# DR. MAHACHANDRA PRASAD SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND ORS

- **Citation:** [2004] Supp. 5 S.C.R. 692
- **Court:** Supreme Court of India
- **Decided:** 2004-10-27
- **Bench:** R.C. Lahoti, G.P. Mathur, ?.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-mahachandra-prasad-singh-v-chairman-bihar-legislative-council-and-ors-20236
- **Pages:** 23

## Headnote

Constitution of India, 1950-Tenth Schedule paragraph 2(J)(a) and
Article 191 (2):
Bihar legislative Council Members (Disqualification on ground of
Defection) Rules, 1994-Rules 6 and 7:
Disqualification on the ground of defection-Member of legislative
Council as candidate of one party-Subsequently, contesting parliamentary
D election as candidate of another party/independent candidate-Petition under
the Rules-Disqualification from the membership of House by Chairman of
the Council as having voluntarily given up membership of previous partyCopy of petition given to the member-Opportunity of personal hearing
given but not availed by the member-Writ Petition-Plea of non-compliance
of Rules and violation of principle of natural justice-Held: Member incurred
E disqualification under paragraph 2(/)(a) as he voluntarily gave up
membership of his previous party-The Rules being directory in nature and
being in the domain of procedure are intended to facilitate holding of
inquiry and not to frustrate or obstruct the same by introduction of
technicalities-Rules, being subordinate legislation and delegated legislation
cannot have the effect of curtailing the content and scope of substantive
F provision i.e. Tenth Schedule-Hence petition cannot be rendered invalid
affecting jurisdiction of Chairman on the ground of non-compliance of RulesIn the facts of the case principle of natural justice not violated-Administrative
law-Delegated legislation.
G
Petitioner was elected as Member of Legislative Council (MLC) as a
candidate of Congress party. Thereafter he contested parliamentary election
as independent candidate. Secretary of the Legislative Council sent a letter
to the petitioner that he had received information that he being a member of
Congress party in the Council had contested parliamentary election as
independent candidate and sought clarification from him. Thereafter a petition
fl
692
-
-
M.P. SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL
693
was given to the Chairman by a member of Legislative Council to the effect A
that in view of the above given facts petitioner had become disqualified for
being a member of the House. The Secretary asked the petitioner to give reply
to the petition. Copy of the petition was enclosed therewith. The Secretary
twice afforded him opportunity for personal hearing, but the petitioner did
not avail it. Chairman of the Council, thereafter passed the impugned B
judgment holding that the petitioner having contested parliamentary election
as independent candidate being a member of the Legislative Council as a
candidate of Congress party, had voluntarily given up his membership of the
Congress party and therefore he was disqualified for being a member of the
House in view of paragraph 2(1 )(a) of the Tenth Schedule r/w Article 191 (2)
of the Constitution of India and the seat held by him in the House became C
vacant
Petitioner filed Writ Petition under Article 32 of the Constitution. He
contended that in absence of compliance of Rules 6 and 7 of Bihar Legislative
Council Members (Disqualification on Ground of Defection) Rules, 1994, the
assumption of jurisdiction by the Chairman in initiating the proceedings was D
illegal; that there was violation of principles of natural justice as the material
relied upon by the Chairman was not disclosed to the petitioner nor a proper
opportunity of personal hearing was afforded to him; and that petitioner had
not voluntarily given up membership of political party by contesting the
parliamentary election as an independent candidate and, therefore, he had not E
incurred any disqualification within the meaning of Paragraph 2(l)(a) of the
Tenth Schedule.
The other Writ Petitioner, a member of Legislative Council elected as
a candidate of Congress Party had contested Parliamentary election as a
candidate ofSamajwadi Party. Petition for disqualification was filed and after F
giving him copy of petition and opportunity for personal hearing, Chairman
of the Legislative Council he

## Text

_Characters 0–39,939 of 58,523. This is a partial read: ask again with offset=39939 for what follows._

A
B
c
DR. MAHACHANDRA PRASAD SINGH
v.
CHAIRMAN, BIHAR LEGISLATIVE COUNCIL AND ORS.
OCTOBER 27, 2004
[R.C. LAHOTI, CJ., G.P. MATHUR AND ?.K. BALASUBRAMANYAN, JJ.]
