KUMARI MAYAWATI
	• Chief Minister, Uttar Pradesh (Fourth-time) • National President, Bahujan Samaj Party (BSP) • Member of Uttar Pardesh Legislative Council

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	SUPREME COURT ORDER ON BSP DEFECTOR LEGISLATORS
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	29.  In the case on hand, the Speaker had a petition moved before him for disqualification of 13 members of the B.S.P. When that application was pending before him, certain members of B.S.P. had made a claim before him that there has been a split in B.S.P. The Speaker, on the scheme of the Tenth Schedule and the rules framed in that behalf, had to decide the application for disqualification made and while deciding the same, had to decide whether in view of paragraph 3 of the Tenth Schedule, the claim of disqualification has to be rejected. We have no doubt that the Speaker had totally misdirected himself in purporting to answer the claim of the 37 M.L.As. that there has been a split in the party even while leaving open the question of disqualification raised before him by way of an application that was already pending before him. This failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure. It goes against the very constitutional scheme of adjudication contemplated by the Tenth Schedule read in the context of Articles 102 and 191 of the Constitution. It also goes against the rules framed in that behalf and the procedure that he was expected to follow. It is therefore not possible to accept the argument on behalf of the 37 M.L.As. that the failure of the Speaker to decide the petition for disqualification at least simultaneously with the petition for recognition of a split filed by them, is a mere procedural irregularity. We have no hesitation in finding that the same is a jurisdictional illegality, an illegality that goes to the root of the so called decision by the Speaker on the question of split put forward before him. Even within the parameters of judicial review laid down in Kihoto Hollohan (supra) and in Jagjit Singh vs. State of Haryana ( 2006(13) SCALE 335) it has to be found that the decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review. 30.  There is another aspect. The Speaker, after he kept the determination of the question of disqualification pending, passed an order that the said petition will be dealt after the High Court had taken a decision on the Writ Petition pending before it and directed that the said petition be taken up after the Writ Petition was disposed of. Then, suddenly, without any apparent reason, the Speaker took up that application even while the Writ Petition was pending and dismissed the same on 7.9.2005 by purporting to accept a so called preliminary objection raised by the 13 M.L.As. sought to be disqualified, to the effect that his recognition of the split of the 37 M.L.As. including themselves, has put an end to that application. This last order is clearly inconsistent with the Speaker's earlier order dated 14.11.2003 and still leaves open the question whether the petition seeking disqualification should not have been decided first or at least simultaneously with the application claiming recognition of a split. If the order recognising the split goes, obviously this last order also cannot survive. It has perforce to go. 31.  Considerable arguments were addressed on the scope of paragraph 2 and paragraph 3 of the Tenth Schedule with particular reference to the point of time that must be considered to be relevant. Whereas it was argued on behalf of leader of B.S.P. that the liability or disability is incurred at the point of voluntarily giving up the membership of the political party, according to the 37 M.L.As. who left, the relevant point of time is the time when the Speaker takes a decision on the plea for disqualification. As a corollary to the above, the contention on the one side is that if on the day the disqualification is incurred there has been no split in terms of paragraph 3, those disqualified who had given up their membership of the party must be declared disqualified, the argument on the other side is that if by the time the Speaker takes the decision, the persons sought to be disqualified are able to show that there has been a split in the original party and by that time they have a strength of one third of the Legislature party, the Speaker will have necessarily to accept the split and reject the petition for disqualification. In other words, according to this argument all developments until the point of decision by the Speaker are to be taken note of by him, while deciding the question of disqualification. They canvas the acceptance of what the learned Chief Justice of the High Court has called the snowballing effect of persons severing their connections with the original party and joining the quitters subsequently and not confining the decision to the point of their alleged severing their connection with the original party. 32.  It is argued on behalf of 37 MLAs that the disqualification on the ground of defection should not be held as a sword of Damocles against honest political dissent and the prevention of honest political dissent is not the object sought to be achieved by the Tenth Schedule. This submission is sought to be supported by the argument that at the relevant time paragraph 3 provided that if on the basis of a split in the original party one third of the members of the Legislature party have voluntarily give up their membership of the original political party, they could not be disqualified. The relevant observations in Kihoto Hollohan (supra) are referred to. It is also pointed out that paragraph 4 which is still retained, also contemplates leaving of one's own party by merging of that party with another political party though by definition, that may also amount to defection in terms of paragraph 2. 33.  