| • 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 | ||
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| 16. We will now revert to the action that triggered the controversy. Eight of the M.L.As. of B.S.P. followed by five other members of B.S.P. handed over identically worded letters to the Governor on 27.8.2003. A running translation of the letters is as under: "We under mentioned M.L.As. whose signatures are marked below humbly request you that Shri Mulayam Singh Yadav Ji be invited to form Government because the public of Uttar Pradesh neither want election nor want President Rule." These members were the members who belonged to B.S.P. and they were requesting the Governor to invite the leader of the opposition to form the Government. It is based on this action, that Maurya, the leader of the Legislature B.S.P., had filed the petition before the Speaker seeking disqualification of these 13 members on the ground that they had voluntarily left B.S.P.,
recognised by the Election Commission as a national party. It was while this proceeding was pending that on 6.9.2003, an application for recognition of a split was moved by the 37 M.L.As. before the Speaker. Since the leader of B.S.P. had filed a caveat before the Speaker, the Speaker chose to hear the caveator while passing the order. Considering the nature of the controversy involved, it appears to be proper to quote the said representation or application made by the 37 M.L.As. before the Speaker. The running translation of the same reads: "We, the following Members of the Legislative Assembly, are notified as Members belonging to Bahujan Samaj Party. There is dissatisfaction prevalent among the members of BSP on account of dictatorial approach, wrong policies and misbehaviour towards the Members as practiced by the BSP Leader Km. Mayawati. Being aggrieved on account of the aforesaid reasons, Members, office bearers and workers of the Bahujan Samaj Party held a meeting in Darulsafa on 26.08.2003. All present unanimously stated that Km. Mayawati is occupied with fulfilment of her personal interests alone at the cost of interests of the State of U.P. and society. Hence, it was unanimously resolved that the Bahujan Samaj Party be split up and a new faction in the name of Loktantrik Bahujan Dal be constituted under the Leadership of Shri Rajendra Singh Rana, Member Legislative Assembly. We, the undersigned Members of Legislative Assembly have constituted a separate group which represents the new faction arising out of the split. Our number is more than one third of the total number of Members of the erstwhile Bahujan Samaj Party of the Legislative Assembly.It is, therefore, requested that the aforesaid Loktantrik Bahujan Dal be recognised as a separate group within the Legislative Assembly and a separate arrangement for their seating inside the Assembly be made." It was signed by 37 M.L.As.
17. It is on this application that the Speaker passed an order the same evening and it is that order that is the subject matter of challenge in the Writ Petition filed before the High Court. The order of the Speaker records that as per the contents of the application, a meeting of members, office bearers and Members of Legislative Assembly belonging to B.S.P. was held on 26.8.2003 in the Darulshafa and in this meeting, it was unanimously resolved that a new faction in the name of Loktantrik Bahujan Dal under the leadership of Rajendra Singh Rana be constituted. The Speaker proceeded to reason that the number of members who have constituted the group are seen to be 37 out of 109 and that would constitute one-third of the total number of Legislators belonging to B.S.P. In view of the objections raised by Maurya, who had filed the caveat before him, the Speaker verified whether 37 members had signed the representation or application. Since they were present before him and were identified, he proceeded on the footing that 37 M.L.As. of B.S.P. had appeared before him with the claim. The Speaker noticed the contention of the caveator that the burden of proving any split in the original political party lay on the 37 M.L.As. and that unless they establish a split in the original political party, they could not resort to paragraph 3 of the Tenth Schedule to the Constitution and claim that there has been a split in the political Party and consequently they have not incurred disqualification under paragraph 2 of the Tenth Schedule. Further, overruling the contention of the caveator that the decision relating to the split could be taken only by the Election Commission and overruling the contention that the original 13 members who had left the Party or voluntarily given up their membership of the Party did not constitute one-third of the total number of the Legislators belonging to B.S.P. and hence they are disqualified, the Speaker proceeded to say that the first condition to satisfy the requirement of paragraph 3 of the Tenth Schedule was only that the members must have made a claim that the original legislature Party had split and they should show that as a consequence, the legislature Party has also split and that the split group had one-third of the members of the legislature Party. Therefore, the Speaker taking note of the one-third legislators before him proceeded on the basis that it would be sufficient if a claim is made of a split in the original political Party. The Speaker formulated the position thus: "Under para 3 following conditions have to be fulfilled:-
If in a case the aforesaid two conditions are fulfilled, the person making such a claim and the other members will not be disqualified from the membership of the Legislative Assembly on the grounds mentioned in para 2 of the 10th Schedule." The Speaker also overruled the argument that only 13 M.L.As. had originally quit the original political party and they should be disqualified and the others subsequently joining them would not improve the position. The Speaker proceeded to observe that he had to decide the question of disqualification of the 13 M.L.As. raised by Maurya functioning as a Tribunal
and he would be taking a decision thereon at the appropriate time. It was thus that the claim of 37 members of a split, was recognised by the Speaker. The Speaker thus did not decide whether there was a split in the original political party, even prima facie.
