| • Chief Minister, Uttar Pradesh (Fourth-time) |
| • National President, Bahujan Samaj Party (BSP) |
| • Member of Uttar Pardesh Legislative Council |
| KUMARI MAYAWATI | |
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COURT ORDERS |
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| SUPREME COURT ORDER ON BSP DEFECTOR LEGISLATORS | ||
| CASE NO.: Appeal (civil) 765 of 2007 |
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| PETITIONER : SRI RAJENDRA SINGH RANA & ORS RESPONDENT : SWAMI PRASAD MAURYA & ORS DATE OF JUDGMENT : 14-02-2007 BENCH : CJI K.G. BALAKRISHNAN,H.K. SEMA DR. AR. LAKSHMANAN P.K. BALASUBRAMANYAN & D.K. JAIN. JUDGMENT : J U D G M E N T (Arising out of SLP(C) No.4664 of 2006) [ With Civil Appeal Nos.766-771 of 2007 arising out of S.L.P.(C) No. 4669 of 2006, S.L.P.(C) No.4671 of 2006, S.L.P.(C) No.4677 of 2006, S.L.P.(C) No. 6323 of 2006, S.L.P.(C) No. 10497 of 2006 and S.L.P.(C) No. 10498 of 2006 ]. P. K. BALASUBRAMANYAN, J. |
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| 1. Leave granted. 2. The elections for the constitution of the 14th Legislative Assembly of the State of Uttar Pradesh were held in February 2002. Since, none of the political parties secured the requisite majority, a coalition Government was formed, headed by Ms. Mayawati, leader of the Bahujan Samaj Party (hereinafter referred to as, 'B.S.P.'). B.S.P was admittedly a recognised national party. The ministry was formed in May, 2002. On 25.8.2003, the cabinet is said to have taken a unanimous decision for recommending the dissolution of the Assembly. Based on it, on 26.8.2003, Ms. Mayawati submitted the resignation of her cabinet. Apparently, after the cabinet decision to recommend the dissolution of the Assembly and before Ms. Mayawati cabinet actually resigned, the leader of the Samajwadi Party staked his claim before the Governor for forming a Government. On 27.8.2003, 13 Members of the Legislative Assembly (hereinafter referred to as, 'M.L.As.') elected to the Assembly on tickets of B.S.P., met the Governor and requested him to invite the leader of the Samajwadi Party to form the Government. Originally, 8 M.L.As. had met the Governor and 5 others joined them later in the day, making up the 13. 3. The Governor did not accept the recommendation of Mayawati cabinet for dissolution of the Assembly. On 29.8.2003, the Governor invited the leader of the Samajwadi Party, Mr. Mulayam Singh Yadav to form the Government and gave him a time of two weeks to prove his majority in the Assembly. On 4.9.2003, Mr. Swami Prasad Maurya, leader of the Legislature B.S.P filed a petition before the Speaker in terms of Article 191 read with the Tenth Schedule to the Constitution of India, praying that the 13 B.S.P. M.L.As. who had proclaimed support to Mulayam Singh Yadav before the Governor on 27.8.2003, be disqualified in terms of paragraph 12 of the Tenth Schedule to the Constitution on the basis that they had voluntarily given up their membership of B.S.P., their original political party. On 05.09.2003, a caveat was also filed on behalf of the B.S.P. before the Speaker of the Legislative Assembly requesting the Speaker to hear the representative of B.S.P. in case any claim of split is made by the members who had left the Party. On 06.09.2003, a request was made by 37 M.L.As., said to be on behalf of 40 M.L.As. elected on B.S.P. tickets, requesting the Speaker to recognise a split in B.S.P. on the basis that one third of the Members of the B.S.P. legislature party consisting of 109 legislators, had in a body separated from the Party pursuant to a meeting held in the M.L.A.'s hostel, Darulshafa, Lucknow on 26.8.2003. The Speaker took up the said application for recognition of a split, the same evening. He verified that the 37 Members who had signed the application presented to him had in fact signed it since they were physically present before him. Overruling the objections of Maurya, the leader of the legislature B.S.P., the Speaker passed an order accepting the split in B.S.P. on the arithmetic that 37 out of 109 comprises one third of the Members of the legislature Party. This group came to be known as the Lok Tantrik Bahujan Dal. But, the said Dal was short lived. For, the Speaker, a little later, on 6.9.2003 itself, accepted that the said Dal had merged with the Samajwadi Party. It is relevant to note that in the order dated 6.9.2003, the Speaker did not decide the application made by B.S.P. seeking disqualification of 13 of its M.L.As. who were part of the 37 that appeared before the Speaker and postponed the decision on that application. It appears that on 8.9.2003, three more M.L.As. appeared before the Speaker stating that they supported the 37 M.L.As. who had appeared before him on 6.9.2003 and were part of that group. The Speaker accepted their claim as well. 4. On 29.9.2003, Writ Petition No. 5085 of 2003 was filed in the High Court of Judicature at Allahabad before the Lucknow Bench challenging the said order of the Speaker. On 1.10.2003, it came up before a Division Bench of the High Court, and it is seen from the Order Sheet maintained by the High Court that the Writ Petition was irected to be listed on 8.10.2003 for further hearing. It was adjourned to 13.10.2003 and then again to 22.10.2003 and to 29.10.2003 and further to 5.11.2003. It is recorded in the Order Sheet that on 5.11.2003, learned counsel for the writ petitioner was heard in detail. No order was passed, but the matter was adjourned to the next day at the request of counsel, who was apparently representing the Advocate General of the State. From 6.11.2003, the matter was adjourned to 10.11.2003 and on the request of the learned Advocate General, it was directed to be listed on 14.11.2003. The same day, the Speaker before whom the petition filed by the writ petitioner Maurya seeking disqualification of 13 of the members of the B.S.P. was pending, after noticing what he had done earlier on 6.9.2003 and 8.9.2003, passed an order adjourning the petition seeking disqualification, on the ground that it would be in the interests of justice to await the decision of the High Court in the pending Writ Petition since the decision therein on some of the issues, would be relevant for his consideration. It was therefore ordered that the petition for disqualification may be placed before him for disposal and necessary action after the High Court had decided the Writ Petition. 