept Mr. Dwivedi's submission that the Constitution does not call for a denial of a right of dissidence to one-third members of a legislative party provided such dissidence takes place within a reasonable length of time and as one understandably continuous process. The dissidence here was sparked off by Ms. Mayawati's decision to have the Assembly dissolved. The dissident group collected in a continuous process within quite a short span of time, even if the facts from the side of the respondents are for the sake of argument discarded and the facts all assumed as suggested by the petitioners. Therefore the Speaker was right in considering the group as a whole first and he would be wrong to deny the protection of paragraph 3 to this group by disqualifying them individually considering the case of each at different previous periods or points of time. In our opinion, an equally strong, perhaps an even stronger point in favour of the respondents would be that in considering paragraph 3, the Speaker has to focus his attention not on whether there has been really a single continuous split or not, but whether there is really one faction, which is the dissident faction. The emphasis is not on 'split', or one split, but on 'faction' and one faction. In paragraph 3 there is a split, there is a faction and there is a group; the faction is of the political party, caused by the split; the group is of the walkaway MLAs, who represent this faction. This faction becomes the new original political party of the dissident group from the time of the split. The Speaker has to see whether there is one faction or not; he has to see whether this same single breakaway group is cohesive or not and whether this cohesive group has one third strength of the legislative party of the old original party. If he finds that the breakaway faction is one and not two, then he cannot and he should not turn this faction notionally into two factions and disqualify the whole group which is presenting itself to him as a single and a whole dissident group. If he has already disqualified some members, well and good, and one can only beat one's chest; but if a decision on disqualification has not already been given, the Speaker must give paragraph 3 its due effect and treat one breakaway faction as one and one only, and not as two, merely because there has been some practical time gap or time period consumed in its formation, which will be there in some form or the other in practically every case. We leave aside cases where the floor crossers cross over group by group, but secretly; the point would not arise there, because the other side would not know the facts. These are two reasons why we are of the opinion that the first point of the petitioners fails and the Speaker was right in not considering the history of the generation of the dissident faction, once he found the faction to be one and once he found the group representing the said faction to be satisfying, even more than satisfying, the minimum strength of one third of the legislative party's strength of the members of the old party. There are several other compelling reasons too. That the Speaker's decision has the effect of disqualification of the MLA, if so ordered, from the date of the resignation or the offending act of the MLA, does not mean that the Speaker, even during the time he is in the process of making the decision and writing it, that he has to consider, think and give primary importance to the date of the MLA's voluntary resignation from the party, in every context of his decision and for every purpose of it. In other words, the dating back of the decision occurs as a matter of law after the decision is given, but that effect should not unduly cloud the Speaker's mind when he is engaged in the decision making process. That an MLA could have been disqualified because of his voluntary resignation at some certain earlier point of time, is no reason why he cannot be counted in the group which constitutes one third or more of the old legislature party. Even if the whole group were to resign from their old party at the very same time and even at the striking of a particular hour of the clock, even so under paragraph 2 of the 10 th Schedule each of them would be liable to be disqualified. Paragraph 2 would apply to them individually nonetheless. But they cannot be disqualified because their liability to be disqualified is removed by the formation of their larger group. That some MLA's could have been disqualified one minute earlier or one day earlier or may be even one month earlier does not alter this sequence of looking at the paragraphs; the Speaker must look at paragraph 3 first and only thereafter at paragraph 2. Otherwise he would go wrong and would never be able to apply paragraph 3. Short of actual disqualification being already ordered by the Speaker in respect of some MLAs, the group offering itself as a whole for consideration under paragraph 3 must be considered as a whole. The case of Naik is interestingly to the point here. There, two members, Bandekar and Chopdekar had been disqualified by the Speaker on 13.12.1990. On the next day, i.e. 14.12.1990, the High Court, however, stayed the operation of the Speaker's order. On 24.12.1990, Naik claimed a split which qualified, according to him under paragraph 3. Naik counted in Bandekar and Chopdekar; on 15.2.1991 the Speaker negatived the claim of Naik and disqualified him. Ultimately Chopdekar and Bandekar lost their writs, their interim orders were vacated and the Supreme Court also refused to interfere in their case. But it said that the Speaker was not right in excluding B&C while considering Naik's claim. Naik's case is really two cases in one. Thus Naik won before the Supreme Court. Because of the High Court's stay order, it was as if the Speaker had not passed the order of disqualification of B&C on 13.12.1990. If there had been no High Court stay, and if the Speaker had not already disqualified B&C, could the Speaker have discounted B&C from the total group claimed by Naik? Not to our mind. An order not passed until then by the Speaker at all, and an order stayed by the High Court are not materially different. It is true that in paragraph 44 in Naik's judgement, the Court did not look at the matter or decide it in this way. It was more concerned with the Speaker not giving effect to the High Court's stay order; perhaps from that point of view a stayed order of the Speaker, when the High Court had intervened, made the case a little stronger for counting in B&C during the period of operation of the stay than if no earlier order of disqualification of B&C had been passed by the Speaker at all. Still there is no contrary opinion of the Supreme Court entitling the Speaker to look at the disqualifying circumstances of B&C once again when they were sought to be counted again in the group of Naik. One should bear in mind that if a paragraph 3 claim of split succeeds, the paragraph 2 claim for disqualification must fail in case of each of such