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TMI Blog2006 (12) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner Jagjit Singh (W.P.No.287 of 2004) belonged to a political party named 'Democratic Dal of Haryana'. He was a lone member representing his party in the Assembly. Petitioner- Karan Singh Dalal (W.P.No.292 of 2004) was a lone member of a political party named 'Republican Party of India' in the Assembly. 2. The petitioners were elected to the Assembly in election held in February, 2000. All impugned orders disqualifying the petitioners were passed on 25th June, 2004. The voting for election to Rajya Sabha took place on 28th June, 2004. The petitioners, however, could not vote in the said election, having ceased to be the members of the Assembly with immediate effect. 3. The challenge to the orders of disqualification is made on various grounds. The ground common to all the petitions is the violation of principles of natural justice. It has been contended on behalf of all the petitioners that the orders of disqualification were made in utter haste with a view to deprive them of their right to vote on 28th June, 2004 with a view to help the Chief Minister whose son was a candidate in elections to Rajya Sabha. It is contended that the Speaker had no basis for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 23rd April, 2004 was also issued to the petitioner. A fresh notice dated 18th May, 2004 was issued calling upon the petitioner to file reply on or before 4th June, 2004 that was served on the staff of the petitioner on 31st May, 2004. The petitioner on 4th June, 2004 filed an application before respondent no.2 Speaker placing on record certain facts and praying for extension of time by four weeks to file reply. On 23rd June, 2004, request of the petitioner for adjournment of proceedings beyond 28th June, 2004 was rejected by the Speaker who heard the arguments and listed the matter for further proceedings for 24th June, 2004. On 24th June, 2004, proceedings were adjourned to 25th June, 2004 for orders. Further case of the petitioner is that the Speaker on 24th June, 2004, called him on his mobile phone and stated that if petitioner decides to abstain from voting in election of Rajya Sabha on 28th June, 2004, his disqualification can be avoided. The impugned order was passed on 25th June, 2004. 5. One of the contentions urged is that the Speaker, respondent No.2, has not filed any reply and, therefore, the averment made that he called the petitioner on 24th June, 2004 aski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reply to the main petition alleging malafides against the Speaker and the Chief Minister and denying that he joined Indian National Congress. A reply was also filed on that date to the application stating that fair opportunity to contest the proceedings had not been granted and the evidence is concocted and manipulated. An opportunity was sought to cross-examine Ashwani Kumar and also to lead evidence. On the same date at 1.00 p.m. the impugned order was passed. The facts in the other three cases are almost identical. According to the petitioners, there is no material for coming to the conclusion that they joined Indian National Congress. They attribute malafides to respondent Nos.2 and 5. According to them, the sole purpose of respondent No.2 was to deprive them of their right to exercise their franchise in the Rajya Sabha elections to help the son of the Chief Minister. They also dispute the correctness of the T.V. and newspaper reports to the effect that they have all joined Indian National Congress. The contention is that joining a political party is different from extending outside support to it. They contend that in a similar manner the petitioners without joining the party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderations. The order would be a nullity if rules of natural justice are violated. 11. The requirement to comply with the principles of natural justice is also recognized in rules made by the Speaker in exercise of powers conferred by paragraph 8 of the Tenth Schedule. The Speaker, Haryana Legislative Assembly, made the Haryana Legislative Assembly (Disqualification of Members on ground of Defection) Rules, 1986 in exercise of power conferred by paragraph 8 of the Tenth Schedule. Rule 7(7), inter alia, provides that neither the Speaker nor the Committee shall come to any finding that a Member has become subject to disqualification under the Tenth Schedule without affording a reasonable opportunity to such member to represent his case and to be heard in person. The question whether reasonable opportunity has been provided or not cannot be put in a strait-jacket and would depend on the fact situation of each case. 12. At the outset, we may mention that while considering the plea of violation of principles of natural justice, it is necessary to bear in mind that the proceedings, under the Tenth Schedule, are not comparable to either a trial in a court of law or departmental proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Company to take over the Company. While considering the question of right of hearing claimed by the workers and the question whether the Companies Act contemplates any hearing to be given to the workers or it is to be given only to the contributories and creditors, Justice Reddy observed that : And, what do the workers want? They want to be heard lest their situation be altered unheard. They invoke natural justice, so to claim justice. They invoke the same rule which the courts compel administrative tribunals to observe. Can courts say natural justice need not be observed by them as they know how to render justice without observing natural justice? It will surely be a travesty of justice to deny natural justice on the ground that courts know better. There is a peculiar and surprising misconception of natural justice, in some quarters, that it