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CWP No.2900 of 2013
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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.2900 of 2013
Date of Decision.09.10.2014
Kuldeep Bishnoi s/o Late Ch. Bhajan Lal
......Petitioner
Versus
Speaker, Haryana Vidhan Sabha, Chandigarh and others
......Respondents
Present:
Mr. S.P. Jain, Senior Advocate with
Mr. Dheeraj Jain, Advocate
for the petitioner.
Mr. Sanjeev Sharma, Senior Advocate with
Mr. Shekhar Verma, Advocate and
Ms. Bhavna Joshi, Advocate
for respondent Nos.1 and 8.
Mr. M.L. Sarin, Senior Advocate with
Ms. Ankita Sambyal, Advocate and
Mr. Nitin Sarin, Advocate
for respondent No.4.
Mr. R.S. Cheema, Senior Advocate with
Mr. Pawan Girdhar, Advocate
for respondent No.2.
Mr. Rajiv Atma Ram, Senior Advocate with
Mr. Abhishek Arora, Advocate
for respondent No.3.
Mr. Harbhagwan Singh, Senior Advocate and
Mr. Arun Walia, Senior Advocate with
Mr. Dinesh Sharma, Advocate
for respondent Nos.5 and 7.
Mr. Tarun Veer Vashist, Advocate
for respondent No.6.
Mr. Namit Kumar, Advocate
for respondent No.9.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1.
2.
Whether Reporters of local papers may be allowed to see the
judgment ? Yes
To be referred to the Reporters or not ? Yes
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3.
Whether the judgment should be reported in the Digest? Yes
-.K. KANNAN J.
I.
The subject of challenge
1.
The writ petition calls to question the correctness of the
decision of the Speaker of the Haryana Vidhan Sabha rendered on
13.01.2013 rejecting an application moved by the petitioner Kuldeep
Bishnoi under Paragraph 6 of Tenth Schedule to the Constitution on the
issue of disqualification of 5 of the members of the Haryana Janhit
Congress (BL) (for brief “HJC (BL)). This came on a petition filed by the
petitioner following an order issued by the Speaker on 09.11.2009 signed
by 4 MLAs of HJC (BL) namely Satpal Sangwan, Vinod Bhayana, Narendra
Singh and Zile Ram Chochra respectively respondent Nos.3 to 6. The
communication signed by them was to the effect that a decision had
been taken to merge the HJC (BL) with Indian National Congress (for
brief “INC”) party in terms of the provisions of Paragraph 4 of the Tenth
Schedule of the Constitution. The letter requested the acceptance of
the merger of HJC (BL) with INC and to recognize the applicantlegislators as members of the INC in the Haryana Vidhan Sabha. The
minutes of the meeting of the HJC (BL) on 09.11.2009 accompanying the
letter was to the effect that at a meeting of the Legislators of the HJC
(BL) elected to the 12th Haryana Legislative Assembly held on
09.11.2009 to consider and decide to merge the original HJC (BL) with
the INC, the requisite legislature party members have agreed to merge
HJC (BL) with INC. The Speaker in his order dated 09.11.2009 stated
cryptically that he had perused the relevant provisions of Constitution of
India and he was of the considered opinion that the application deserved
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acceptance in terms of the provisions of the Constitution. He also
recorded the identity of the applicants as well as decision as being
borne out of ‘their free will’. Leader of the Congress Legislature Party
Sh. Bhupinder Singh Hooda and President, HPCC, Sh. Phool Chand
Mullana were reported to have communicated to him in writing
accepting the merger. Alongside the order passed by the Speaker was
also a letter of communication by the 7th respondent informing the
Speaker that he was unavailable at Chandigarh and therefore, he moved
a separate application informing that he had also accorded with the
decision of the merger.
2.
Five separate petitions were filed under Section 191 read
with Tenth Schedule of the Constitution and the rules framed against
respondent Nos.3 to 7 praying for the disqualification of abovesaid
respondents as members of Haryana Legislative Assembly. Nine other
petitions were also filed by non-Congress members seeking for similar
disqualification against respondent Nos.3 to 7. The petitions which had
been numbered as petitions No.1 to 14 were clubbed together and the
impugned order was passed on 13.01.2013.
II.
A quick run-up to circumstances leading to the impugned
order
3.
The petitioner's applications before the Speaker under
Paragraph 6 had been filed on 09.12.2009 and it would be worthwhile to
recapitulate the facts in brief that led up to the passing of the impugned
order. The impugned order itself came through a judicial intervention
from the Supreme Court after going through the initial judicial process
through directions of a Single Bench as modified by the Division Bench of
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this court. The Supreme Court set a definite date for disposal that would
explain the previous litigative journey for this case.
4.
In the first round of litigation, which the petitioner had
initiated by filing CWP No.14194 of 2010, the petitioner made out a case
that the Speaker was not likely to take any decision and the Speaker
who had been described by name and impleaded as 2nd respondent had
literally decided the whole issue finally ex parte without hearing the
petitioner. Since he had already expressed the mind, the petitioner
would contend that he would expect no justice from the Speaker and
the subsequent conduct of the Speaker in dealing with disqualification
petitions without any sense of urgency left no room to wait for any fair
decision by the Speaker. A learned Single Bench of this Court passed the
judgment holding that an order passed under Paragraph 4 could
necessarily be subject to an adjudication under Paragraph 6 when an
application had been filed and the challenge brought for the initial order
passed on 09.11.2009 ought to await the decision on the application
filed under Paragraph 6 of the Tenth Schedule of the Constitution. The
Court also held that there was no absolute immunity given to the
Speaker in the manner of how he would deal with the case particularly
with reference to an act of indecision by the Speaker within a
reasonable time. The Court issued directions for disposal of the
disqualification petition within a period of 4 months from the date of
receipt of copy of the order. In the appeals filed against the order in
LPA No.366 of 2011, the Division Bench modified the directions and
passed a judgment on 20.12.2011 holding that the respondents would
not be deemed to be members of the INC party nor that of HJC (BL) till
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a final adjudication on the disqualification petitions. The Division Bench
directed that they would remain as unattached members of the
assembly for the purpose of attending the sessions and for no other
purpose. It also observed that they shall not hold any office till the
decision of the disqualification petitions and that the Speaker shall allot
them separate seats in the house. The Speaker had appeared in Court
and had given an undertaking that he will decide the case before
30.04.2012 and the Court recorded the undertaking. This decision
rendered on 20.12.2011 was again the subject of special leave petition
before the Supreme Court. The special leave petition had been at the
instance of the Speaker and the respondents, who had been treated as
unattached members. The decision of the Supreme Court that is
reported under the caption Speaker, Haryana Vidhan Sabha Vs.
Kuldeep Bishnoi and others AIR 2013 SC 120 set aside the directions of
the Division Bench as regards the direction that respondents No.3 to 7
shall be treated as unattached members. The Supreme Court observed
that the High Court could not have assumed jurisdiction under its powers
of review before a decision was taken by the Speaker under Paragraph 6
of the Tenth Schedule of the Constitution. The Supreme Court observed
that its order amounted to a restraint against the Speaker from taking a
decision under Paragraph 6 of the Tenth Schedule and hence was beyond
the jurisdiction of the High Court. It held that it was only after the
Speaker took his decision, the High Court would assume jurisdiction and
the order disqualifying the MLAs which was in the domain of the Speaker
was not legally tenable. The 5 MLAs stood, therefore, restored to their
full functions as members of the Haryana Vidhan Sabha without any
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restrictions. While allowing the appeal, the Supreme Court, however
directed the Speaker to dispose of the pending applications for
disqualification within a period of three months from the communication
of the order. The order has come to be passed under such
circumstances.
III.
Effect of non-recognition of merger by Chief Election
Commissioner
5.
Even at the outset, I may point out that the Chief Election
Commissioner, the 9th respondent, has itself not recognized the merger
of the HJC (BL) with INC. It is brought out in their reply that HJC (BL)
continues to be a recognized State Party in Haryana.
Commission's records, there has been no merger.
As per the
The Commission's
notification dated 18.01.2013 still retains HJC (BL) as among the list of
political parties and election symbols.
The 9th respondent has also
brought to fact that one Sh. Nishant Ahlawat had given a letter on
25.02.2013 seeking for de-recognition of HJC (BL) but the request was
rejected.
The Commission has explained that registration and
recognition of political parties are done under Section 29A of the
Representation of People Act, 1951 and under the Election Symbols
(Reservation and Allotment) Order, 1968, while the decision of the
Speaker is under Sch X of the Constitution. I notice that their respective
functions are mutually exclusive and decision of one need not influence
the decision of another.
I wholly accept the argument of Sh. Sanjeev
Sharma, the counsel for the 1st respondent in this regard. The exercise
that I have undertaken now is wholly independent of and without
reference to the CEC's decision.
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IV.
The points formulated for consideration by the High Court
6.
There have been elaborate arguments made by counsel
appearing on behalf of each of the parties. The Speaker, who passed the
order, has also been described by name and arrayed as 2nd respondent
apart from being sued in the official capacity and arrayed as 1st
respondent as such Speaker. The Speaker has literally joined the fray
and had also been represented through counsel to defend his own order
particularly in view of the fact that mala fides had been attributed
against him. The different arguments represented through different
counsel were on issues of (i) the extent of judicial review that is
permissible for the decision rendered by the Speaker and the limit of
immunity to Speaker’s decision; (ii) the facts at issue namely of whether
HJC (BL) had merged with INC and the effect of the deeming provisions
in para 4(2) of the Tenth Schedule that made an inference possible when
members of house of not less than 2/3rd of the legislative party had
agreed to such merger, viz., that merger of the original political party
had taken place, (iii) the burden of proof that how the merger of the
original political party was to be established and (iv) the existence or
otherwise of the mala fides of the Speaker. These entire propositions
stem from judicial precedents already available on the subject and
discourses undertaken in this case chart no new path but attempt only
to fit the case into the law already laid down.
(i)
7.
The extent of judicial review and the limit of
immunity to Speaker’s decision
The extent of judicial review literally sets down the
boundaries within which this decision could traverse. In Jagjit Singh Vs.