But the Speaker failed to notice the following sentence in paragraph 38 of the same judgment wherein it was stated: "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." Thus, there was no finding by the Speaker that there was a split in the original political party, a condition for application of paragraph 3 of the Tenth Schedule. 20. Now we may notice the position adopted by the High Court in the judgment under Appeal while dealing with the Writ Petition filed by Maurya challenging the order of the Speaker. The learned Chief Justice took the view that the Speaker was justified in finding a split on the basis of a claim of split in the original political party and one-third members of the legislature party separating by taking into account all events upto the time of his taking a decision on the question of split. The learned Chief Justice held that the snowballing effect of a split could be taken note of and that the Speaker had not committed any illegality in not considering and deciding the petition filed by Maurya seeking disqualification of 13 M.L.As. in the first instance and in keeping it pending. He thus upheld the decision of the Speaker. But the other two learned judges, though they gave separate reasons, basically took the view that the Speaker was in error in not deciding the application seeking disqualification of the 13 members first and in proceeding to decide the application for recognition of a split made by the 37 legislators before him. Since the proceeding arose out of a petition seeking a disqualification in terms of paragraph 2 of the Tenth Schedule to the Constitution, in terms of paragraph 6 of the Tenth Schedule, a decision on the claim for disqualification could not be kept by, even while recognising a split. They therefore quashed the order of the Speaker and directed the Speaker to reconsider the question of defection raised by the writ petitioner Maurya, in the light of the stand adopted by some of the M.L.As. before the Speaker that there has been a split in terms of paragraph 3 of the Tenth Schedule and so they have not incurred the disqualification in terms of paragraph 2 of the Tenth Schedule. This majority view and the interference with the order of the Speaker is challenged by the various respondents in the Writ Petition forming the group of 37. The writ petitioner himself has challenged that part of the order which purports to remand the proceeding to the Speaker by taking up the position that on the materials, the High Court ought to have straightaway held that the defence under paragraph 3 of the Tenth Schedule to the Constitution has not been made out by the 37 members of B.S.P. and that the 13 of them in the first instance and the balance 24 in the second instance stood disqualified in terms of paragraph 2(1)(a) of the Tenth Schedule to the Constitution. 21. Elaborate arguments have been raised before us on the interpretation of the Tenth Schedule, the content of the various paragraphs and on the facts of the present case. Based on the arguments it is first necessary to deal with the scope and content of the Tenth Schedule in the light of the object with which it was enacted. 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 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 (supra) 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. 23. Learned counsel for the writ petitioner raised an interesting argument. He submitted that the Speaker in terms of paragraph 6 of the Tenth Schedule was called upon to decide the question of disqualification and only to a decision by him on such a question, that the qualified finality in terms of paragraph 6(1) got attached and not to a decision independently taken, purporting to recognise a split. He pointed out that in this case, the Speaker had not decided the petition for disqualification filed against the 13 M.L.As., and the Speaker had only proceeded to decide the application made by 37 members subsequently for recognising them as a separate group on the ground that they had split from the original B.S.P. in terms of paragraph 3 of the Tenth Schedule. He submitted that no such separate decision was contemplated in a proceeding under the Tenth Schedule since the claim of split was only in the nature of a defence to a claim for disqualification on the ground of defection and it was only while deciding the question of defection that the Speaker could adjudicate on the question whether a claim of split has been established. When an independent decision is purported to be taken by the Speaker on the question of split alone, the same was a decision outside the Tenth Schedule to the Constitution and consequently, the decision of the Speaker was open to challenge before the High Court just like the decision of any other authority within the accepted parameters of Articles 226 and 227 of the Constitution. In other words, according to him, the qualified finality conferred by paragraph 6(1) of the Tenth Schedule was not available to the order of the Speaker in this case. 24. On behalf of the 37 M.L.As., it is contended that it is not correct to describe paragraphs 3 and 4 of the Tenth Schedule merely as defences to paragraph 2 and the allegation of defection, that paragraphs 3 and 4 confer independent power on the speaker to decide a claim made under those paragraphs. It is submitted that reliance placed on paragraph 6 and the contention that a question of disqualification on the ground of defection must arise, before the Speaker could decide as a defence or answer, the claim of split or the claim of merger was not justified. Whatever be the decisions that were taken by the Speaker in terms of paragraph 3, paragraph 4 or paragraph 2 of the Tenth Schedule, enjoyed the qualified immunity as provided in paragraph 6 of the Tenth Schedule. 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 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 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. 