is, exclusively, a principle of administrative law. It is not. It is first a universal principle and, therefore, a rule of administrative law. It is that part of the judicial procedure which is imported into the administrative process because of its universality. It is of the essence of most systems of justice-certainly of the Anglo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed to be heard, If every holder of a single share out of thousands may be heard, if every petty creditor may be heard, why can't the workers be heard? It is said that once the workers are allowed to enter the Company Court, the flood gates will be opened, all and sundry will join in the fray and utter confusion will prevail. These are dark forebodings for which there is no possible justification. The interest of the workers is limited. It is the interest of the others, those that battle for control and for power that may create chaos and confusion. It must not be forgotten that the court is the master of the proceedings and the ultimate control is with the court. Parties may not be impleaded for the mere asking or heard for the mere seeking. The court may well ask the reason why, if someone seeks to be heard. Workers will not crowd the Company Court and the Court will not be helpless to keep out those whom it is not necessary to hear. It is said that workers will not be allowed to intervene in a partition or a partnership action to oppose partition or dissolution of partnership and so why should they be allowed to intervene in a winding-up petition. That is begging the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the reason why in spite of finality under paragraph 6 (1) of the Tenth Schedule, such a decision is subject to judicial review on the ground of non- compliance with the rules of natural justice, it was said that But while applying the principles of natural justice, it must be borne in mind that they are not immutable but flexible and they are not cast in a rigid mould and cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. 22. Dealing with the argument that reference has been made to newspapers and opportunity to adduce evidence was denied, it was held that the Speaker was drawing an inference about the fact which had not been denied by the appellants themselves viz. that they had met the Governor along with two other persons in the company of Congress (I) MLAs. The talk between the Speaker and the Governor also referred to the same fact. It was noted that the controversy was confined to the question whether from the said conduct an inference could be drawn that they had voluntarily given up membership. Rejecting the grieva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity or not? Could a reasonable person, under the circumstances in which Tribunal was placed, pass such an order? Answer to these questions would determine the fate of the case. 26. We have no difficulty in accepting the contention that there is a fundamental difference between an independent elected member and the one who contests and wins on ticket given by a political party. This difference is recognized by various provisions of the Tenth Schedule. An independent elected member of a House incurs disqualification when he joins any political party after election as provided in paragraph 2(2) of the Tenth Schedule. There is also no difficulty in accepting the proposition that giving of outside support by an independent elected member is not the same thing as joining any political party after election. To find out whether an independent member has extended only outside support or, in fact, has joined a political party, materials available and also the conduct of the member is to be examined by the Speaker. It may be possible in a given situation for a Speaker to draw an inference that an independent member of the Assembly has joined a political party. No hard and fast rule can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uding Zee News television channel, Aaj Tak television channel and Haryana News of Punjab Today television channel. 28. Along with the application dated 23rd June, 2004, affidavit of one Ashwani Kumar was filed before the Speaker stating that he had seen these independent members admitting and acknowledging in an interview to Zee News television channel and Haryana News (Punjab Today Television Channel) that they had joined the Indian National Congress. The original C.Ds received from Zee Telefilms, true translation into English of the transcript of the interview conducted by the said channel and the original letter issued by Zee Telefilms and handed over to Ashwani Kumar on his request were filed on 23rd June, 2004. The original C.Ds received from Haryana News channel along with English translation as above and the original proceedings of the Congress legislative party in respect of proceedings dated 16th June, 2004 at 11.30 a.m. in the Committee room of Haryana Vidhan Sabha containing the signatures of three out of four independent members were also filed. It was stated that despite best efforts, the complainant could not produce these documents on 15th June, 2004 and was, thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and sought permission to cross-examine Ashwani Kumar and opportunity to lead evidence. 31. The Speaker considered the request of the petitioners for grant of three weeks' time in this factual backdrop and disallowed it and this is the basis of the contention that the petitioners have been denied a reasonable opportunity to lead evidences and, therefore, rules of natural justice have been violated and, thus, the impugned orders of their disqualification are nullities. 