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State of Haryana and others (2006) 11 SCC 1, the Supreme Court was
examining the decision of Speaker to disqualify a member for defection
and the requirement of compliance of principles of natural justice in
such case. The Supreme Court held in the decision that proceedings
before the Speaker, which is also a Tribunal albeit of a different nature,
ought to conduct them in a fair manner and by complying with the
principles of natural justice. Sh. M.L. Sarin, Senior Advocate read out
and I reproduce the Speaker's pre-eminent position as outlined in the
following words:“Before parting, another aspect urged before us deserves to
be considered. However, at the outset, we do wish to state
that the Speaker enjoys a very high status and position of
great respect and esteem in the Parliamentary Traditions.
He, being the very embodiment of propriety and
impartiality, has been assigned the function to decide
whether a member has incurred disqualification or not. In
Kihoto Hollohan's judgment various great Parliamentarians
have been noticed pointing out the confidence in the
impartiality of the Speaker and he being above all parties or
political considerations. The High office of the Speaker has
been considered as one of the grounds for upholding the
constitutional validity of the Tenth Schedule in Kihoto
Hollohan's case. ”
8.
In Kihoto Hollohan Vs. Zachillhu 1992 Supp (2) SCC 651,
the majority view was that even a finality clause provided under Tenth
Schedule of the Constitution to the decision of the Speaker did not
exclude judicial review but it shall be limited to question of
jurisdictional errors based on unconstitutionality, mala fides, ultra vires,
violation of principles of natural justice and perversity. The Supreme
Court ruled, per majority:-
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“In spite of finality clause, it is open to the Court to
examine whether the action of the authority under
challenge is ultra vires the powers conferred on the said
party. Such an action can be ultra vires for the reason that
it is in contravention of a mandatory provision of the law
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conferring on the authority the power to take such an
action. It would also be ultra vires the powers conferred on
the authority if it is vitiated by mala fides or is colourable
exercise of power based on extraneous and irrelevant
consideration.”
While exercising the certiorari jurisdiction, the Supreme Court further
observed that,
“Courts have applied the test of whether the impugned
action falls within the jurisdiction of the authority taking
the action or it falls outside such jurisdiction. An ouster
clause confines judicial review in respect of actions falling
outside the jurisdiction of the authority taking such action
but precludes challenge to such action on the ground of an
error committed in the exercise of jurisdiction vested in the
authority because such an action cannot be said to be an
action without jurisdiction. An ouster clause attaches
finality to determination, therefore, does oust the
certiorari to some extent and it will be effective in ousting
the powers of the Court to review the decision of an
inferior Tribunal by certiorari if the inferior Tribunal has
not acted without jurisdiction and has merely made error of
law which does not affect its jurisdiction and if this decision
is not a nullity for some reason such as breach of rule of
natural justice.”
This judgment is also home to a proposition that likens office of Speaker
that adjudicates under Paragraph 6 to a Tribunal. The Supreme Court
ruled by a majority:“All tribunals are not courts, though all Courts are
Tribunals". The word "Courts" is used to designate those
Tribunals which are set up in an organized State for the
Administration of Justice. By Administration of justice is
meant the exercise of judicial power of the State to
maintain and uphold rights and to punish "wrongs".
Whenever there is an infringement of a right or an injury,
the Courts are there to restore the vinculum juris, which is
disturbed. Where there is a lis-an affirmation by one party
and denial by another-and the dispute necessarily involves a
decision on the rights and obligations of the parties to it
and the authority is called upon to decide it, there is an
exercise of judicial power. That authority is called a
Tribunal, if it does not have all the trappings of a Court.”
Detailing with the contours of judicial activity that can engage in
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appraising the Speaker's reasonings comprised in the order, the Supreme
Court did notice some element of subjectivity that is invariably
involved:
“Though there are certain side-effects and fall-out which
might affect and hurt even honest dissenters and
conscientious objectors, these are the usual plus and minus
of all areas of experimental legislation. In these areas the
distinction between what is constitutionally permissible and
what is outside it is marked by a `hazy gray-line' and it is
the Court's duty to identify, "darken and deepen" the
demarcating line of constitutionality, an element of Judges'
own perceptions of the constitutional ideals inevitably
participate. There is no single litmus test of
constitutionality. Any suggested sure decisive test, might
after all furnish a "transitory delusion of certitude" where
the "complexities of the strands in the web of
constitutionality which the Judge must alone disentangle"
do not lend themselves to easy and sure formulations one
way or the other. It is here that it becomes difficult to
refute the inevitable legislative element in all constitutional
adjudications.”
9.
The learned Senior Counsel Sh. Rajiv Atma Ram relied on
Rajendra Singh Rana and others Vs. Swami Prasad Maurya and
others (2007) 4 SCC 270 that makes reference to Art 191(2) and the
extent of immunity that the Speaker’s decisions enjoy. Article 191(2)
states as “a person shall be disqualified for being a member of the
Legislative Assembly or Legislative Council of a State if he is so
disqualified under the Tenth Schedule.” The decision, which a Speaker
takes, para 8(3) states, shall be without prejudice to the provisions of
Article 105 or, as the case may be, Article 194 or to any other power
which he may have under the Constitution. Article 105 refers to the
power, privileges etc. of the Houses of Parliament and of the members
and committees thereof which is not immediately relevant to us. To our
purpose Article 194 is significant and the same is reproduced as under:PANKAJ KUMAR
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“194. Powers, privileges, etc, of the House of Legislatures
and of the members and committees thereof- (1) Subject
to the provisions of this Constitution and to the rules and
standing orders regulating the procedure of the Legislature,
there shall be freedom of speech in the Legislature of every
State.
(2) No member of the Legislature of a State shall be liable
to any proceedings in any court in respect of anything said
or any vote given by him in the Legislature or any
committee thereof, and no person shall be so liable in
respect of the publication by or under the authority of a
House of such a Legislature of any report, paper, votes or
proceedings.
(3) In other respects, the powers, privileges and immunities
of a House of the Legislature of a State, and of the members
and the committees of a House of such Legislature, shall be
such as may from time to time be defined by the Legislature
by law, and, until so defined, shall be those of that House
and of its members and committees immediately before the
coming into force of Section 26 of the Constitution forty
fourth Amendment Act, 1978.
xxxx
10.
xxxx
xxxx
xxxx
If these provisions are cited to suggest that the actions of
the Speaker cannot be put to challenge and they enjoyed an absolute
immunity, it is clearly wrong in the proposition which we have already
extracted that the Speaker acting under Tenth Schedule acts as a
Tribunal. The reference to Article 194 in Paragraph 8 enjoins that the
power of the Speaker shall be directed to frame appropriate rules for
giving effect to the provisions. Clause (3) deals with the powers of the
Speaker to direct that any willful contravention by any person of the
rules could be dealt with in the manner provided for breach of privilege
of the House. This has nothing to do with the nature of function which a
Speaker will exercise while adjudging the disqualification under
Paragraph 4 of the Tenth Schedule. It is, on the other hand, the manner
of punishment that could be handed down for any willful contravention
by any person. The privileges which the Speaker would enjoy under
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Article 194 cannot be seen in the context of a judicial review that is
permissible for his position. The point in the first instance is whether
the Speaker had adequate material for immediately accepting the case
of merger.
(ii)
11.
Factual consideration of the contentious issue of
merger in the light of interpretation of Para 4(2) of
Sch X of the Constitution
The task must, therefore, be to stave clear off the tangled
web of the circumstances that gave place to 5 of the members switching
loyalty to the single largest party in the assembly under a claim that the
party to which they belonged had merged with the largest party. In this
must contain the interpretations of Paragraph 4 to examine whether the
action resulted in disqualification or it was saved by a legitimate merger
of the party. Since the claim to merger was brought through a challenge
by a person claiming to be the President of the said party, it would
require to be seen whether the Speaker's original decision fell outside
the constitutional mandate of what was required to be examined and
whether there had been any failure in such an adjudicatory process to
whatever modicum of judicial application of mind was required in such a
process. Since mala fides are attributed as vitiating the ultimate order,
even apart from examining whether there had been a breach of the
constitutional mandate, the appraisal shall be whether the Speaker was
himself spirited by mala fides in taking the decision which is impugned
in this writ petition. The mala fides is not of the first decision rendered
on 09.11.2009 but in the decision of the Speaker exercising the power of
jurisdiction on a challenge under Paragraph 6 of the Tenth Schedule of
the Constitution. In the writ petition in CWP No.14196 of 2010, the
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petitioner came to the Court impleading also the earlier Speaker who
took a decision on 09.11.2009 namely Sh. Harmohinder Singh Chatha but
during the course of proceedings, the counsel was reported to have
made a statement that he was giving up his plea on mala fides. The
ultimate decision after the adjudicatory process was rendered by Sh.
Kuldeep Sharma, who is arrayed as the 2nd respondent, against whom
there is a fresh ground of mala fides attributed.
(a)
12.
Results in the assembly elections, 2009
First to the factual details of the circumstances when the
decision of merger was communicated by the respondents No.3 to 6
initially and the 7th respondent, a while later: The State of Haryana
went to a public poll for election of Members of Legislative Assembly to
90 seats. The petitioner's party HJC (BL) was reported to have contested
from 88 constituencies out of total 90. The final tally in the assembly
was:
INC
INLD
31
HJC (BL)
6
BJP
4
BSP
1
SAD
1
Independents
7
Total
90
(b)
13.
40
The initial parleys, as admitted by the petitioner
It can be noticed that the party with the largest tally was
still five short of the majority that was required in the house. They
needed desperately persons to support them and admittedly there had
been some consultations which INC had with HJC (BL). In page 187 of
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the file that contains the extract of evidence given by the petitioner in
the enquiry before the Speaker, the question posed to the petitioner
was whether he was negotiating with the Congress Party for a merger to
which he had answered:
“Yes, I was negotiating with the Congress Party but there
was no negotiation on decision of merger with any party for
that matter at any point of time.”
Further the question at page 188 was:
“Did you meet the Chief Minister Haryana separately before
the vote of confidence in 2009?”
The answer to the question was “Yes, I met the Chief
Minister”.....
“What was transpired between you and the Chief Minister in
one to one meeting before the vote of confidence meeting?
(sic).