Constitution of India, 1950-Tenth Schedule paragraph 2(J)(a) and
Article 191 (2):
Bihar legislative Council Members (Disqualification on ground of
Defection) Rules, 1994-Rules 6 and 7:
Disqualification on the ground of defection-Member of legislative
Council as candidate of one party-Subsequently, contesting parliamentary
D election as candidate of another party/independent candidate-Petition under
the Rules-Disqualification from the membership of House by Chairman of
the Council as having voluntarily given up membership of previous partyCopy of petition given to the member-Opportunity of personal hearing
given but not availed by the member-Writ Petition-Plea of non-compliance
of Rules and violation of principle of natural justice-Held: Member incurred
E disqualification under paragraph 2(/)(a) as he voluntarily gave up
membership of his previous party-The Rules being directory in nature and
being in the domain of procedure are intended to facilitate holding of
inquiry and not to frustrate or obstruct the same by introduction of
technicalities-Rules, being subordinate legislation and delegated legislation
cannot have the effect of curtailing the content and scope of substantive
F provision i.e. Tenth Schedule-Hence petition cannot be rendered invalid
affecting jurisdiction of Chairman on the ground of non-compliance of RulesIn the facts of the case principle of natural justice not violated-Administrative
law-Delegated legislation.
G
Petitioner was elected as Member of Legislative Council (MLC) as a
candidate of Congress party. Thereafter he contested parliamentary election
as independent candidate. Secretary of the Legislative Council sent a letter
to the petitioner that he had received information that he being a member of
Congress party in the Council had contested parliamentary election as
independent candidate and sought clarification from him. Thereafter a petition
fl
692
-
-
M.P. SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL
693
was given to the Chairman by a member of Legislative Council to the effect A
that in view of the above given facts petitioner had become disqualified for
being a member of the House. The Secretary asked the petitioner to give reply
to the petition. Copy of the petition was enclosed therewith. The Secretary
twice afforded him opportunity for personal hearing, but the petitioner did
not avail it. Chairman of the Council, thereafter passed the impugned B
judgment holding that the petitioner having contested parliamentary election
as independent candidate being a member of the Legislative Council as a
candidate of Congress party, had voluntarily given up his membership of the
Congress party and therefore he was disqualified for being a member of the
House in view of paragraph 2(1 )(a) of the Tenth Schedule r/w Article 191 (2)
of the Constitution of India and the seat held by him in the House became C
vacant
Petitioner filed Writ Petition under Article 32 of the Constitution. He
contended that in absence of compliance of Rules 6 and 7 of Bihar Legislative
Council Members (Disqualification on Ground of Defection) Rules, 1994, the
assumption of jurisdiction by the Chairman in initiating the proceedings was D
illegal; that there was violation of principles of natural justice as the material
relied upon by the Chairman was not disclosed to the petitioner nor a proper
opportunity of personal hearing was afforded to him; and that petitioner had
not voluntarily given up membership of political party by contesting the
parliamentary election as an independent candidate and, therefore, he had not E
incurred any disqualification within the meaning of Paragraph 2(l)(a) of the
Tenth Schedule.
The other Writ Petitioner, a member of Legislative Council elected as
a candidate of Congress Party had contested Parliamentary election as a
candidate ofSamajwadi Party. Petition for disqualification was filed and after F
giving him copy of petition and opportunity for personal hearing, Chairman
of the Legislative Council held him disqualified for being member of the House
under Paragraph 2(l)(a) of the Tenth Schedule r/w Article 191(2) of the
Constitution.
Dismissing the Writ Petitions, the Court
HELD: I.I. The petitioner has incurred the disqualification under
Paragraph 2(l)(a) of Tenth Schedule of the Constitution of India and the
decision of the Chairman is perfectly correct. In view of explanation (a)
appended to sub-paragraph (1) of paragraph 2 of the Tenth Schedule, the
G
H
694
SUPREME COURT REPORTS [2004) SUPP. 5 S.C.R.
A petitioner shall be deemed to belong to Indian National Congress Party by
which he was set up as a candidate for contesting the election for member of
Legislative Council in the year 1998. By contesting the parliamentary election
as an independent candidate, he voluntarily gave up the membership of the
Congress Party. Even in the absence of a formal resignation from membership
an inference can be drawn from the conduct of a member that he has
B voluntarily given up his membership of the political party to which he belongs.
(704-A-G]
1.2. Bihar Legislative Council Members (Disqualification on Ground
of Defection) Rules, 1994 being delegated legislation are subject to certain
C fundamental factors. Underlying the concept of delegated legislation is the
basic principle that the legislature delegates because it cannot directly exert
its will in every detail. All it can in practice do is to lay down the outline. This
means that the intention of the legislature, as indicated in the outline (that is
the enabling Act), must be the ?Jrime guide to the meaning of delegated
legislation and the extent of the power to make it. The true extent of the power
D governs the legal meaning of the delegated legislation. The delegate is not
intended to travel wider than the object of the legislature; The delegate's
function is to serve and promote that object, while at all times remaining true
to it. That is the rule of primary intention. Power delegated by an enactment
does not enable the Authority by regulations to extend the scope or general
E operation of the enactment but is strictly ancillary. It will authorize the
provision of subsidiary means of carrying into effect what is enacted in the
statute itself and will cover what is incidental to the execution of its specific
provision. But such a power will not support attempts to widen the purposes
of the Act, to add new and different means of carrying them out or to depart
from or vary its ends. The aforesaid principle will apply with greater rigour
F where rules have been framed in exercise of power conferred by a
constitutional provision. No rules can be framed which have the effect of either
enlarging or restricting the content and amplitude of the relevant
constitutional provisions. Similarly, the rules should be interpreted consistent
with the aforesaid principle. (707-C-G I
G
1.3. The purpose and object of the Rules is to facilitate the job of the
Chairman in discharging his duties and responsibilities conferred upon him
by paragraph 6, namely, for resolving any dispute as to whether a member of
the House has become subject to disqualification under the Tenth Schedule.
