2006 (12) TMI 514 - SC - Indian Laws

Disqualification from being members of the Assembly - Challenge the legality of orders passed by the Speaker of Haryana Legislative Assembly ('the Assembly') - sole member constituting the legislature party of a political party - personal malafides - disqualification as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of India - deprive from right to vote - violation of principles of natural justice - HELD THAT - We are of the view that to determine whether an independent member has joined a political party the test is not whether he has fulfilled the formalities for joining a political party. The test is whether he has given up his independent character on which he was elected by the electorate. A mere expression of outside support would not lead to an implication of a member joining a political party. At the same time, non- fulfillment of formalities with a view to defeat the intent of paragraph 2(2) is also of no consequence. The question of fact that a member has given up his independent character and joined, for all intent and purposes, a political party though not formally so as to incur disqualification provided in paragraph 2(2) is to be determined on appreciation of the material on record. Applying this test here, it cannot be held that the Speaker committed any illegality in coming to the conclusion that the petitioners had joined the Indian National Congress. The conclusions reached by the Speaker cannot be held to be unreasonable, assuming that two views were possible. On the facts of the present case, the Speaker was justified in coming to the conclusion that there was no split in the original political party of the petitioner Jagjit Singh. Likewise, in Writ Petition 292/2004, the Speaker on consideration of relevant material placed before him came to the conclusion that there was no split as contemplated by paragraph 3 of the Tenth Schedule. The finding of the Speaker cannot be faulted. In fact, letter of the petitioner dated 17th June sent to the Speaker itself shows that what was claimed was that the Haryana unit of the Republican Party of India effected a split in the original party on 21st December, 2003. The finding that the claim of split was made as an afterthought to escape disqualification under paragraph 2(1)(a) of the Tenth Schedule cannot be held to be unreasonable or perverse. The Speaker was justified in coming to the conclusion that despite various opportunities, no valid proof or evidence was placed on record by the petitioner to show that indeed a split had taken place in the original political party, i.e., Republican Party of India on 21st December, 2003. It is a matter of great anguish that the mode of substituted service had to be resorted to, to serve elected members of a Legislative Assembly. The object of the Tenth Schedule is to discourage defection. Paragraph 3 intended to protect a larger group which, as a result of split in a political party which had set up the candidates, walks off from that party and does not treat it as defection for the purposes of paragraph 2 of the Tenth Schedule. The intention of the Parliament was to curb defection by a small number of members. That intention is clear from paragraph 3 which does not protect a single member legislature party. It may be noted that by Constitution (Ninty-first Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth Schedule. The Speaker has not filed any reply. It is true that the aforesaid averments have remained unrebutted. The contention is that adverse inference should be drawn against the Speaker and the impugned orders set aside on the ground of malafides of the Speaker. Ordinarily, the adverse inference can be drawn in respect of allegations not traversed, but there is no general rule that adverse inference must always be drawn, whatever the facts and circumstances may be. The facts and circumstances of the present case have already been noticed as to how the petitioners have been avoiding to appear before the Speaker; how the proceedings were being delayed and long adjournments sought on ground such as non-availability of senior advocates because of court vacations. In the light of these peculiar facts and circumstances, a telephone call like the one alleged can mean that further adjournment as sought for by the petitioners is possible if they do not vote in the Rajya Sabha election on 28th June, 2004. On facts, we are unable to draw adverse inference and accept the plea of malafides. Undoubtedly, in our constitutional scheme, the Speaker enjoys a pivotal position. The position of the Speaker is and has been held by people of outstanding ability and impartiality. Without meaning any disrespect for any particular Speaker in the country, but only going by some of events of the recent past, certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal. It has been urged that if not checked, it may ultimately affect the high office of the Speaker. Our attention has been drawn to the recommendations made by the National Commission to review the working of the Constitution recommending that the power to decide on the question as to disqualification on ground of defection should vest in the Election Commission instead of the Speaker of the House concerned. Whether to vest such power in the Speaker or Election Commission or any other institution is not for us to decide. It is only for the Parliament to decide. We have noted this aspect so that the Parliament, if deemed appropriate, may examine it, bestow its wise consideration to the aforesaid views expressed also having regard to the experience of last number of years and thereafter take such recourse as it may deem necessary under the circumstances. As a result of the aforesaid discussions, we find no merit in the writ petitions. Writ Petition are, accordingly, dismissed.