“It was one to one meeting between me and Sh. Bhupinder
Singh Hooda, Chief Minister and I am not constrained and
not ready to tell you what transpired between us.” (sic)
Further in the cross-examination, he had also stated that
“The HJC (BL) had authorized me to talk to the Chief
Minister prior to the vote of confidence motion in the
assembly and they had given me authority to discuss all the
issues with him and having been armed with such a
resolution, I had gone to the Chief Minister to have a one
to one meeting to discuss all issues.”
This would surely show that there had been some consultations but at
every time in the cross-examination the petitioner had denied that
there was any talk of merger. The actual dates of meetings with the
Chief Minister had not been elicited but the answers were only to the
extent that he had his meeting with the Chief Minister prior to the vote
of confidence.
(c)
14.
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The letter allegedly signifying merger and the
minutes preceding it
The first major political activity of reckoning with the
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assembly precincts was on 28.10.2009 when the first session of the
Vidhan Sabha was held. All six MLAs of HJC (BL) including the petitioner
participated in the session and also took them as MLAs of HJC (BL).
Seats had been separately allotted to them. The next most significant
activity was on 09.11.2009 when the letter of respondent Nos.3 to 6 had
been delivered to the Speaker which reads as under:“A decision has been taken to merge Haryana Janhit
Congress (BL) party with the Indian National Congress Party
in terms of the provisions contained in para 4 of the Tenth
Schedule of the Constitution of India. The decision in this
regard is attached herewith. All the requirements of merger
in terms of the above said constitutional provisions have
been fulfilled while taking the decision. Thus, you are
requested to accept the merger of Haryana Janhit Congress
(BL) with Indian National Congress and recognize the
applicant legislators as members of the Indian National
Congress in the Haryana Vidhan Sabha.”
The minutes of the meeting which this letter had accompanied could
also require to be extracted, for, it is these resolutions that purport to
legitimatize the legislators' action for the shift in loyalties to INC.
“A meeting of the legislators of Haryana Janhit Congress
(BL) Party elected to the 12th Haryana Legislative Assembly
was held on 09.11.2009 to consider and decide merger of
original Haryana Janhit Congress (BL) party with Indian
National Congress Party in terms of para 4 of the Tenth
Schedule of the Constitution of India. In this meeting, the
requisite number of the members of the Haryana Janhit
Congress (BL) Legislature Party namely S/Shri Satpal, MLA,
Dadri-56, Vinod Bhayana, MLA, Hansi-50, Narender Singh,
MLA, Narnaul-70 and Zile Ram Chochra, MLA, Assandh-23,
have agreed to merge Haryana Janhit Congress (BL) Party
with Indian National Congress Party. It has also been
decided to make an appropriate application to the Hon'ble
Speaker, Haryana Vidhan Sabha for recognizing the
undersigned members as the Members of Indian National
Congress Party in the Haryana Vidhan Sabha.”(underlining
mine)
(d)
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Factors that could have gone into reckoning for the
Speaker
CWP No.2900 of 2013
15.
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The action of the speaker which was put to challenge on 14
applications that had been filed by the petitioner and others came on
the same day on 09.11.2009. At that time evidently all that the Speaker
had at his command was the letter from the 4 legislators with the
resolution of the minutes of the meeting of the legislative party held on
09.11.2009. The Speaker's satisfaction was, therefore, pinned wholly to
what this order contained. The order would require to be, therefore,
reproduced of what went into reckoning:“....I have considered the application along with the
accompanying decision/resolution merging the Haryana
Janhit Congress (BL) party with Indian National Congress
Party. I have perused the relevant provisions of Constitution
of India contained in the Tenth Schedule thereof. I am of
the considered opinion that the application deserves
acceptance in terms of provisions of the Constitution of
India. I have also satisfied myself with regard to the identity
of the applicants as also their free will. Leader of Congress
Legislature Party, Ch. Bhupinder Singh Hooda and President
HPCC, Shri Phool Chand Mullana have communicated to me
in writing accepting the merger.
I, therefore, hereby accept the merger of Haryana Janhit
Congress (BL) Party with Indian National Congress Party with
immediate effect in terms of Tenth Schedule of Constitution
of India. Consequently, all of the above named four
legislators Shri Satpal, MLA, Dadri-56, Vinod Bhayana, MLA,
Hansi-50, Narender Singh, MLA, Narnaul-70 and Zile Ram
Chochra, MLA, Assandh-23 will be henceforth recognized as
legislators of Indian National Congress Party in the Haryana
Vidhan Sabha.”
(e)
16.
Contention on behalf of the petitioner: Speaker’s
order hasty and without any basis:
The whole of arguments were on what the Speaker was
expected to do when an application is filed by four members of the
Assembly and the 5th one joining soon thereafter by a written
communication that the original political party had merged with the
INC. The letter itself made no reference to any particular date of
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meeting. The letter also does not indicate that the original political
party took the decision. All that it states is that the decision to merge
had taken place in accordance with Para 4 of the Tenth Schedule of the
Constitution. Even the minutes of the meeting which was attached to
the letter made reference only to a meeting of the Legislators that was
said to have been held on 09.11.2009. Here was a reference that
members of the legislative party decided the merger of original political
party. While the Senior Counsel Sh. Satya Pal Jain would argue that if
four members had given a letter in person and stated that they had
decided that the original political party has decided to merge, the most
logical thing for any Speaker was to do, was to undertake an enquiry by
calling the President of the political party to elicit information whether
the assertion was correct. The Senior Counsel would submit that rules of
natural justice dictated such a course as laid down in Kihoto Hollohen's
case (supra) that the Tribunal in its adjudicatory process would follow
the principles of natural justice. The most fundamental precept of
natural justice is built up on the edifice of personal hearing and
therefore, the argument was that a quick decision taken by the Speaker
on the same day that he was satisfied that there had been a merger was
not merely hasty but it was against the constitutional mandate.
(f)
17.
Response by respondents: Para 4(2) Sch X, the
governing consideration
On this there was a very serious contest by each of the
counsel appearing on behalf of the respondents. Particularly the Senior
Counsel Sh. Sanjeev Sharma, who was appearing for the Speaker, Sh.
Cheema who was appearing for the Speaker in person and Sh. Rajiv
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Atma Ram appearing for respondent No.3 would argue that a Court will
not add to the language of what is contained in the Constitution. There
were two aspects to the argument. One, there is no notice
contemplated under the provision to any party before taking any
decision and two, the mere letter of communication by 2/3rd members
of the legislative party signifying their agreement to merger shall be
deemed to be proof of the decision of such merger of the original
political party. Para 4 of the Schedule has no concern with what takes
place outside the Assembly.
The action of the Speaker will depend
wholly on what 2/3rd members of the Legislature Party declare within
the House. To appreciate these contentions, Para 4 and Para 6 would
be the governing consideration for the whole case and would require a
reproduction:“4. Disqualification on ground of defection not to apply in
case of merger.- (1) A member of a House shall not be
disqualified under sub-paragraph (1) of paragraph 2 where
his original political party merges with another political
party and he claims that he and any other members of his
original political party(a) have become members of such other political party or,
as the case may be, of a new political party formed by such
merger; or
(b) have not accepted the merger and opted to function as a
separate group, and from the time of such merger, such
other political party or new political party or group, as the
case may be, shall be deemed to be the political party to
which he belongs for the purposes of sub-paragraph (1) of
paragraph 2 and to be his original political party for the
purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph,
the merger of the original political party of a member of a
House shall be deemed to have taken place if, and only if,
not less than two-thirds of the members of the legislature
party concerned have agreed to such merger.
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6. Decision on questions as to disqualification on ground
of defection.- (1) If any question arises as to whether a
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member of a House has become subject to disqualification
under this Schedule, the question shall be referred for the
decision of the Chairman or, as the case may be, the
Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to
whether the Chairman or the Speaker of a House has
become subject to such disqualification, the question shall
be referred for the decision of such member of the House as
the House may elect in this behalf and his decision shall be
final.
(2) All proceedings under sub-paragraph (1) of this
paragraph in relation to any question as to disqualification
of a member of a House under this Schedule shall be
deemed to be proceedings in Parliament within the meaning
of article 122 or, as the case may be, proceedings in the
Legislature of a State within the meaning of article 212.
1. Finding: Want of notice to the petitioner before
decision is not fatal, but a missed opportunity for the
Speaker to collect vital evidence
18.
The Senior Counsel Sh. Rajiv Atma Ram would argue that
Para 4 does not contemplate any notice to the President of the political
party that is said to have merged. Relying on Unique Butyle Tube
Industries (P) Ltd. Vs. U.P. Financial Corporation (2003) 2 SCC 455,
he would urge that Courts will not supply what is causus omissus in a
statute. The counsel would also argue that the writ petition does not
actually challenge either the letter to the Speaker given by respondent
Nos.3 to 6 or the minutes of the Haryana Janhit Congress (BL) legislative
party that accompanied that letter Annexure P-1. Rajendra Singh
Rana and others Vs. Swami Prasad Maurya and others (2007) 4 SCC
270 is a decision of the Supreme Court that makes relevant the nature
of enquiry that the Speaker shall make when an issue of split in the
political party or a merger is asserted by one and denied by another
party. The Supreme Court ruled in para 27 as under:“call it a defence or whatever, a claim under para 3 as it
existed prior to its deletion or under para 4 of the Tenth
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Schedule are really answers to a prayer for disqualifying the
member of the legislature on the ground of defection.......
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 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 the 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 the disqualification in view of a split
in the party or in view of the merger.
Indeed, this judgment in a way exposes a certain fallacy which was
contained in an argument presented by the learned Senior Counsel Sh.
Harbhagwan Singh appearing for some of the respondents. The learned
Senior Counsel sought to underplay the laconic order passed by the
Speaker initially accepting the merger on 09.11.2009 simply acting on
the letter given by four of the legislators. He sought to contend that the
decision that a Speaker makes is provisional and the correctness of the
decision would be examined only when a contest is brought through an
application under para 6 of the Tenth Schedule. This argument is
abjectly wrong in the light of the observations made by the Supreme
Court in Rajendra Singh Rana's case referred to above.
19.