It may be true that collective dissent is not intended to be stifled by the enactment of sub-article (2) of Articles 102 and 191 of the Tenth Schedule. But at the same time, it is clear that the object is to discourage defection which has assumed menacing proportions undermining the very basis of democracy. Therefore, a purposive interpretation of paragraph 2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called for. One thing is clear that defection is a ground for disqualifying a member from the House. He incurs that disqualification if he has voluntarily given up his membership of his original political party, meaning the party on whose ticket he had got elected himself to the House. In the case of defiance of a whip, the party concerned is given an option either of condoning the defiance or seeking disqualification of the member concerned. But, the decision to condone must be taken within 15 days of the defiance of the whip. This aspect is also relied on for the contention that the relevant point of time to determine the question is when the Speaker actually takes a decision on the plea for disqualification. 34.  As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the Legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty Second Amendment of the Constitution and on a true understanding of paragraph 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of paragraph 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible. We are, therefore, of the view that the contention that only on a decision of the Speaker that the disqualification is incurred, cannot be accepted. This would mean that what the learned Chief Justice has called the snowballing effect, will also have to be ignored and the question will have to be decided with reference to the date on which the membership of the Legislature party is alleged to have been voluntarily given up. 35.  In the case on hand, the question would, therefore be whether on 27.3.2003 the 13 members who met the Governor with the request to invite the leader of the Samajwadi Party to form the Government had defected, on 27.8.2003 and whether they have established their claim that on 26.8.2003 there had been a split in the Bahujan Samaj Party and one third of the members of the Legislature of that party had come out of that party. It may be noted that the clear and repeated plea in the counter affidavit to the writ petition is that a split had occurred on 26.8.2003. This was also the stand of the petitioner before the Speaker for recognition of a split. The position as on 6.9.2003 when the 37 MLAs presented themselves before the Speaker would not have relevance on the question of disqualification which had allegedly been incurred on 27.8.2003. 36.  The question whether for satisfying the requirements of paragraph 3, it was enough to make a claim of split in the original political party or it was necessary to at least prima facie establish it, fell to be considered in the decision in Jagjit Singh Vs. State of Haryana (supra) rendered by a Bench of three Judges to which one of us, (Balasubramanyan, J.) was a party. Dealing with an argument that a claim of split in the original political party alone is sufficient in addition to showing that one-third of the members of the legislature Party had formed a separate group, the learned Chief Justice has explained the position as follows: "Learned counsel for the petitioner, however, relies upon paragraph 37 in Ravi S. Naik's case in support of the submission that only a claim as to split has to be made and it is not necessary to prove the split. The said observations are: 'In the present case the first requirement was satisfied because Naik has made such a claim. The only question is whether the second requirement was fulfilled.' The observations relied upon are required to be appreciated in the light of what is stated in the next paragraph, i.e., paragraph 38, namely: '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.' Apart from the above, the acceptance of the contention that only claim is to be made to satisfy the requirements of paragraph 3 can lead to absurd consequences besides the elementary principle that whoever makes a claim has to establish it. It will also mean that when a claim as to split is made by a member before the speaker so as to take benefit of paragraph 3, the Speaker, without being satisfied even prima facie about the genuineness and bonafides of the claim, has to accept it. It will also mean that even by raising a frivolous claim of split of original political party, a member can be said to have satisfied this stipulation of paragraph 3. The acceptance of such broad proposition would defeat the object of defection law, namely, to deal with the evil of political defection sternly. We are of the view that for the purposes of paragraph 3, mere making of claim is not sufficient. The prima facie proof of such a split is necessary to be produced before the Speaker so as to satisfy him that such a split has taken place." 37.  Thus, in the above decision, it has been clarified that it is not enough that a claim is made of a split in the original party, in addition to showing that one third of the members of the Legislature Party have come out of the party, but it is necessary to prove it at least prima facie. Those who have left the party, will have, prima facie, to show by relevant materials that there has been a split in the original party. The argument, therefore, that all that the 37 MLAs were required to do was to make a claim before the Speaker that there has been a split in the original party and to show that one third of the members of the Legislature party have come out and that they need not produce any material in support of the split in the original political party, cannot be accepted. The argument that the ratio of the decision in Jagjit Singh (supra) requires to be reconsidered does not appeal to us. Even going by Ravi S. Naik (supra) it could not be said that the learned Judges have held that a mere claim in that behalf is enough. As pointed out in Jagjit Singh (supra) the sentence in paragraph 37 in Ravi S. Naik's case (supra) cannot be read in isolation and it has to be read along with the relevant sentence in paragraph 38 quoted in Jagjit Singh (supra). 38.  