Summary

Issues Involved:
1. Legality of orders passed by the Speaker of Haryana Legislative Assembly disqualifying petitioners from being members of the Assembly.
2. Violation of principles of natural justice.
3. Malafides of the Speaker.
4. Interpretation of Paragraph 3 of the Tenth Schedule concerning split in political parties.
5. Applicability of Paragraph 3 to single-member legislature parties.
6. Sufficiency of time granted to petitioners to respond to disqualification proceedings.

Detailed Analysis:

Issue 1: Legality of Orders Passed by the Speaker
The petitions challenge the legality of the Speaker's orders disqualifying the petitioners from the Haryana Legislative Assembly under the Tenth Schedule of the Constitution of India. The orders were passed on June 25, 2004, just before the Rajya Sabha elections on June 28, 2004. The Speaker's decision was based on allegations that the petitioners had joined the Indian National Congress (INC), thereby incurring disqualification.

Issue 2: Violation of Principles of Natural Justice
The petitioners argued that the Speaker's orders violated the principles of natural justice as they were made in haste to deprive them of their right to vote in the Rajya Sabha elections. They contended that they were not given a fair opportunity to present their case, cross-examine witnesses, or lead evidence. The court held that the principles of natural justice are flexible and depend on the facts of each case. The Speaker had given the petitioners an opportunity to watch the video recordings and point out any discrepancies, which they failed to do. Therefore, the court concluded that the petitioners were given a reasonable opportunity to present their case.

Issue 3: Malafides of the Speaker
The petitioners alleged that the Speaker acted with malafides, influenced by the Chief Minister whose son was a candidate in the Rajya Sabha elections. They claimed that the Speaker called them on June 24, 2004, asking them to abstain from voting to avoid disqualification. The court found no substantive evidence to support the allegations of malafides and held that the Speaker's actions were not influenced by any external factors.

Issue 4: Interpretation of Paragraph 3 of the Tenth Schedule
The petitioners belonging to political parties argued that they were entitled to protection under Paragraph 3 of the Tenth Schedule, which provides immunity from disqualification in case of a split in the original political party. The court held that mere claim of a split is not sufficient; there must be prima facie proof of such a split. The court found that the petitioners failed to provide valid proof of a split in their original political parties.

Issue 5: Applicability of Paragraph 3 to Single-Member Legislature Parties
The petitioners, who were lone members representing their parties, argued that they should be protected under Paragraph 3 as their group constituted 100% of the legislature party. The court held that Paragraph 3 does not apply to single-member legislature parties as it explicitly requires a group representing a faction. The court emphasized that the intention of the Tenth Schedule is to curb defection and protect larger groups, not individual members.

Issue 6: Sufficiency of Time Granted to Petitioners
The petitioners contended that they were not given sufficient time to respond to the disqualification proceedings. The court examined the timeline of the proceedings and found that the petitioners were given multiple opportunities to file their replies and present their case. The court concluded that the time granted was sufficient and the petitioners' failure to utilize the opportunities provided did not constitute a violation of natural justice.

Conclusion:
The court dismissed the writ petitions, upholding the Speaker's orders of disqualification. The court found no violation of principles of natural justice, no malafides on the part of the Speaker, and held that Paragraph 3 of the Tenth Schedule does not apply to single-member legislature parties. The court also emphasized the need for Parliament to consider whether the power to decide disqualification on grounds of defection should remain with the Speaker or be vested in another institution like the Election Commission.