Even when the Senior Counsel for the respondents were
pointing out that there was no procedure mentioned for issuance of a
notice to the President of the party, it was also suggested mildly that
there was not even proof that the petitioner was President of the party
and any notice must have been given. The learned Senior Counsel
appearing on behalf of the petitioner would point out that this was at all
times admitted case and was never doubted. The senior counsel would
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make reference to his own earlier writ petition in CWP No.14194 of 2010
where in para 6 of the writ petition, the petitioner has stated that in
the first meeting of the newly elected members of HJC (BL) on
23.10.2009 under his chairmanship at his residence at New Delhi were of
the six newly elected MLAs belonging to the party, they paid tribute to
Sh. Bhajan Lal and the petitioner for successfully leading the party in
first ever General Assembly Election in 2009 and elected the petitioner
unanimously as leader of the legislative party of HJC (BL). In the reply
filed by the respondents in the said writ petition, it was contended that
contentions made in paragraphs 2 and 6 are not contested. If that was
admitted position then even in the letter of the respondents, there
ought to have been a reference to the decision which the President of
the party had taken. It was natural that if he had been a sole dissenter,
even his dissent must have been referred to in the letter. There was no
question of even recording a dissent in the minutes of the meeting of
the legislative party, for, admittedly the minutes did not record even
the presence of the petitioner in the legislative party meeting said to
have taken place on 09.11.2009.
20.
I am prepared to go as far as to accede to the argument
made by the learned Senior Counsel appearing on behalf of the Speaker
that Paragraph 4 itself does not contemplate a notice but one would
expect such a notice to be only exigent, for, in the light of the decision
in Rajendra Singh Rana's case (supra), the decision of the Speaker to
act on the letter was not meant to be provisional but it was referred to
be a part and parcel of every important source of information and come
to a decision accepting or rejecting the case of merger. The language of
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the minutes (Annexure P-2) of the legislature party made no reference
to any resolution of merger of the original political party but it had
surprisingly, merely set out that the legislative party met to consider
and decide (on the) merger of original Haryana Janhit Congress (BL)
party with Indian National Congress Party. In other words, the Speaker
had simply no manner of knowing when the original political party had
decided on the merger. He surely missed an opportunity to elicit the
necessary information, apart from looking at the letters given to him by
respondents No.3 to 7.
2. Finding: Deeming provision in para 4(2) cannot be
conclusive; It merely provides for a presumption and
occasions to the Speaker the manner of collecting
evidence
21.
All the respondents would join in chorus to contend that
Para 4 (2) makes possible such a decision to be made by the Speaker
without looking for more. The learned Senior Counsel appearing on
behalf of the Speaker Sh. Sanjeev Sharma was at pains to point out to
the language employed under Para 4(2) that makes an immediate
inference possible by the fact that 2/3rd of the members of the
legislative party had agreed to such a merger. According to him, if four
members of the party had given it in writing that they had merged, it
would mean that the merger of the original political party of the
members of the house shall be deemed to have taken place. If the issue
for the Speaker was at all times the consideration of the fact that 2/3rd
of the Members in the legislative party had agreed to such a merger, the
original political party would also be taken as merged then there was
hardly any quasi judicial function which the Speaker was required to
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perform. It would come with a mathematical ease that if 2/3rd
members of the legislative party had agreed to such a merger, the
original political party must also be taken as having merged. The
language in the paragraph cannot be understood thus and I will state the
reasons why.
22.
Para 4(2) must be used in the context of how a Speaker to
whom the communication is given would start the process of taking a
decision only if 2/3rd of the members of the legislative party have
agreed to the merger. If the persons, who applied to him, were even
less than 2/3rd in a situation where they had even actually decided
merger of the original political party, the Speaker may not be required
to take notice of the same at their instance. He is entitled to insist that
till 2/3rd of the legislative party had actually agreed to the merger,
there will be no inference of the merger of the original political party.
This provision only makes possible the Speaker to set the process moving
for adjudication of whether the merger as pleaded by the applicants
would be required to be considered or not. It is not as if the Speaker
will not undertake an adjudication at all, if less than 2/3rd members
signify their consent to the merger. That would still be required to be
done but in such a situation the applicants are bound to secure
appropriate evidence of the decision of the original political party
regarding merger. There will be no automatic presumption or deeming
in such a situation.
23.
It is possible even under Para 4(1)(b) that in spite of the
original political party deciding to merge by a majority, if any one
member of the legislative party may not accept such a merger, he shall
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not still be disqualified. He is entitled to retain his own identity in the
original political party and the identity will remain for him without
being in any way affected by merger of the majority decision of the
members of the original political party. On the other hand, if the
original political party had taken a decision not to merge, there is no
question of 2/3rd of the members of the legislative party deciding to
merge and make possible a deeming of merger of the political party
because Para 4(2) will make possible for deeming of ‘such merger’ of
the original political party.’ In other words, without the actual decision
of the merger of the original political party, there cannot be a deeming
of ‘such merger’. The first task of the speaker shall be to go along with
the presumption of merger and look for corroborative evidence of such
merger of the original political party. The minimum that the Speaker
shall do would be to elicit details of the decision of the original political
party. The 2/3rd of number of the legislative party may themselves
bring to notice of the Speaker proof of such fact or the Speaker shall
engage in some enquiry to elicit such information. In effect, in my view,
the decision of the 2/3rd of the members agreeing to the merger does
not dispense with having to prove the actual merger of original political
party notwithstanding the deeming provision. The Speaker is bound to
examine and elicit details of the information that the original political
party has actually merged and there was evidence for such a course. If it
was conclusive for the Speaker to pronounce on the merger of the
original political party by the only fact that 2/3rd of the members of the
legislative party have agreed to ‘such merger of the original political
party’ then it can lead to absurd situation of when, for example, a lone
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member of the legislative party who represents 100% presence in the
assembly announces a merger of the original political party and his
consent to such a course as requiring a mandatory acceptance for the
Speaker that the original political party has actually merged. It could
well be that out of several contestants, there was only one successful
candidates in the assembly and the original political party contained
several delegates who though not successful were entitled to exercise
their democratic control within the party and take a decision
independently of how the member of the legislative party took a
decision. This is merely to explain the practical impossibility of casting
the whole weight on the expression of consent to merger by the
members of the legislative party for an inference that the original
political party has also merged.
(a) Precedents on Paras 2 to 6 of Sch X examined
24.
There was fairly large volume of case laws that the parties
relied on and most of the time was dealt on the examination of the
decisions that have appeared under para 4(2). It should, therefore, be
the time to turn into the relevant laws for how para 4(2) could be
understood. All the counsel for the respondents derive their strength
from the arguments on the effect of Para 4 as interpreted by this Court
through a Full Bench decision in Baljit Singh Bhuller and another Vs.
Hon. Speaker Punjab Vidhan Sabha, Punjab Vidhan Sabha and others
Vol.CXVII (1997-3) PLR 367. It was a case of lone member of a
Communist Party (UCPI) who decided to merge with the Congress-I party
in the State Legislature. On a letter given by him that there had been a
merger of the Communist Party with the Congress Party, the Speaker
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acceded to the letter and allowed the merger of the Communist Party
with Congress-I legislative party. The Secretary of Punjab State
Committee of UCPI approached the Speaker of the assembly that
original political party UCPI never passed any resolution with regard to
the merger and that the lone legislative party member had joined
Congress party on his own and that he had incurred a disqualification to
continue as a member of the legislative assembly because of his
defection. After setting out the definitions of legislature party, a Full
Bench of this Court held that Paragraph 2 provided for disqualification
on the ground of defection and according to it, a member of the House
belonging to any political party shall be disqualified from being a
member of the house if he had voluntarily given up his membership of
such political party or if he voted or abstained from voting in such house
contrary to any direction issued by the political party to which he
belonged. The Full Bench held that Paragraphs 3 and 4 were in the
nature of exceptions to Paragraph 2. Para 3 saved the member of a
legislative party from incurring disqualification if there was a split in the
original party, while Para 4 saved a member from being disqualified if
his original political party merged with another political party. Taking
the logic to the farthest, the Full bench held on what was important and
what support wholly the contention of the respondents as found in para
7 as follows:“7. A situation may arise where there may be a merger of
two political parties at the national level but at the State
level if two-thirds of the members of the Legislature party
of the political party do not agree for such a merger then it
cannot be taken as a merger because of the provision
contained in sub paragraph 2 of paragraph 4 as it requires
that two-thirds of the members of the Legislative party must
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agree to such merger. Thus, it is clear while incorporating
sub paragraph 2, the Parliament intended that Legislature
party has to be treated separately from the political party
for the purpose of seeing whether there is a merger of the
political party. This aspect has to be decided keeping in
view of the fact that 10th Schedule was added in the
Constitution of India with an intention to prevent an elected
member of Parliament or State Legislature from crossing the
floor in the House and to prevent political defection for
extraneous considerations other than an honest dissent. If
two-thirds members of a Legislature party of a political
party agree to merge with another political party then it
should be taken that there was a merger for the purpose of
paragraph 4. The intention of the parliament was clear in
this regard by the words used in sub paragraph 2 of
paragraph 4 in its wisdom. In sub paragraph 2 of paragraph 4
the words used are the merger of the original political party
of a member of the House "shall be deemed to have taken
place." The words "shall be deemed to have taken place"
creates a legal fiction by incorporating a deeming
provision......”
25.
The effect of the Full Bench decision, therefore, would be
that Clause 4(2) which provides for a fiction by introducing a deeming
clause would make irrelevant any further enquiry. It is perfectly possible
that a candidate who represented 2/3rd of the legislative party saved
himself of the disqualification by the only fact that he or a group
representing 2/3rd of the members of the legislative party declaring
that they agreed to the merger by the original political party and the
proof of such merger is deemed by the Speaker acting on the
representation. If it however, turns out that the representation was not
correct and the 2/3rd members had expressed what was against the
decision of the original political party, say it did not favour merger,
then the deeming has perforce to be reversed. The language of para 4
(2) presumes a decision of merger by the original political party and the
2/3rd members agreeing to such merger. If there was no merger
outside, there was no question of saving the disqualification for the
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members of the legislature party. But that was not how the Full Bench
interpreted the provision. The effect to the decision finds expressed in
para 11 where the Full Bench ruled that the 2nd respondent being the
lone member of the UCPI decided to merge with Congress-I party in the
State Legislature his case squarely fell within the scope and ambit of sub
paragraph 2 of paragraph 4. The Full Bench went as far as to state in the
penultimate paragraph that proceedings before the Speaker were
protected from being questioned or challenged on the ground of alleged
irregularity of procedure under sub-paragraph 2 of paragraph 6 to Tenth
Schedule read with Article 212(1) of the Constitution and purported to
apply what was stated by the Supreme Court in Kihoto Hollohon Vs.