5. In the High Court, the Writ Petition had a chequered career. On 14.12.2003, when it came up, it was directed to be listed the next week before the appropriate Bench. On 16.4.2004, it was directed to be put up on 22.4.2004. On 22.4.2004, it was dismissed for default with an observation that neither any counsel on behalf of the writ petitioner nor on behalf of the Speaker was present. It may be noted that on 5.11.2003, the High Court had recorded that it had heard counsel for the writ petitioner in full and the adjournment for further hearing was at the behest of the Advocate General. Even then, on 22.4.2004, the High Court chose to dismiss the Writ Petition for default on the ground that counsel on both sides were not present. An application for restoration was filed on 27.4.2004 and this application was kept pending for about 8 months until on 20.12.2004, an order was passed recalling the order dated 22.4.2004 dismissing the Writ Petition for default and restoring it to its original number with a further direction to list the Writ Petition before the appropriate Bench on 4.1.2005. On 4.1.2005, the Writ Petition was adjourned at the request of the Advocate General to the next day. On 5.1.2005, it was noticed by the Bench that the matter appeared to have been heard in detail at the admission stage and the Writ Petition had neither been admitted nor any notice ordered to the respondents and counsel for the writ petitioner was again heard on the question of admission and the application for interim relief he had filed and it was recorded that he had concluded his arguments with the further direction to put up the Writ Petition the next day. On 6.1.2005, it was recorded that counsel for the writ petitioner did not press for interim relief at that stage and hence the application for interim relief was being rejected. 6. On 6.1.2005, the Writ Petition was admitted after hearing counsel for the writ petitioner and some counsel who appeared for the respondents. Notices were ordered to be issued to the opposite parties, the group of M.L.As. who had moved the Speaker for recognition of a split. After some further postings, on 18.2.2005, orders were passed regarding service of notice and the Writ Petition was directed to be posted for hearing on 10.3.2005. On 10.3.2005, finding that there was some attempt at evasion of notices, the court ordered substituted service of notices and directed the listing of the Writ Petition on 11.4.2005. On 11.4.2005, service of notice was declared sufficient and the matter was directed to be posted on 2.5.2005 for hearing. After a number of adjournments mainly at the instance of the respondents in the Writ Petition, arguments were commenced. On 12.5.2005, counsel for the writ petitioner concluded his arguments and the case was further adjourned to 25.5.2005 for further hearing after taking certain counter affidavits on record. Ultimately, the argument of one of the counsel for the respondents was started and the matter was adjourned to 6.7.2005 for completion of his arguments and for arguments by other counsel for the respondents in the Writ Petition. 7. Meanwhile, on 7.9.2005, the Speaker passed an order rejecting the petition filed by Maurya for disqualification of 13 M.L.As. of B.S.P. It may be noted that the Speaker had earlier adjourned that application for being taken up after the Writ Petition was decided. Meanwhile, the arguments went on in the High Court and the Writ Petition was directed to be put up on 17.8.2005 for further arguments. The matter was adjourned to the next day and again to subsequent dates. 8. On 8.9.2005, an application was made on behalf of the respondents seeking dismissal of the Writ Petition in view of the order of the Speaker dated 7.9.2005 dismissing the application seeking disqualification of 13 M.L.As. filed by the writ petitioner. The said application was dismissed the same day. On 9.9.2005, arguments were heard and the matter was adjourned for further hearing. 9. On 21.10.2005, an application was made on behalf of the writ petitioner praying for an amendment of the Writ Petition. It was directed to be listed granting time to the respondents in the Writ Petition to file objections. On 22.11.2005, the Order Sheet records an order by one of the judges as follows: "The matter was listed today only for consideration and disposal of the amendment application together with application for further hearing and by 4.00 PM arguments with respect to amendment application could be concluded. As indicated in the order passed on the application brother M.A. Khan (J) took out a typed and signed 'order' rejecting the application for amendment. Like previous order, brother Hon'ble M.A. Khan again took out a duly typed and signed judgment/ his opinion and directed the bench Secretary to place the same on record as his "judgment" in the main writ petition. The draft of the said judgment was also not circulated to me nor was I ever been consulted by him. It is further pointed out that brother Hon'ble M.A. Khan (J) did not indicate at any time that he had already written out the judgment. Further at no point of time, I had indicated to brother M.A. Khan (J) that the judgment in the writ petition may be prepared by him. It goes without saying that neither the orders passed on the application nor the so called judgment on the merits of the writ petition have been dictated in the open court by brother Hon'ble M.A. Khan(J)." 