26. In a sense, this aspect may not be of a great importance in this case since going by the stand adopted on behalf of the 37 M.L.As., the Speaker was justified in keeping the petition seeking disqualification of 13 M.L.As. pending, even while he proceeded to accept a case of split in the BSP. The question really is whether the Speaker was justified in doing so. As we have indicated above, the whole proceeding under the Tenth Schedule to the Constitution is initiated or gets initiated as a part of disqualification of a member of the House. That disqualification is by way of defection. The rules prescribed by various legislatures including the U.P. legislature contemplate the making of an application to the Speaker when there is a complaint that some member or members have voluntarily given up his membership or their memberships in the party. It is only then that in terms of the Tenth Schedule, the Speaker is called upon to decide the question of disqualification raised before him in the context of paragraph 6 of the Tenth Schedule. Independent of a claim that someone has to be disqualified, the scheme of the Tenth Schedule or the rules made thereunder, do not contemplate the Speaker embarking upon an independent enquiry as to whether there has been a split in a political party or there has been a merger. Therefore, in the context of Articles 102 and 191 and the scheme of the Tenth Schedule to the Constitution, we have no hesitation in holding that the Speaker acts under the Tenth Schedule only on a claim of disqualification being made before him in terms of paragraph 2 of the Tenth Schedule. 27. The Speaker, as clarified in Kihoto Hollohan (supra), has necessarily to decide that question of disqualification as a Tribunal. In the context of such a claim against a member to disqualify him, that member, in addition to a plea that he had not voluntarily given up his membership of the Party or defied the whip issued to him, has also the right to show that there was a split in the original political party that other legislators have also come out of the legislature party as a consequence of that split, that they together constituted one-third of the total number of legislators elected on the tickets of that party. He has also the right to take up a plea that there has been a merger of his party with another party in terms of paragraph 4 of the Tenth Schedule. Call it a defence or whatever, a claim under paragraph 3 as it existed prior to its deletion or under paragraph 4 of the Tenth Schedule, are really answers to a prayer for disqualifying the member from the legislature on the ground of defection. Therefore, in a case where a Speaker is moved by a legislature party or the leader of a legislature party to declare certain persons disqualified on the ground that they have defected, it is certainly open to them to plead that they are not guilty of defection in view of the fact that there has been a split in the original political party and they constitute the requisite number of legislators or that there has been a merger. 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. It is part and parcel of his jurisdiction as a Tribunal while considering a claim for disqualification of a member or members to decide that question not only in the context of the plea raised by the complainant but also in the context of the pleas raised by those who are sought to be disqualified that they have not incurred disqualification in view of a split in the party or in view of a merger. 28. The decision of a Full Bench of the Punjab & Haryana High Court in Prakash Singh Badal Vs. Union of India & Ors. [A.I.R. 1987 Punjab & Haryana 263] was relied upon to contend that the Speaker gets jurisdiction to render a decision in terms of the Tenth Schedule to the Constitution of India only when in terms of paragraph 6 thereof a question of disqualification arose before him. The Full Bench by a majority held: "Under, para. 6, the Speaker would have the jurisdiction in this matter only if any question arises as to whether a member of the House has become subject to disqualification under the said Schedule and the same has been referred to him for decision. The purpose of requirement of a reference obviously is that even when a question as to the disqualification of a member arises, the Speaker is debarred from taking suo motu cognizance and he would be seized of the matter only when the question is referred to him by any interested person. The Speaker has not been clothed with a suo motu power for the obvious reason that he is supposed to be a non-party man and has been entrusted with the jurisdiction to act judicially and decide the dispute between the conflicting groups. The other prerequisite for invoking the jurisdiction of the Speaker under para. 6 is the existence of a question of disqualification of the some member. Such a question can arise only in one way, viz., that any member is alleged to have incurred the disqualification enumerated in para 2(1) and some interested person approaches the Speaker for declaring that the said member is disqualified from being member of the House and the claim is refuted by the member concerned." It was argued on behalf of the 37 M.L.As. that this position adopted by the Full Bench does not reflect the correct position in law since there is nothing in the Tenth Schedule which precludes the Speaker from rendering an adjudication either in respect of a claim under paragraph 3 of the Schedule or paragraph 4 of the Schedule, independent of any question arising before him in terms of paragraph 2 of the Schedule. Considering the scheme of the Tenth Schedule in the context of Articles 102 and 191 of the Constitution and the wording of paragraph 6 and the conferment of jurisdiction on the Speaker thereunder, we are inclined to the view that the position adopted by the majority of the High Court of Punjab & Haryana in the above decision as to the scope of the Tenth Schedule, reflects the correct legal position. Under the Tenth Schedule, the Speaker is not expected to simply entertain a claim under paragraphs 3 and 4 of the Schedule without first acquiring jurisdiction to decide a question of disqualification in terms of paragraph 6 of the Schedule. The power if any, he may otherwise exercise independently to recognise a group or a merger, cannot be traced to the Tenth Schedule to the Constitution. The power under the Tenth Schedule to do so accrues only when he is called upon to decide the question referred to in paragraph 6 of that Schedule. |
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