Zachillu (supra) that these provisions attract an immunity from doing
mere irregularities of procedure and if the Speaker had to interpret sub
para 2 of para 4, it did not involve any determination of disputed fact.
In fact, it is precisely a disputed question that always comes for hearing
in an adjudication under para 6. The strength of reasoning of a Full
Bench, I would, under normal circumstances, have no power to question
but this reasoning found reflected in yet another judgment delivered by
the same Full Bench on the same day in Madan Mohan Mittal, MLA Vs.
The Speaker, Punjab Vidhan Sabha, Chandigarh and others
Vol.CXVII (1997-3) PLR 374 was brought under judicial scrutiny by the
Supreme Court in Jagjit Singh Vs. State of Haryana and others (2006)
11 SCC 1 and adversely commented. It should become necessary to
examine the facts and the decision in Madan Mohan Mittal (supra).
26.
In the above latter case, the respondents No.3 and 4, who
had been set up as candidates by Bhartiya Janta Party and elected
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among four other members of the same party, decided to leave BJP and
joined Congress-I. It was stated that the 4th respondent was even
expelled from the primary membership of the BJP for anti-party activity
and the same was also intimated to the Speaker of the legislative
assembly. The petitioner, who was a leader of the original political
party informed the Speaker that there was no split in the party as
claimed by respondents No.3 and 4. The petitioner also sent a letter to
the Speaker to declare respondents No.3 and 4 as disqualified. Without
giving any opportunity to lead any evidence or personal hearing to the
petitioner, the Deputy Speaker passed the impugned order on
06.05.1993 holding that there was split in the party and the original
party of BJP having six seats was clearly seen to be split with
respondents No.3 and 4 constituting 1/3rd of the members of legislative
party deciding to join Congress-I and therefore, they were not
disqualified in view of para 3. The Full Bench applied the same logic as
what was expounded in the other decision in Baljit Singh Bhuller's case
referred to above and held that the candidates were safe.
27.
The decisions exemplify a typical situation where the Bench
was comfortable about holding that there need not be a merger of two
political parties at national level but at the State level if 2/3rd members
of the legislative party agreed for such a merger then it could be taken
as a merger because of the provisions contained in sub para 2. Of the
extreme illustration of what we have given about a lone member was
squarely applied here that the Speaker was not required to see anything
beyond whether the persons agreeing for merger constituted 2/3rd of
the legislative party or not. If he or they did, there was a merger for the
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purpose of Schedule Ten, no matter that there was no merger of the
original political party outside. The learned Senior Counsel for the
petitioner would, therefore, confront the situation directly with what
had typically happened in this case. The Election Commission of India
did not recognize the merger of HJC (BL) with INC and such a plea made
before it was rejected. We have already seen that the decision of CEC
not to recognize merger had nothing to do with Speaker's duty as
enjoined under Schedule 10. This decision of the Speaker was made to
be effective only for the purpose of Schedule 10 and it cannot alter the
situation as far as the Election Commission was concerned or vice versa.
28.
The learned Senior Counsel Sh. Sanjeev Sharma would,
therefore, argue that a Speaker who enjoys an immunity and takes a
decision, does so on the strength of what para 4(2) with a deeming
provision that makes possible for him to infer that there had been
actually a merger of the original political party with INC. The Senior
Counsel for the petitioner pointed out to a decision of Nagaland
Legislative Assembly rendered on 25.08.2014 when 3 members of the
House out of 4 members belonging to Congress Party had declared that
the original political party had merged with Bharatiya Janata Party.
They hoped to sail through the deeming provision under Para 4(2). The
Speaker, however, disqualified the members holding that “upon enquiry
as required under law”, he found that their original political party had
not merged with BJP on the date of their claim. Even this order would
be seen to be bad if we apply the argumentative reliance on Para 4(2)
but Sh. Cheema, Senior Counsel for the 2nd respondent will underplay
the same by contending that the Speaker had not referred to the Full
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Bench decision of the Punjab and Haryana High Court in Baljit Singh
Bhuller.
29.
The effect of deeming provision was also canvassed by Sh.
Rajiv Atma Ram referring to the decision of the Supreme Court in P.K.
Unni Vs. Nirmala Industries and others (1990) 2 SCC 378. The
decision said while interpreting Order 21 Rules 89 and 92(2) relating to a
conflict of the period of limitation for setting aside sale that the
legislature would be presumed to have made no mistake and it intended
what it said. In Union of India Vs. Rajiv Kumar (2003) 6 SCC 516, the
Supreme Court was explaining the effect of a deeming provision in the
context of Rule 10 (2) of Central Civil Services (Classification, Control
and Appeal) Rules, 1965 that deeming a suspension of an employee to
have taken place if he had been taken into judicial or police custody.
The Supreme Court was holding that if the employee had been released
from custody, the suspension is deemed to be immediately revoked and
an order of suspension subsequently made by referring to a person as
having been taken in custody would be inoperative. The Supreme Court
held that under Rule 10 (2), an actual order of suspension was not
required to be passed thereunder. That is deemed to have been by the
operation of legal fiction.
30.
The reliance on P.K. Unni (supra) and Rajiv Kumar (supra)
is fallacious because the deeming provisions do not come with how such
a presumption could be challenged subsequently.
enacted
makes
complete
and
render
The legal fiction
unnecessary
any
further
examination in those cases. Here we have Para 6 which throws open the
decision to a challenge. There is no irreversibility to the decision of the
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Speaker under Para 4, a situation that cannot arise in the provision dealt
with in the above two cases. If the interpretation of the Full Bench in
Baljit Singh Bhuller (supra) still holds the field, there could be really no
contest when an application is filed under para 6. All that a Speaker
would be required to do is to see whether the persons applying to the
Speaker represented 2/3rd of the legislature party expressing agreement
to the merger of the original political party with another party. If the
mathematical calculation was complete which could be done in a trice,
the proceedings could come to a stop, for, the Speaker is not required
to really examine whether there is an actual merger of the original
political party with another party. It would deem and make final such a
case of merger if 2/3rd of the members of the legislative party declared
so. All this legal wrangling that is spread during the entire span of five
years would remain answered by a simple mathematical calculation that
5 out of 6 persons of the legislative party declared that there was a
merger with the original political party and that closed all options for
even a person to come with an application under Section 6 and contest
such a decision. Even at the time when a challenge was brought by
means of a writ petition at the instance of the petitioner that the
Speaker was not taking up the enquiry, the Speaker could have closed
options by merely pointing out to the numbers and pre-empted any
decision of this court. All these expansive arguments on interpretation
of the various provisions could have been scuttled by reference to para 4
(2) in the manner interpreted by the Full Bench. If this interpretation
has found judicial approbation in other cases following it, I will find no
more cause to pronounce and declare the decision of the Speaker as
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valid. That shall not be. Here is a reason why a searching exercise of the
legal proposition now lying embedded in other decisions that have
impliedly overruled the reasoning contained in the Full Bench in Baljit
Singh Bhullar (supra) becomes necessary.
31.
In Jagjit Singh Vs. State of Haryana and others (supra),
the petitioners were elected as independent members and had been
disqualified under Para 2(2) for having joined the Congress Party. The
Speaker had relied on video recording of interviews on television where
the petitioners had admitted and acknowledged joining the Congress
Party, video recordings of participation in meetings of Congress
legislative party in the premises of the legislative assembly soon after
the interview and the petitioners' own signatures on the CLP proceedings
register. The Speaker had given an opportunity to give a reply for a
motion for disqualification and instead of even pleading of how the
admissions made by them in the video recorded interviews were
erroneous or that the recordings were doctored or inauthentic, he
complained of being declined the opportunity to watch the recordings
and adopted a course of vague denial and insisting on opportunity to
lead evidence and cross-examine the person who would have obtained
the video recordings from the television channels. The Speaker denied
such an opportunity and the petitioners complained violation of
principles of natural justice. The Supreme Court, while examining the
same, held that persons who had failed to plead as to how the
statements attributed to them were erroneous cannot be heard to state
that non-grant of opportunity to cross-examine led to violation of
natural justice. The Court cautioned that petitioners would not be
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permitted to sit on the fence, take vague pleas and make general
denials in proceedings under Schedule 10. The Supreme Court allowed
for sufficient flexibilities in rules and procedure for the Speaker to
prevail and found that the decision of the Speaker not to allow for
additional time sought for by the petitioners to file a reply to be
justified and even the reliance of the video clippings by the Speaker was
found to be sufficient in the light of Section 65B of the Indian Evidence
Act, 1872. Even a personal knowledge of the Speaker of having seen and
heard the members on various occasions in sessions of the house could
not be taken as illegal, for, Speaker was the only authority who could
decide on such disqualification. Finding a peculiar situation that a
Speaker could not transfer the case to some other Tribunal, the same
way that a Court could do if a Judge comes from a personal knowledge,
the Supreme Court applied doctrine of necessity to hold that the
Speaker cannot do what a Court could have done but would still take a
decision and apply even the information secured on personal knowledge
as not violative of principles of natural justice.
32.
The Supreme Court dealt at length the objects for enacting
the defection law namely to curb the menace of defection. Despite
defection, a member cannot be permitted to get away with it without
facing the consequences of such defection only because of mere
technicalities. In para 29 of the judgment in Jagjit Singh, it is
observed:“It is essential to bear in mind the objects for enacting the
defection law, namely to curb the menace of defection.
Despite defection a member cannot be permitted to get
away with it without facing the consequences of such
defection only because of mere technicalities.
The
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substance and spirit of law are the guiding factors to decide
whether an elected member has joined a political party or
not after his election.”
This judgment actually examines the decision of Full Bench in Madan
Mohal Mittal's case (supra), a judgment delivered on the very same day
by applying the very same logic in Baljit Singh Bhuller's case (supra).