The Rules being in the domain of procedure, are intended to facilitate the
H holding of inquiry and not to frustrate or obstruct the same by introduction
M.P. SINGH v. CHAIRMAN, BIHAR LEG ISLA TIVECOUNCIL
695
of innumerable technicalities. Being subordinate legislation, the Rules cannot A
make any provision which may have the effect of curtailing the content and
scope of the substantive provision, namely the Tenth Schedule. There is no
provision in the Tenth schedule to the effect that until a petition which is
signed and verified in the manner laid down in the CPC for verification of
pleadings is made to the Chairman or the Speaker of the House, he will not B
get the jurisdiction to give a decision as to whether a member of the House
has become subject to disqualification under the Schedule. [709-B-E]
1.4. There is no /is 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 oflitigation where he may be required to lead evidence. C
Even if he withdraws the petition it wili make no difference as the duty is cast
upon the Chairman or the Speaker to carry out the mandate of the
constitutional provision, viz. the Tenth Schedule. The object of Rule 6 is that
frivolous petitions making false allegations may not be filed in order to cause
harassment. It is not possible to give strict interpretation to Rules 6 and 7
otherwise the very object of the Constitution (Fifty-second Amendment) Act D
by which Tenth Schedule was added would be defeated. A defaulting legislator,
who has otherwise incurred the disqualification under paragraph 2, would be
able to get away by taking the advantage of even a slight or insignificant error
in the petition and thereby asking the Chairman to dismiss the petition under
sub-rule (2) of Rule 7. The validity of the Rules can be sustained only if they
are held to be directory in nature as otherwise, on strict interpretation, they
would be rendered ultra vires. (709-F-G; 710-AJ
1.5. Provisions of Rules 6 and 7 are directory in nature and on account
E
of non-filing of an affidavit as required by sub-rule ( 4) of Order VI Rule 15
CPC, the petition would not be rendered invalid nor the assumption of F
jurisdiction by the Chairman on its basis would be adversely effected or
rendered bad in any manner. [710-E-FJ
Ravi S. Naik v. Union of India, [1994) Supp. 2 SCC 641, relied on.
1.6. The Chairman of the Bihar Legislative Council had afforded ample G
opportunity of personal hearing to the petitioner but he himself did not avail
of it. Regarding the complaint of non-supply of the copy of the letter sent by
leader of Indian National Congress in Bihar Legislative Council, whereby he
had informed that the petitioner had ceased to be a member of Indian National
Congress for violating the party discipline is concerned, the only relevant
fact stated therein is that the petitioner had been elected as a member of the H
696
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A Bihar Legislative Council on a Congress ticket but he had contested the
parliamentary election as an independent candidate. These facts have never
been disputed by the petitioner in his replies, which he submitted before the
Chairman of the Legislative Council and have also been admitted in the present
Writ Petition. Therefore, the non-supply of copy of the letter of the leader of
the Congress Legislative Party has no bearing at all as no prejudice can be
B said to have been caused to the petitioner and consequently in the facts of tlae
present case, no principle of natural justice can be said to have been violated.
[712-E-GJ
2. In the second Writ Petition, petitioner had admitted that he had been
C elected as member of the Legislative Council in the year 1998 as a candidate
of the Indian National Congress party and that he filed his nomination papers
for contesting the parliamentary election held in May 2004 as a candidate of
Samajwadi Party. This factual position was not disputed by the petitioner in
the replies given by him to the Chairman of the House. In such circumstances,
there cannot be even a slightest doubt that the petitioner has volunt~rily given
D up his membership of the Indian National Congress party. No exception can,
therefore, be taken to the decision taken by the Chairman of the House that
the petitioner has incurred the disqualification for being a member of the
House under paragraph 2(1)(a) of the Tenth S~hedule and Article 191(2) of
the Constitution and the seat held by him had fallen vacant. [714-B-DJ
E
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 322 of2004.
(Under Article 32 of the Constitution of India.)
WITH
W.P. (C) No. 370 of2004.