Acceptance of the argument that the legislators are wearing two hats, one as members of the original political party and the other as members of the legislature and it would be sufficient to show that one third of the legislators have formed a separate group to infer a split or to postulate a split in the original party, would militate against the specific terms of paragraph 3. That paragraph speaks of two requirements, one, a split in the original party and two, a group comprising of one third of the legislators separating from the legislature party. By acceding to the two hat theory one of the limbs of paragraph 3 would be made redundant or otios. An interpretation of that nature has to be avoided to the extent possible. Such an interpretation is not warranted by the context. It is also not permissible to assume that the Parliament has used words that are redundant or meaningless. We, therefore, overrule the plea that a split in the original political party need not separately be established if a split in the legislature party is shown. 39.  On the side of the 37 M.L.As., the scope of judicial review being limited was repeatedly stressed to contend that the majority of the High Court had exceeded its jurisdiction. Dealing with the ambit of judicial review of an order of the Speaker under the Tenth Schedule, it was held in Kihoto Hollohan (supra): "In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion.39. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be. The words "proceedings in Parliament" or "proceedings in the legislature of a State" in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures. That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, ho immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule." After referring to the relevant aspects, it was held: "By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal." It was concluded: "In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity." The position was reiterated by the Constitution Bench in Raja Ram Pal Vs. The Hon'ble Speaker, Lok Sabha & Ors. [JT 2007 (2) SC 1]. We are of the view that contours of interference have been well drawn by Kihoto Hollohan (supra) and what is involved here is only its application. 40.  Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of paragraph 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf. He has entered no finding whether a split in the original political party was prima facie proved or not. This action of his, is apparently based on his understanding of the ratio of the decision in Ravi S. Naik's case (supra). He has misunderstood the ratio therein. Now that we have approved the reasoning and the approach in Jagjit Singh's case and the ratio therein is clear, it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with. We have, therefore, no hesitation in agreeing with the majority of the High Court in quashing the decisions of the Speaker. 41.  In view of our conclusions as above, nothing turns on the arguments urged on what were described as significant facts and on the alleged belatedness of the amendment to the Writ Petition. It is undisputable that in the order that was originally subjected to challenge in the Writ Petition, the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 M.L.As. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of the High Court in exercise of its power of judicial review. 42.  The question then is whether it was necessary for the majority of the Division Bench of the High Court to remand the proceeding to the Speaker or a decision could have been taken whether the 13 members stand disqualified or not and if they are found to be disqualified, the balance 24 of the 37 would also stand disqualified, since in that case, there will be no one third of the Legislature party forming a separate group as claimed by them. It is contended on behalf of the Bahujan Samaj Party that there is absolutely no material to show that there was any meeting of the party on 26.8.2003 as claimed by the 37 members and it has not been shown that there was any convention of the original political party or any decision taken therein to split the party or to leave the party by some of the members of that party. It is also pointed out that no agenda of the alleged meeting or minutes of the alleged meeting is produced. No other material is also produced. Even prior to 6.9.2003, when the claim of split before the Speaker was made and 26.8.2003, when the split is claimed to have occurred, the 24 members of the 37, had sat with the Bahujan Samaj Party in the Legislative Assembly and that itself would show that there had been no split on 27.8.2003 as now claimed. It is also pointed out that on 2.9.2003, the day of the convening of the Assembly, the 13 members of the B.S.P. who had met the Governor on 27.8.2003, had sat with members of the Samajwadi Party in the Assembly and an objection was raised to it. The Speaker got over the situation by saying that the only business on the agenda that day was obituary references and the question need not be raised that day. It is, therefore, contended that on the facts, it is crystal clear that the 13 members sought to be disqualified had defected and the defection is manifest by their meeting the Governor on 27.8.2003 requesting him to call upon the leader of the Samajwadi Party to form the Government. 43.  As against these submissions, it is contended that it was for the Speaker to take a decision in the first instance and this Court should not substitute its decision for that of the Speaker. It is submitted that the High Court was therefore justified in remitting the matter to the Speaker, in case this Court did not agree with the 37 MLAs that the decision of the Speaker did not call for interference. 44.  Normally, this Court might not proceed to take a decision for the first time when the authority concerned has not taken a decision in the eyes of law and this Court would normally remit the matter to the authority for taking a proper decision in accordance with law and the decision this Court itself takes on the relevant aspects. What is urged on behalf of the Bahujan Samaj Party is that these 37 MLAs except a few have all been made ministers and if they are guilty of defection with reference to the date of defection, they have been holding office without authority, in defiance of democratic principles and in such a situation, this Court must take a decision on the question of disqualification immediately. It is also submitted that the term of the Assembly is coming to an end and an expeditious decision by this Court is warranted for protection of the constitutional scheme and constitutional values. We find considerable force in this submission.
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