The Full Bench was considering the legality of an order passed by the
Deputy Speaker declining to declare respondents No.3 and 4 as
disqualified under Para 2 of Tenth Schedule, where it had observed,
“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 the State Legislature.”
In a case of split, the Supreme Court said in Jagjit Singh's case (supra)
that
“1/3rd members of the State Legislature belonging to that
political party must form a group to make a split effective
with the State Legislature but does not lead to the
conclusion that the Parliament intended to treat the State
unit of a political party as a separate entity for the benefit
of para 3..... if the member is set up by a national party, it
would be no answer to say that events at national level has
no concern to decide whether there is a split or not. In case
a member is put up by a national political party it is split in
that party which is relevant consideration and not a split of
that political party at the State level.”
The Supreme Court was actually finding the judgment in Madan Mohan
Mittal's case to have not laid down a correct law, the decision that was
in accord with the logic propounded in Baljit Singh Bhuller's case that a
lone member in a legislature party could cause a deeming merger of the
original political party and that was sufficient by virtue of para 4(2).
The
Supreme
Court
applied
the
reasoning
expounded
in
G.
Vishwanathan Vs. Hon'ble Speaker Tamil Nadu Legislative Assembly
(1996) 2 SCC 353 to dispel the view expressed in Madan Mohan Mittal
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(supra) to be wrong. It quoted in G. Vishwanathan:“Para 1 (b) (defining 'legislature party') cannot be read in
isolation. It should be read along with paras 2, 3 and 4.
Para 1(b) in referring to the legislature party in relation to a
member of a House belonging to any political party, refers
to the provisions of paras 2, 3, 4, as the case may be, to
mean the group consisting of all members of that House for
the time being belonging to that political party in
accordance with the said provisions, namely, paras 2, 3 and
4 as the case may be. Para 2(1) read with the Explanation
clearly points out that an elected member shall continue to
belong to that political party by which he was set up as a
candidate for election as such member.....”
It observed, after the discussion that the Punjab case (i.e. Madan Mohan
Mittal) was not correctly decided. The congruence of the decision of the
Legislature Party to an earlier decision of the original political party
regarding merger has to be complete and established as such. After all,
“A legislature party is not a separate entity. It is only a wing within the
original political party” (Ram Bilas Sharma Vs. Speaker, Haryana
Vidhan Sabha 1997(4) RCR (Civil) 519, 1997 (3) PLR 318).
33.
The incorrectness of the view expressed in Baljit Singh
Bhuller's case operates by implied overruling by the reasoning adopted
by the Supreme Court in Jagjit Singh's case and its express ruling that
Full Bench decision in the Punjab case to be wrong. We can arrive by
the same inference by adverting to another judgment of the Supreme
Court. Rajendra Singh Rana and other Vs. Swami Prasad Maurya and
others (2007) 4 SCC 270 was a case of split in the party where 13 MLAs
of Bahujan Samaj Party who lent support to Samajwadi Party to form the
Government. The leader of the BSP legislature party filed a petition
under Article 191 for disqualification. It was contested by 37 MLAs said
to be on behalf of 40 MLAs elected on BSP ticket requesting the Speaker
to recognize the split on the basis that 1/3rd of the members of BSP
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legislative party consisting of 109 legislators had in a body separated
from the party pursuant to a meeting held at MLAs' hostel, Lucknow. The
Speaker verified that 37 members who had signed the application
presented to him had in fact signed it, since they were physically
present before him. Over-ruling the objection of the BSP, the Speaker
passed an order ordering a split in the BSP party on the arithmetic that
37 out of 109 comprised 1/3rd of the members of the legislative party.
This group which had been known as Lok Tantrik Bahujan Dal was short
lived, for, the Dal had merged with SP party. The Speaker did not decide
the application made by BSP seeking disqualification of 13 MLAs who
were part of 37 that appeared before the Speaker and postponed the
decision. On the subsequent date, 3 more MLAs supported 37 who had
appeared before him and the Speaker accepted their claim as well. The
decision of the Speaker was put to a challenge through a writ petition
filed to the High Court of the judicature at Allahabad. The decision
before the High Court had a chequered career and it is not necessary for
us to deal with it except to refer to the law laid down by the Supreme
Court in the said case. The Supreme Court held that decisions taken by
the Speaker in terms of Para 3, Para 4 or Para 2 of the 10th Schedule
enjoyed a qualified immunity as provided in para 6 of the Tenth
Schedule (emphasis supplied).
34.
The Supreme court observed further that 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 members has become disqualified to hold his
decision as a Member of Parliament or of the Assembly on the ground of
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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 could not be 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. Finding a justification for interference, the Supreme Court
held that there was a merit in the contention that the Speaker may not
enjoy full immunity in terms of Para 6 of the Tenth Schedule of the
Constitution and that even if he did, the power of judicial review
recognized by the Court in Kihoto Hollohan's case was sufficient to
warrant interference with the order in question. In this decision, it
could be noticed that the Supreme Court was literally applying the same
principle in the nature of enquiry for both a case filed under Para 3
(now repealed) that dealt with a split in the political party and the
merger that is contemplated in para 4.
35.
Rigour of enquiry for disqualification under Para 3 or Para 4
is not very different. This becomes relevant since all the senior counsel
appearing for the respondents would state that the reasoning in Jagjit
Singh (supra) overruling Madan Mohan Mittal (supra) will not apply
because the decision was with reference to split in the political party
covered in Para 3, since repealed, and not for merger dealt with in Para
4. The latter contains a deeming provision under sub clause (2) which is
not contained in para 3. This argument is wrong, because, even apart
from the fact that decision of Jagjit Singh itself refers to the
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insufficiency of just the view of the legislature party not merely in the
case of split but also in the case merger, as seen in preceding
paragraph, the existence of Para 6 itself makes vulnerable any decision
that assumes an automatic irrefutable presumption of merger by
referring to the deeming provision. The decision of the Speaker under
Para 4 is by no means a mechanical exercise.
As observed by the
Supreme Court in Dr. Mahachandra Prasade Singh Vs. Chairman,
Bihar Legislative Council (2004) 8 SCC 747, in the context of nature of
enquiry contemplated for deciding on disqualification under para 2,
where findings on several facts have to be recorded,
“Similarly, for application of Para 4, enquiry has to be
made whether the original political party merged with
another political party, whether the member of the House
has become member of such other political party, as the
case may be, of a new political party formed by such
merger or whether he has not accepted the merger and
opted to function as a separate group.”
This decision ought to be a complete answer to the scope of enquiry in
spite of the deeming provision.
36.
The same decision in Rajinder Singh Rana
(supra) also
approves of the majority view of the Full Bench in Parkash Singh Badal
and others Vs. Union of India and others AIR 1987 P&H 263. The
Court was holding that under para 6, the Speaker would have
jurisdiction 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 Speaker would
have no suo motu powers to reopen an issue and the pre-requisite for
invoking the jurisdiction itself would be the existence of a question for
disqualification of some member. This could happen only in one way
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that some member is alleged to have incurred the disqualification
enumerated in para 2(1) and someone interested approaches the
Speaker for declaring that the said member is disqualified from being
member of the house.
(iii) Burden of proof of establishing merger, on whom it
vests and whether established
(a) Apart from oral assertions, there is no tangible material
to prove merger
37.
If a mere reference to the numerical strength of more than
2/3rd declaring that they have agreed to merger of the original political
party will not suffice in the light of challenge to it and that it would still
be necessary for a Speaker to decide that there had been such merger,
the next issue that would fall for consideration is the factual basis which
was brought before the Speaker that could test the correctness of the
decision. We have already set forth the limit of interference that is
possible through a judicial review of the decision of the Speaker. It may
not be the appreciation of facts brought on material before it that
would be a subject of review. If the Speaker did not find the need to
elicit information from the President of the party legislators about the
truth of their plea by way of corroboration, I would expect that the
Speaker had some other material on the basis of which he could have
acted that there was a merger of the original political party. In such a
case the decision could pass the test. At an enquiry brought under para
6, there was surely an occasion to bring strength to the decision that
had already been taken. It is at that time that the respondents had yet
another occasion to prove what they were claiming that there had been
a merger of the original political party. If the argument that the merger
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agreed to by them as members of the legislative party will not by itself
be sufficient to prove the merger of the original political party by the
way we have interpreted para 4(2) in the light of challenge under para
6, then it would be essential to examine whether the documents
produced by respondent Nos.3 to 6 were sufficient for the Speaker to
come to the decision that he did originally on 09.11.2009 and for the
affirmation of such a decision through the impugned order. We have
already extracted the entire portion of the letter and as well as the
minutes. They make no reference to any decision of the original political
party and the letter merely expresses that members of legislative party
had considered and decided on the merger of the original political
party. We have pointed out to the insufficiency of merely the members
of the legislative party deciding that the original political party has
merged to fulfill the requirement and save the members from
disqualification. There ought to have been a decision of the original
political party that merged with the Congress party.
(b) Improbability of meeting of delegates on 8.9.2014, as
pointed out by the petitioner
38.
The learned Senior Counsel appearing on behalf of the
petitioner pointed out that at no point of time at the previous
proceeding was any reference to any other meeting of the original
political party for its decision to merge with Congress. It was for the
first time when a reply was filed in CWP No.14190 of 2010 that a case of
meeting of the delegates of the original political party was brought in
the replies of respondents No.3 to 7. It was stated in paragraph 9 that a
meeting was held on 08.11.2009 of the HJC (BL) where it was decided
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by overwhelming majority by the primary members of the party to
merge the same with the INC. Both the parties stood merged on
08.11.2009 itself. In a separate meeting on the same day, 5 members of
HJC (BL) endorsed the decision taken by the primary members of the
party. The learned Senior Counsel would argue on the following
fallibilities/improbabilities to the plea of merger: (i) that even in the
reply, there was no reference made as to the place where such meeting
took place; (ii) there was no reference to any resolution as having been
passed; (iii) there was again no reference about who called the meeting
and whether notice had been given to all the members; (iv) when
minutes of the meeting had been drawn up for the legislative party that
the members of the legislative party had considered and decided merger
of original political party, there was no resolution of the original
political party for the merger of the party; (v) there were no records
such as notices or video or audio recordings of any of the proceedings of
the original political party; (vi) there was no representation even to the
Election Commission to inform about the merger till 18.01.2013, that is,
till after the decision of the Speaker that is impugned in this writ
petition; (vii) HJC (BL) had literally contested from 88 constituencies
and the delegates were said to have been present and some of whom
examined as witnesses before this Court were all persons drawn from
that five constituencies that respondent Nos.3 to 7 represented. Not one
single delegate of any other constituency had been examined; (viii) each
one of the witnesses who was examined was directly confronted with
the questions that the meeting did not take place and there were not
themselves delegates of the political party to which they were no more
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than mere denials when they ought to have had documentary proof of
their contentions if the assertions were true; (ix) stereo typed affidavits
had been prepared reproducing verbatim in a typeset that filled up
merely the names of the respective deponents.