successful MLAs. It is also true vice-versa because the claim of split is as bad as walking out of a party and if the group is not big enough the MLA's all forfeit their balance term . Again, the disqualification of an MLA even on his voluntary resignation is not an automatic consequence. The gate keeper of the Legislative Assembly cannot stop the MLA, saying, Sir, you have resigned yesterday from Bahujan Dal and you cannot come in now. Hardly anybody in this regard is much better off than the gate keeper. Only the Speaker is different; he can decide on the disqualification, but until such decision is given, the MLA is an MLA for all purposes. One such purpose is counting him in in the paragraph 3 group. When paragraph 3 is considered, the date of walking away of the MLA is not very material. What is material is the event of his walking away. For how many has that event occurred? That is the important question, not the list of dates of who walked away when. This brings us to the second main point argued by the petitioners. On the wording of paragraph 3, it was argued, that a split in the original party must be proved. Original party is defined in paragraph 1 (c) of the 10 th Schedule and that is as follows:- "1.(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". Again in paragraph 2 (1) in Explanation (a), it is stated as follows: "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". Even if 37 out of 109 Bahujan MLAs have walked out, only the legislature party is split. This is defined in paragraph 1 (b), which has been set out earlier; but in this case of ours, where is the proof before the Speaker of the split in the original party? Were any minutes tendered before the Speaker showing that so many lacs or millions of the original Bahujan Dal decided to split? A claim that on 26.8.2003, there were some party members along with the MLAs at the Darulshafa in Lucknow is not enough; it is too inadequate. The Bahujan Dal is too big; its party membership is too numerous for it to suffer a split in such a comparatively minor meeting, even if took place on 26.8.2003. There was no intimation that one group was going to split; even the name Loktantrik Bahujan Dal found its place for the first time on paper on 6.9.2003; there were no Newspaper reports; there were no statements of dissatisfied party members; the core of the Bahujan Dal was not asked to "rectify" its behaviour, or else. The threat of a split was not ever made imminent; nothing like this happened; only one evening, it is claimed, the Bahujan Dal had split and a faction had arisen. This is so cursory as not to class as a split in the original party at all. Look at the split in Congress-O, which resulted in Congress-I coming into being. Look at the split in Congress-I in West Bengal and the resulting Trinamul Congress coming into being; was there anything like that here? The answer is a big no. Reliance is placed on the case of Mayawati Vs. Markandey, reported at 1998, 7 SCC 517. The report will show that there was no decision given, but the then Hon. Chief Justice had only opined that the matter be referred to the Constitution Bench for a decision. It is on record in Civil Appeal No.5057 of 1998, i.e. the same case, a five strong Bench of the Supreme Court headed by another Hon. Chief Justice of India ordered on 23.11.2004 that the appeal had become infructuous; as such the appeal was disposed of leaving all questions open. In the report of the judgment, Srinivasan, J . said in paragraph 87 as follows: "It is not sufficient if more than one third members of a legislature party form a separate group and give to themselves a different name without there being a split in the original political party. Thus the factum of split in the original party and the number of members in the group exceeding one third of the members of the legislative party are conditions to be proved." In Naik, in paragraph 38, it is said: "As to whether there was a split or not has to be determined by the Speaker on the basis of the material placed before him." On the basis of these authorities, the petitioners argued that there was no material worth the name before the Speaker to prove any original split in the main Bahujan Dal political party itself. Thus the Speaker had no jurisdiction to recognize the split faction under paragraph 3. For the respondents, the case of Naik itself was relied upon. They showed paragraph 36. There, with reference to paragraph 3, it was said as follows: "The burden, therefore, lay on Naik to prove that the alleged split satisfies the requirements of paragraph 3. The said requirements are:- (i) the member of a House should make a claim that he and other members of his legislature party constitute the group representing a faction which has arisen as a result of a split in his original party; and (ii) such group must consist of not less than one third of the members of such legislature party." The requirement here is not proof of a split of the original political party, but only of a claim of such split. As opposed to this, the objective demonstration of the existence of the one third number is to be made in fact; it is not enough merely to claim that there are one third. Even in paragraph 38 of Naik, which was relied upon by the petitioners, all the proof that the Supreme Court felt satisfied with was a declaration dated 24.12.1990 whereby 8 out of 18 MLAs declared themselves as a split away group; there was really nothing more about the original political party; yet the Supreme Court felt satisfied. So what more proof is required for split of the original political party than a good number of their leaders, who are sitting MLAs, breaking away from that party finally and altogether? And what proof, the respondents asked themselves, was contemplated by Srinivasan, J.? The reader, Mr. Shanti Bhushan, (who appeared for three respondents) said, is only left guessing in this regard. With due respect, he is right. In view of the authorities, we are compelled to look at the language of paragraph 3 very seriously ourselves and give such decision as we are capable of, thereon. The language indeed tallies with the requirement mentioned in paragraph 36 of Naik; in fact that paragraph, in requirement (i), practically quotes the opening portion of paragraph 3. Once a claim of split in the original party is made by more than one third members, it cannot but be held that there has necessarily been a split in the original political party also. The members of the legislature party are necessarily members each of the original political party. If they split, the original political party also splits. No magnitude of the split is mentioned in paragraph 3. What yardstick will the Speaker go by? How many outside members will he consider? Does he have to consider any outside member? The then Speaker, Mr. Tripathi said that the outside members of the Bahujan Dal need not be examined en masse as that would be like opening up Bhanumati's box. |
||
|
||
|
||
| All Copyrights Reserved | ||