32. The sufficiency of the time granted depends upon the facts and circumstances of each case. Having regard to the facts as noticed hereinbefore, we are unable to accept the contention that in the present case, the petitioners were not granted sufficient time to meet the case against them. It has to be remembered that the specific averment in respect of materials filed had already been made in the complaint dated 15th June, 2004. The material filed on 23rd June, 2004 was supplementary to further support the allegations in the complaint dated 15th June, 2004. The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to resolve the matter, the evidence produced and placed on the record by the petitioner has to be considered. The petitioner has placed on record firstly the news items appearing on 15.6.2004 in the various leading newspapers (popularly labeled as the Print Media ) as Annexures P-1 to P-7. A perusal of the same reveals the reporting that six independent Members of the Haryana Vidhan Sabha were taken to Ms. Sonia Gandhi, the Congress President on 14.6.2004 by Mr. Ahmed Patel and Mr. Bhupinder Singh Hooda, Congress M.P. and thereafter, it was reported that on 14.6.2004, all the six Members of the Haryana Vidhan Sabha mentioned therein, (including the respondent) had joined the Congress Party. This documentary evidence is corroborated by the electronic evidence placed on the record by the petitioner in the form of the original Compact Disks (CDs) containing the interviews conducted by Zee News and Haryana News (Punjab Today Television Channel) of the six independent Members of the Haryana Vidhan Sabha including the respondent which show that on 14.6.2004 at 23, Mother Teresa Crescent Road, New Delhi the six independent Members of Haryana Vidhan Sabha (including the respondent) joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed electronic evidence, he was fortified by the fact that being the Speaker of the Haryana Vidhan Sabha, on many occasions as well as during the Sessions of the House, he has seen and heard these members. He found that these members as seen and heard in the electronic evidence are genuinely identified as also their voices which are easily and clearly identified. The Speaker, thus, held that in view of the irrefutable and overwhelming documentary and electronic evidence, no other conclusion was possible than that on 14th June, 2004 these independent members of Haryana Vidhan Sabha joined the Congress Party. He has also referred to the documentary evidence regarding CLP meeting held on 16th June, 2004 in the form of original sheet of proceedings register of CLP containing the signatures of the petitioners. In respect of the signatures also, the Speaker has noted that the signatures of the petitioners on the original sheet of the CLP proceedings are the same as their signatures on the Vakalatnama filed by their counsel as is clear after comparison. 35. It was strenuously contended by learned counsel for the petitioners that the Speaker while passing the impugned orders has relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and heard these MLAs. It is not a case where the Speaker could transfer the case to some other tribunal. The doctrine of necessity under these circumstances would also be applicable. No illegality can be inferred merely on the Speaker relying upon his personal knowledge of having seen and heard the petitioners for coming to the conclusion that persons in the electronic evidence are the same as he has seen and so also their voices. Thus, even if the affidavit of Ashwani Kumar is ignored in substance it would have no effect on the questions involved. Now, we may also note as to what is stated in the interviews on the News Channel. PETITIONER- DEV RAJ DIWAN: ZEE NEWS CORRESPONDENT Why have you decided to join Congress Party? SHRI DEV RAJ DIWAN: I was basically Congressman. I have been in Congress, I have struggled for the sake of Congress and worked for the Congress. Moreover, my family has given blood for the Congress. Secondly, due to some reasons, I was not given Congress party ticket in 1996 and I contested election as an independent candidate. Thereafter, in 1997, I joined Congress Party. Again, I was not given Congress Party ticket and in 2000. I agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dedicated and right forces can fight against the communal forces only under the leadership of Smt. Sonia Gandhi. Today, after meeting Smt. Sonia Gandhi, we have joined Congress Party under the leadership of Shri Bhupinder Singh Hooda. Now, we will serve and strengthen the Congress Party physically, mentally and financially. SHRI RAJINDER SINGH BISLA: Rajinder Singh Bisla, MLA, Ballabhgarh. HARYANA NEWS CORRESPONDENT On which conditions, you have joined the Congress Party? SHRI RAJINDER SINGH BISLA: We have not imposed any condition to join the Congress Party. During my longest political life, I was elected as an independent MLA in 1977. In 1991, I was given Congress Party ticket by Shri Rajiv Gandhi. I had been President of District Congress Committee, Faridabad. I had been on some important posts of the organization. This time, I was not given Congress Party ticket from Ballabhgarh. The people gathered in huge number (in the shape of big Panchayat) and they elected me as an independent MLA with maximum votes. The people of my Constituency who elected me, keeping in view the conditions of Haryana State as well as conditions of our country, reposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od name please? SHRI BHIM SAIN MEHTA: I, Bhim Sain Mehta, MLA from Indri, District Kaul. I was elected as an independent MLA for last two consecutive terms. It is a matter of great happiness that we have joined our original home because my initial entry into politics has been in Congress Party. In 1979, I had been President of Congress Party. Thereafter, I had been in Congress. Today, I am happy to see that we have joined Congress Party under the leadership of Smt. Sonia Gandhi who is idol of sacrifice. By reposing faith in her leadership, we all have joined Congress Party, today selflessly and we don't have any expectations. We will abide by the dictates of Smt. Sonia Gandhi Ji. 38. In view of the aforesaid statements and absence of any explanation, let alone reasonable explanation, except only vague and general pleas and denials by the petitioners in their stand before the Speaker, they cannot be heard to say that they have been deprived of reasonable opportunity or there is violation of rules of natural justice. 