(c) Conduct of the petitioner at the time of enquiry, as
pointed out by the respondents
39.
All the respondents would point out to the conduct of the
petitioner in the course of cross-examination as a person not willing to
speak truth and who was merely giving evasive answers; of a person who
was not willing to admit the position of the father in the party; of his
unwillingness to state why he did not file the minutes of the first
meeting held on 23.10.2009; refusal to give the agenda for the meeting;
unwillingness to state the content of the meeting that he had with the
Chief Minister before the vote of confidence and refusal to give direct
question whether his father was minister in the Government of Ch. Devi
Lal from 1977 to 1979 and 1979 to 1986 when he responded that he did
not know or as simple as a question as where he stayed whenever he
came for holiday at Chandigarh. The questions and answers, I must
observe were equally base; as frivolous as bordering on being ridiculous
and at once, irrelevant. If a person was teased by asking questions
whether his father Sh. Bhajan Lal was a Minister or where he spent his
holidays at Chandigarh, it must be merely discarded as inconsequential
and I am not prepared to weigh the character of evidence by the
irreverent responses he gave. The responses were a reflection on the
meaningless quality of some of the questions that were addressed to
him.
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Respondents duty to adduce positive evidence of
merger – Principles of burden of proof
If the key evidence of merger of the original political party
has to be put to test, the necessary question would be who should take
the burden of proof of establishing such a disputed question of fact.
Since the decision had been taken and this was put to challenge in
paragraph 6, would the petitioner require to discharge the burden of
proof that there was no such meeting or whether the burden would still
be on the person who had asserted that there had been a merger of the
original political party. I would extend the normal rule of evidence in a
situation like this, where the persons who are elected on a particular
party ticket, namely, HJC (BL) were admittedly not any longer in that
party. Constitution provides for a disqualification for defection and if
such a disqualification was not to be applied, they were required to
prove a particular fact that will enable them to apply for such an
exceptional situation. The exceptional situation must be that there was
a merger of the original political party. Section 101 to 104 of the Indian
Evidence Act, 1872 bring out among other provisions, the burden of
proof. Section 101 declares that whoever desires any Court to give a
judgment as to any legal right or liability dependent on the existence of
facts which he asserts, must prove that those facts exist. In this case, a
decision that there had been a merger alone enables a person to get
over the disqualification. As far as the petitioner was concerned, it was
enough that respondent Nos.3 to 7 did not admittedly continue in the
party which elected them. Section 102 is a corollary to Section 101
which says that burden of proof in a suit or proceeding lies on that
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person who would fail if no evidence at all were given on either side. If
the petitioner's case was to be rested that the respondents had moved
over to yet another party which was an admitted fact and therefore, if
no evidence had been given, the only way that disqualification would
not operate was to say that there had been a merger of such political
party which was the case propounded by respondent Nos.3 to 7. Section
103 also is an illustration of how the burden of proof to a particular fact
would require to be established when it says that the proof of any
particular fact lies on that person who wishes the Court to believe in its
existence, unless it is provided by law that the proof of that fact shall
lie on any particular person. This is also elicited in the judgment in
Rajendra Singh Rana's case which we have referred to above. While
adverting to issue of a claim for a split in the original political party in
addition to showing that 1/3rd member of the legislative party have
come out of the party, it is necessary to prove at least prima facie that
such a split had taken place. The Court observed in para 37 that those
who left the party will have prima facie to show by relevant materials
that there has been a split in the original party. Considering the case
that 37 MLAs staked a claim before the Speaker, it was required to show
that 1/3rd of the members of the legislative party have come out and a
plea that they were not required to produce any material in support of
the split could not be accepted. The Court was actually discarding an
argument that “the legislators were wearing two hats one as member of
the original political party and the other as member of the legislative
assembly and it would be sufficient to show that 1/3rd of the legislators
have formed a separate group to infer a split. The paragraph spoke of
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two requirements; one, a split in the original party and two, group
comprising of 1/3rd of the legislators separating from the legislative
party. By acceding to the two hats theory, one of the limbs of para 3
would be made redundant or otiose. An interpretation of that nature has
to be avoided to that extent if possible. Such an interpretation is also
not warranted in the context.” This is to explain that the deeming
provision of what para 4(2) provides that 2/3rd members of the
legislative party would lead to necessary inference of merger of the
original political party merely answers one limb, namely, that 2/3rd
members of the legislative party had agreed to the merger of the
original political party. Other limb is the proof that the original political
party actually merged. Both these aspects would require to be proved.
It is this latter aspect that calls for a proof at the instance of the
persons who wanted to take the benefit of such merger, viz., the
benefit being not disqualified by the fact that they were shifting
loyalties to another party from the party which sent them to the
assembly.
3. Finding: The burden of proof of merger cast on the
respondents not established. Constitutional mandate
breached.
41.
In this case, there has been absolutely no proof of merger
of the original political party. If I say that the decision of the Speaker in
the first instance on 09.11.2009 was against constitutional mandate, I
say so because the letter written by the legislators on 09.11.2009 and
the decision taken on the same day were literally on no evidence
produced. The evidence was that more than 2/3rd members of the
legislative party had decided to merge. It offered no proof of the fact
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that the original political party had actually merged. The Speaker who
had received the letter from the Congress Party that HJC (BL) had
merged with them did not think it necessary surprisingly to look for a
similar letter even from the leader of that political party which had
merged. The decision in Rajinder Singh Rana's case (supra) is an
authority for the position that Paras 4 and 6 are part of a single process
and the decision that is taken under para 4 must stand test of enquiry
when a contest is brought by any person in para 6. All that the person
who sought for disqualification was entitled to say was the bare
minimum, that there had been a defection from the original political
party. If the slur of defection was to be effaced, it could be done only
when there was a merger of the party itself. The only occasion when in
spite of a claim for merger, the identity of the original party could
subsist would be instances where a person who was elected from
original political party was not prepared to accept the merger and
continued to function as a separate entity. This is protected under Para
4(1)(b). In every other situation, the members who claimed a merger
would require to show that as a matter of fact, there has been such a
merger. The Speaker had no material at all to take such a decision. He
had abdicated the constitutional trust in having to render a decision
which was sacrosanct. No other authority could have adjudged on the
plea of merger when a challenge was brought before him. The
Constitution that places the Speaker as the singular authority casts an
additional burden which the regular Tribunals or Courts seldom
confront. His consideration ought to have been whether there was a
merger; that such merger was a merger of original political party and
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the member of legislature party agreed to such merger. If 2/3rd of such
members agreed, it was deemed to be such merger. If less than 2/3rd,
the benefit of deeming provision also would not operate. The
requirement of 2/3rd of the members of the legislative party to accord
to the merger of the original political party would deem such merger
but that by itself would never have been sufficient. It is possible that
the majority of the original political party actually took a decision not to
merge but 2/3rd members of the legislative party deciding to merge.
The deeming provision will lose its value if there was a mismatch
between the decision of the original political party and the legislature
party.
42.
It is not as if the respondents do not understand this simple
logic. There would have been no attempt even before the Speaker in
trying to bring any evidence of various party members before him to say
that there had been a meeting of the political party on 08.11.2009, if it
was not for a requirement that the original political must have taken a
decision to merge. It was the congruence of their decision with the
decision of the original political party through an agreement to such
merger that makes possible for the defecting members not to incur
disqualification. The words expressed are that 2/3rd of the members of
the legislative party have agreed to such merger. Such merger must be a
decision elsewhere namely of a decision of the original political party,
apart from their own decision at the legislative party level.
43.
The Speaker's decisions at the first and at the second level
are not vitiated merely by error in reasoning. The error is egregious.
Significantly, in this case, the Speaker has not dealt with the evidence
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of any of the witnesses brought by the respondents in an attempt to
prove that there was a meeting of the delegates of the party on
08.11.2009. All the affidavits were stereo typed and the recitals were
the same setting out the alleged fact of their presence on 08.11.2009.
The Speaker has made a sweeping observation that all the witnesses
have spoken about the merger and nothing was elicited in the crossexamination.
The expressions of how the Speaker has dealt with 68
witnesses are contained in one single sentence “there was no vital
discrepancy in the dispositions and stood the test of rigorous crossexamination of Mr. Satya Pal Jain, Senior Counsel for Mr. Bishnoi. The
statements were consistent and worth of credence (worthy of
credence).
44.
The reasoning adopted by the Speaker for coming to the
decision is wholly against the mandate of the Constitution requiring the
Speaker's satisfaction that 2/3rd members of the original political party
merged with another party. The inference has been with reference to
Para 4(2) in that more than 2/3rd of the legislature party has agreed to
the merger. He has observed that there has to be a presumption to such
a merger without looking for any evidence of whether the Speaker had
before him particulars of the so-called decision of the original political
party to merge. Adverting to the decision on the fact of whether there
was a meeting on 08.11.2009, the Speaker looked to the evidence of Sh.
Kuldeep Bishnoi for an appraisal of whether his contention that the
meeting did not take place was true or not. The consideration was that
Kuldeep Bishnoi was admittedly not at the meeting and he could not
have first hand knowledge regarding what transpired at Karnal. He has
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again reasoned that no evidence of witness was produced by Kuldeep
Bishnoi that there was no such meeting held at Karnal. The mistake was
in completely reversing the burden of proof of what we have extracted
elsewhere, that it was essentially on the persons who were contending
that there was a meeting on 08.11.2009 and that the meeting resulted
in a decision to merge. By inverting the burden of proof casting the
burden on the petitioner, the Speaker committed a serious error in
raising wrong questions to be answered by the petitioner and the
absence of such answers as proof of the fact that the meeting did take
place. It is not the failure to prove the absence of meeting that could
result in a proper finding.