10. Apparently, in view of these happenings, the learned Chief Justice constituted a Full Bench for hearing the Writ Petition. The amendment prayed for was allowed and the Writ Petition ultimately heard finally and disposed of by the judgment under appeal. As per the judgment under appeal, the Writ Petition was dismissed by the learned Chief Justice while the other two learned Judges quashed the orders of the Speaker and directed the Speaker to reconsider the matter with particular reference to the petition for disqualification of 13 M.L.As. filed by the writ petitioner and pass appropriate orders. Feeling aggrieved, these appeals have been filed. 11. Whatever may be our ultimate decision on the merits of the case, we must express our unhappiness at the tardy manner in which a matter of some consequence and constitutional propriety was dealt with by the High Court. More promptitude was expected of that court and it should have ensured that the unfortunates happenings (from the point of view of just and due administration of justice) were avoided. Though we are normally reluctant to comment on the happenings in the High Court, we are constrained to make the above observations to emphasis the need to ensure that no room is given for criticism of the manner of working of the institution. 12. The respondents in the Writ Petition, the M.L.As. constituting 37 B.S.P. members who left the party, are the appellants in all the appeals except the appeal arising out of Special Leave Petition (Civil) No. 6323 of 2006 filed by the writ petitioner Maurya. Whereas, the respondents in the Writ Petition challenge the decision of the majority of the Bench remitting the matter to the Speaker, the writ petitioner, in his appeal challenges the order of remand made by the majority on a plea that on the pleadings and the materials available, the High Court ought to have straightaway allowed the petition filed by the writ petitioner for disqualification of the 13 M.L.As. According to him, a remand was unnecessary and considering the circumstances, a final order ought to have been passed by the High Court. 13. Article 191 of the Constitution of India deals with the disqualification for membership of legislative assemblies just like Article 102 deals with disqualification for membership to the Houses of Parliament. Article 102 and Article 191 came to be amended by the Constitution (Fifty-second Amendment) Act, 1985 with effect from 1.3.1985 providing that a person shall be disqualified for being a member of either Houses of Parliament or of Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule to the Constitution of India. The Tenth Schedule was also added containing provisions as to disqualification on ground of defection. The constitutional validity of this amendment was challenged before this Court in KIHOTO HOLLOHAN Vs. ZACHILLHU & ORS. [(1992) 1 S.C.R. 686]. This Court upheld the validity of the amendment subject to the finding that paragraph 7 of the Tenth Schedule to the Constitution of India required ratification in terms of Article 368(c) of the Constitution of India and it had not come into force, so that there was no need to pronounce on the validity of paragraph 7 to the extent it precluded a judicial review of the decision of the Speaker. But it held that judicial review could not be kept out, though such review might not be of a wide nature. We are proceeding to examine the relevant aspects in the light of that decision. 14. The application by writ petitioner - Maurya to the Speaker, in the present case, was made under paragraph 2 of the Tenth Schedule to the Constitution on the ground that the 13 Members who met the Governor on 27.8.2003 had voluntarily given up their membership of B.S.P., their original political party as defined in the Tenth Schedule. The claim on behalf of the M.L.As. sought to be disqualified and those who claimed to have gone out with them from B.S.P. is that the disqualification at the relevant time is subject to the provisions of paragraphs 3, 4 and 5 of the Tenth Schedule and since there has been a split in B.S.P in terms of paragraph 3 of the Tenth Schedule and a subsequent merger of the 40 M.L.As. with the Samajwadi Party in terms of paragraph 4 of the Tenth Schedule, they could not be held to be disqualified on the ground of defection in terms of paragraph 2(1)(a) of the Tenth Schedule. The Speaker, as noticed, did not pass any order on the application for disqualification of 13 M.L.As. made by Maurya, the leader of the B.S.P. Legislature Party in terms of paragraph 2 of the Tenth Schedule but proceeded to pass an order on the petition filed by 37 M.L.As. before him, claiming that there has been a split in B.S.P. and they constituted one third of the Legislature Party which had 109 members. When he passed the order on the claim of the M.L.As. who had left B.S.P., the then Speaker postponed the decision on the petition for disqualification filed by Maurya, later adjourned it to await the decision in the Writ Petition, but still later, the successor Speaker went back on that order and proceeded to dismiss it after entertaining an alleged preliminary objection even while the Writ Petition was still pending and it was being argued, on the ground that he had already recognised the split. 15. It was thereafter that the writ petitioner sought for an amendment of the Writ Petition which was subsequently allowed. |
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