39. From the facts and circumstances of the case and the conduct of the petitioners, it can be reasonably inferred that they were only interested i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disqualified for being a member of the House if he joins any political party after such election. 42. As noted earlier, the object of the defection law has to be borne in mind. The question to be considered is whether a member formally joining a political party is the requirement so as to earn disqualification or the factum of joining can be inferred from facts and conduct of a member, without a member formally joining a political party inasmuch as not filling form required to be filled by a member of the political party under the rules and regulations of that party or payment of any prescribed fee. The respondents pleaded for a liberal construction and submitted that inference from conduct was sufficient to establish that an independent member has joined a political party. These are two extreme views on the issue. 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 mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. 3. Disqualification on ground of defection not to apply in a 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 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 (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorized by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such vot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition has to be adopted suitably so as not to deny the benefit of paragraph 3 to a sole member constituting the legislature party of a political party. 51. The question, however, is not only of the definition of the expression 'legislature party' or of the words 'unless the context otherwise requires' in paragraph 1 of the Tenth Schedule, but is also of the interpretation of paragraph 3 under which protection is sought by the petitioners. 52. The words in paragraph 3 are 'he and any other members of his legislature party'. The further requirement is of such members constituting 'the group' representing a faction. It is the group which has to represent a faction which has arisen as a result of split in the original political party. It is such 'group' which is to consist of not less than one third of the members of such legislature party. The question also is as to the interpretation of the expression 'original political party' mentioned in paragraph 3. Further, the contention is that for the applicability of paragraph 3, mere making of a claim about the split is sufficient and nothing more is required to be shown in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion for determination is about the applicability of paragraph 3 of Tenth Schedule to the petitioner on the facts abovenoticed, namely, applicability of protection of paragraph 3 to a single member party in a legislatiure. 56. Paragraph 3 requires the following conditions to be complied with : (a) a split in the original political party giving rise to a faction; and (b) faction is represented by group of MLAs in the House which consists of not less than one-third of the members of such legislature party. 57. Re. (a) The submission urged on behalf of the petitioners is that only requirement of this paragraph is that a claim of split is made by the member of the House and it is not the requirement to even prima facie show that such claim is correct or not. The disqualification under paragraph 2(1)(a) is incurred when a member of the House voluntarily gives up membership of his original political party. Paragraph 2 is, however, subject to paragraph 3 of the Tenth Schedule. If conditions of paragraph 3 are satisfied, despite giving up membership voluntarily, a member would not incur disqualification under paragraph 2. Paragraph 3 proceeds on the assumption that but for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, 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. 61. In the present case, the Speaker has held that the petitioner has failed to satisfy that split in the original party, namely, NCP had taken place. According to the petitioner, he had formed/joined a new political party on 20th December, 2003 having been elected on the ticket of NCP in February 2000. On 20th December, 2003, a new political party by the name of Democratic Congress Party of Haryana was formed. The petitioner voluntarily gave up membership of NCP on 20th December, 2003 and joined this newly formed party. On these facts, the disqualification of voluntarily giving up membership of NCP stands attracted subject to the claim of the petitioner under paragraph 3. The petitioner had to prove that the stipulations of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A reading of these provisions clearly indicate that importance was given to the House of the Legislative Assembly of the State. The original political party in relation to a member of the House is the political party to which he belongs. Thus, it is clear that the Parliament intended to treat the State unit of a political party as a separate entity for the purpose of determining whether there is any disqualification of a member of the House of that State Legislature. It is further made clear that in the case of split one- third members of the State Legislature belonging to that political party must form a group to make the split effective within the State Legislature. Likewise for the purpose of (sic) merger within the meaning of paragraph 4, two-thirds of the members of the State Legislature party must have agreed to