The question to have been raised was
whether there was a meeting on 08.11.2009 and there was sufficient
proof for such an assertion. It was proof of a positive assertion that
would bring home the proper result which in this case the Speaker failed
to do. The Speaker has paraphrased the following points as establishing
the meeting on 08.11.2009:(i) 75 delegates-cum-primary members out of 108 had
decided regarding the merger.
(ii) No evidence had been produced by the petitioner that
persons who were examined before him were not genuine
members.
(iii) It was difficult to disbelieve the consistent testimony of
68 persons who claimed that there was a merger.
(iv) The predecessor-in-office who originally gave a decision
on 09.11.2009 had decided the merger of two political
parties.
45.
The order accepting the merger on 9.11.2009 was hasty,
sans basis and without undertaking the minimum of collection of data
regarding the decision of the original political party. The second level
decision through the order dated 13.1.2013
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was on a wrong
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understanding on the purport of para 4(2), oversimplification of
believing the most artificial parrot like versions of persons drawn only
from the constituencies of the defecting members and placing the
burden on the petitioner to prove that the merger did not take place,
factors leading to the illegality of the ultimate result. There was simply
no objective consideration of every one of the vital parameters that
could support a sound reasoning. Annexures P-1 and P-2 had weightless
quality to lend such proof. The decisions in Kihoto Hollohan's case,
Jagjit Singh's case and Rajendra Singh Rana's case surely allow for a
judicial review in respect of a decision of the Speaker who acts as a
Tribunal to see whether decision of the Speaker conforms to the
mandate of the Constitution, which it does not.
4. Findings: (i) Malafides against the Speaker not
established; (ii) no defect in pleadings
46.
That leaves us with last segment which is built on mala fides
of the Speaker in his decision and other minor issues. The learned Senior
Counsel appearing on behalf of the petitioner would point out to the
fact that Speaker had delayed decision for more than three years and he
was not even prepared to abide by the undertaking which he had given
before the Division bench. The Division Bench has itself made some
observations about how the Speaker spoke through Solicitor General
offering to set down a schedule for hearing and for disposal but resiled
from them at the next hearing. The application under paragraph 6 was
brought in December, 2009. The decision was rendered in January, 2013
that is more than three years after the filing of the petition. In
Mayawati Vs. Markandeya Chand and others (1998) 7 SCC 517, the
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Supreme Court ruled that it was absolutely necessary for every Speaker
to fix a time schedule as per the relevant Rules for disposal of the
disqualification proceedings. The Supreme Court observed that all such
proceedings must be concluded and order could be passed within a
period of three weeks from the date on which the petitions have taken
on file. In this case the Speaker had taken more than three years. But
the same judgment also states that the order passed even after a delay
cannot be taken as perverse. There are several explanations given by
the counsel appearing on behalf of the Speaker as to why the decision
could not be taken: that the Speaker had to travel overseas; that the
mother of the Speaker had died; that the father of the Speaker took ill;
the daughter of the Speaker was getting married; three Speakers have
been changed one after another. I have not enough materials to affirm
what the petitioner is urging for, that the Speaker was spirited by any
mala fide in the decision that he ultimately took. The Senior Counsel for
the petitioner would say that the Speaker did not give up his party
affiliation although Tenth Schedule itself protected the Speaker if he
resigns from the original political party after his election to the office of
Speaker under para 5. The simple answer to the ground raised is that
there is no compulsion under the Constitution for the Speaker to resign
from the party after taking over as Speaker. Para 5 of the Tenth
Schedule provides for an option to the Speaker to resign. This itself has
been considered in Kihoto Hollohan Vs. Zachillhu 1992 Supp (2) SCC
651. The other ground urged by the petitioner is that the Speaker had
disallowed questions which would expose the hollowness of the
respondents' case and he intervened and asked leading questions. No
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details of the leading questions had been set forth nor are the details
clearly set forth as to what was the important question that had been
disallowed. Indeed, if there was any particular procedural wrong, the
immunity of the Speaker's decision will itself protect such wrong from
judicial scrutiny and that cannot afford a ground for expression of mala
fides against the Speaker. The decision that is brought for challenge
before this Court is the ultimate decision passed under an adjudication
in para 6 that upholds the decision already taken on 09.11.2009. The
person that passed an order on 09.11.2009 is not the person who
ultimately passed the order upholding the decision.
With the
discontinuity of the persons who held the office of Speaker, I cannot
find that one was supporting another for the mala fide cause. It is
brought out in evidence that the 2nd respondent before this court took
over as Speaker only during the pendency of the LPA on 02.05.2011. The
operation of the Division Bench order directing disposal had been stayed
by the Supreme Court on 04.01.2012 and when the matter was decided
finally on 28.09.2012, the Supreme Court had fixed a time of four
months that fell on 27.01.2013. The order had been passed on
13.01.2013 well within the time prescribed by the Court.
47.
Some video recordings burnt on a CD have also been brought
in Court to state that the Speaker had given an interview to the press
soon after the decision where the Speaker has reported to have claimed
that he is a member of the Congress at all times and this showed that
his party affiliation gained above the post of impartiality as a Speaker.
There is a contest on the electronic document produced by the 2nd
respondent and the learned Senior Counsel appearing on behalf of the
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2nd respondent has relied on decisions of the Supreme Court in R.M.
Malkhani Vs. State of Maharashtra AIR 1973 SC 157, Ram Singh and
others Vs. Col. Ram Singh AIR 1986 SC 3 and R.K. Anand Vs.
Registrar, Delhi High Court in Crl. Appeal No.1393/2008 dated
29.07.2009, all of which have laid down the law about how an electronic
document has to be received. In the face of the contest, no attempt was
made by the petitioner to vouch for the authenticity of the documents. I
am not prepared to rely on the matters that the documents are as such
to contend making reference to the alleged partial status of the Speaker
to his political party.
48.
Sh. S.P. Jain, Senior Advocate also argues that out of 5
defecting members, 4 had been made ministers under the Congress
regime. That probably brings to truth what the bargain was to defect
but will not give room for inference of mala fides for the Speaker's
decision.
Again, the contention was that the petitioner resigned his
Assembly seat and contested Parliamentary election. In the very same
constituency, the petitioner's wife contested on HJC (BL) ticket and won
the election and occupied the seat in the Assembly as a HJC (BL) party
member, a party, in Speaker's decision had merged with INC. It was
indeed a paradoxical situation that the House witnessed an alleged
merged party that must have ceased to exist was very much present in
the very same House. This contradiction is possibly only in one situation
i.e. when the original political party has merged with another party but
the legislature party member did not accept the merger and chooses to
remain in the party on whose ticket he contested and won the election.
In any other situation, the presence of the original political party
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member in the House is not possible. If it happens, it is itself a sure
pointer to the wrong decision of the Speaker. A wrong decision of the
Speaker, surely it was, as we have found, but not a mala fide one.
49.
There are certain other peripheral issues which have been
brought at the time of arguments. There is a contention by the Senior
Counsel appearing on behalf of the 2nd respondent that the petition is
bad in that the verification made does not conform to the requirements
of the High Court rules. The Writ Jurisdiction (Punjab and Haryana)
Rules, 1976 requires that the content of petition shall be accompanied
by an affidavit in support thereof under Part II Chapter IV Vol. 5 Rule 8.
The affidavit must conclude with a jurat of the declarant's own
knowledge and use the expression as per Rule 9 of Chapter II Part B only
facts within his own knowledge and distinguish them from facts which
are not within his knowledge, by using the expression “I am informed
and if such may be the case, should add “and verily believe it to be
true.” In this case, the verification is to the effect that ‘contents of
paras 1 to 42 are true to the best of my knowledge and belief as well as
the official record. Legal submission are based upon the legal advice
received, which is believed to be correct.’ There are at all times some
slackness in mentioning the specific paragraphs which are within direct
knowledge and paragraphs which are not within the direct knowledge
and the practice is to bring them all under one category by an
affirmation that the contents brought out are all to the best of
knowledge and belief. There is nothing seriously factually wrong about
any of the contentions raised in the writ petition and the essential
paragraphs are appraisal of legal infirmities attached to the order of the
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Speaker. There is again nothing particularly within the personal
knowledge of the petitioner that have a bearing to the matters asserted
in the writ petition. In Dr. Mahachandra Prasade Singh Vs. Chairman
Bihar Legislature Council (2004) 8 SCC 747, it was held that even the
failure to comply with the rules of pleadings regarding the manner of
verification as laid down under CPC, the Supreme Court held that “there
is indeed no lis between the person moving the petition and the member
of the House who is alleged to have incurred a disqualification. It is not
an adversarial kind of litigation where he may be required to lead
evidence.... On account of non-filing of an affidavit as required under
Order 6 Rule 15(4) CPC, the petition would not be rendered invalid nor
would the assumption of jurisdiction by the Chairman on its basis be
adversely affected or rendered bad in any manner. I will not hold any
serious lapse as having been made which could prejudice the
respondents. I find no reason to uphold this objection taken by the
Speaker in this regard.
V.
Disposition
50.
In the light of what has been dealt with in detail, I hold the
impugned order rendered on 13.01.2013 by the Speaker to be bad in law
and hence set aside. The consequences will be that the original decision
taken by the Speaker on 09.11.2009 admitting the plea of merger of
respondent Nos.3 to 6 and the subsequent order accepting the plea of
merger by respondent No.7 on 10.11.2009 are also not valid.
Respondents No.3 to 7 invite the disqualification of being members of
the House on the ground of defection under Para 2 of Schedule X to the
Constitution.
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They are also disqualified to hold any remunerative
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political post for duration of the period commencing from the respective
dates of voluntarily giving up their membership from the party viz.
09.11.2009 for respondent Nos.3 to 6 and from 10.11.2009 for
respondent No.7, as provided under Article 361B of the Constitution.
However, any actions performed or decisions taken, while already
occupying
such
remunerative
political
post
till
the
time
of
pronouncement of this judgment shall not be rendered invalid. The writ
petition is allowed. There shall be, however, no direction as to costs.
(K. KANNAN)
JUDGE
October 09, 2014
Pankaj*
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