such merger. Thus, while deciding the disqualification of the member of the State Legislature the events that have taken place at the national level have no concern to decide whether there is a split or (sic) merger. To elucidate this point one may take the case of split of a national political party at the national level but in a particular State the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party in relation to a member of the House is a political party to which he belongs' erroneously held that 'the Parliament intended to treat the State unit of a political party as a separate entity for the purpose of determining whether there is any disqualification of a member of the House of that State Legislature'. In the case of split, one-third members of State Legislature belonging to that political party must form a group to make the split effective within the State Legislature but it does not lead to the conclusion that the Parliament intended to treat State Unit of a political party as a separate entity for the purposes of the benefit of paragraph 3. 64. Paragraph 1(c) defining original political party and explanation as given in paragraph 2(1) have already been noticed hereinbefore. It is clear from a bare reading thereof that the elected member belongs to the political party by which he is set up as a candidate for election as such member. From the plain language of these provisions, it cannot be held that for the purposes of the split, it is the State Legislature party in which split is to be seen. If a member is set up by a National Party, it would be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Tenth Schedule. We reject the plea solely based on Clause 1(b) of the Tenth Schedule. 66. The Punjab case is not correctly decided. 67. 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 (Writ Petition 287/2004). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .5.2004 through registered post, along with the copy of the petition and its annexures was again sent to the respondent asking him to furnish his reply by 4.6.2004. In the mean time, the respondent through a letter received on 21.5.2004, made a prayer for giving him six weeks time to file the reply as he had only received the notice on 12.5.2004 whereas reply had to be given by 11.5.2004. Since a notice dated 18.5.2004 had already been sent to the respondent asking him to submit his reply by 4.6.2004, the request of the respondent for giving him six weeks time could not be granted and he was duly informed on 28.5.2004 through telegram to submit his reply by 4.6.2004. When the case was taken up on 4.6.2004, an application dated 4.6.2004 was submitted by the respondent seeking permission to file a detailed reply to the petition and four weeks more time was prayed for this purpose as well as the opportunity of being assisted by an advocate was asked for. Although more than sufficient time had been granted to the respondent to furnish his comments/reply by this Authority and in view of the fact that by letter dated 18.5.2004 he had already been asked to submit his reply by 4.6.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledged by the respondent on his above stated letter dated 14.6.2004. After completion of the inspection, on 14.6.2004 again another application was made by the respondent that certified copies of more documents was required by him for filing his comments/reply to the petition. 70. The position is almost same in both cases. 71. Re : (b) The words 'he and any other person' and the words 'the group' in paragraph 3 on the plain reading shows that the benefit of paragraph 3 is not available to a single member legislature party. It was, however, contended that the words 'he and any other person', in the context of a recognized single member legislature party should be read and understood as 'he or he and any other members of his legislature party constitute the group'. We cannot read words in the Constitution which do not exist. The contention is that once a single member legislature party is recognized by the Speaker, the benefit of paragraph 3 has to be given to the sole member representing that party as it would be a case of 100% representing break away group. Undoubtedly, paragraph 2(1)(a) is subject to the provisions of paragraphs 3, 4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 73. Lastly, we will consider the ground of personal malafides. It is alleged that a telephone call was made by the Speaker to the petitioners asking them not to vote in the Rajya Sabha election. The averments made in Writ Petition 287 of 2004 are: That with a sense of utmost responsibility, the Petitioner states that the Respondent No.2 had called up the Petitioner on his mobile phone on 24.6.2004 asking the Petitioner that if he decides to abstain from voting, then disqualification can be avoided. 74. 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. 75. The question of drawing adverse inference in view of Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendations 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. Our attention has also been drawn to the views of number of other experts, committees/commissioner to the effect that the power of disqualification as a result of defection need to be exercised in accordance with the opinion of the Election Commission as in the case of decision on question as to disqualification of members provided for in Article 103 and 194(2) of the Constitution (See Anti-Defection Law and Parliamentary Privileges by Dr. Subhash C. Kashyap, M.P. Jain's Indian Constitutional Law, 5th Edn., Constitutional Law of India, 2nd Edn. by T.K. Tope, Reviewing the Constitution edited by Dr. Subhash C. Kashyap Ors., First V.M. Tarkunde Memorial Lecture on Indian Democracy Reality or Myth? delivered by Shri Soli J. Sorabjee). 78. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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