F
P.S. Mishra, S.Chandra Shekhar, Upendra Mishra, Tathagat H. Vardhan,
G
Amitesh Chandra Mishra, Dhruv Kr. Jha, Ms. Renuka Sharma and Ms. T.
Swarupa Reddy with him' for the Petitioner.
Dipankar P. Gupta, Navin Prakash, Anurag Sharma and Rituraj Biswas
with him for the Respondent.
The Judgment of the Court was delivered by
G. P. MATHUR, J. 1. This petition, under Article 32 of the Constitution,
has been filed for quashing the order dated 26th June, 2004 of Chairman of
Bihar Legislative Council holding that the petitioner is disqualified for being
H a member of the House under paragraph 2(1 )(a) of the Tenth Schedule read
-
M.P. SINGH v. CHAIRMAN, BI HAR LEGISLA TIVECOUNCIL[G.P. MA THUR,J.]
697
with Article 191(2) of the Constitution and consequently the seat held by him A
in the Bihar Legislative Council had fallen vacant from the said date.
2.
The petitioner was elected as a member of the Bihar Legislative
Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian
National Congress. The notification for holding elections to Fourteenth Lok
Sabha was issued in March, 200 I. The petitioner contested the said election B
from Maharajganj Parliamentary Constituency as an independent candiJate.
Shri Salman Rageev, a member of Bihar Legislative Council, sent a petition to
the Chairman of the Legislative Council on 10th June, 2004 stating, inter alia,
that the petitioner, who was a member of the Congress Party, had contested
the parliamentary election from Maharajganj Constituency as an independent C
candidate and consequently in view of the provisions of the Tenth-Schedule
to the Constitution he had become disqualified for being a member of the
House. The petitioner was asked to submit his explanation vide letter dated
12th June, 2004 of the Secretary of the Council.
After considering the
explanation offered by the petitioner, the Chairman of the Legislative Council
passed the impugned order dated 26th June, 2004 holding that the petitioner D
had contested the election for Bihar Legislative Council in the year 1998 as
a candidate of the Congress Party and was a member of the said political party
and that he had contested the Lok Sabha Election, 2004, as an independent
candidate, and thus he had voluntarily given up his membership of the
Congress party and, therefore, he was disqualified for being a member of the E
House in view of paragraph 2(l)(a) of the Tenth Schedule read with Article
191 (2) of the Constitution and the seat held by him in the House has become
vacant.
3.
Shri P.S. Mishra, learned senior counsel, has raised three contentions
in assailing the order dated 26th June, 2004 passed by the Chairman, Bihar F
Legislative Council. The first submission is that in absence of compliance of
Rules 6 and 7 of the Bihar Legislative Council Members (Disqualification on
ground of Defection) Rules, 1994, the assumption of jurisdiction by the
Chairman in initiating the proceedings, whereunder the petitioner was held to
be disqualified for being a member of the House, was illegal. The second
submission is that there was violation of principles of natural justice as the G
material relied upon by the Chairman was not disclosed to the petitioner nor
a proper opportunity of personal hearing was afforded to him. The third and
the last submission is that the petitioner had not voluntarily given up
membership of a political party by contesting the Lok Sabha Election as an
independent candidate and, therefore, he had not incurred any disqualification H
698
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A within the meaning of paragraph 2(l)(a) of the Tenth Schedule.
4.
Before examining the contentions raised by the learned counsel for
the petitioner, it is necessary to look to the historical background in which
the Tenth Schedule was added to the Constitution. On 8th December, 1967
the Lok Sabha passed a unanimous resolution constituting a Committee to
B consider in all its aspects the problem of legislators changing their allegiance
from one party to another and their frequent crossing of the Floor and make
recommendations in this regard. This Committee known as "Committee on
Defections" in its report dated 7th January, 1969 highlighted the alarming rise
in change of party allegiance by legislators. Compared to roughly 545 cases
C in the entire period between the First and Fourth General Elections, at least
438 defe<;tions occurred in a short period between March 1967 and February,
1968. Among independents, 157 out of a total of J 76 elected joined various
parties in this period. Out of 210 defecting legislators of the States of Bihar,
Haryana, M.P., Punjab, Rajasthan, U.P. and West Bengal, 116 were included
in the Council of Ministers which they helped to bring into being by defections.
D The Committee noted multiple acts of defections by the same person or set
of persons and the belief held by the people and expressed in the press that
corruption and bribery were behind some oi these defections. (See Kihoto
Ho/lohan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651 paras 5 and 6).
E
5.
Keeping in view the recommendations of the Committee on
Defections several Bills were introduced for amending the Constitution, but
they lapsed. Finally, a Bill which was enacted into Constitution (Fifty-second
Amendment) Act, 1985 was passed by which Tenth Schedule was added with
effect from 1.3.1985. The Statement of Objects and Reasons appended to the
Bill read as under :
F
I. The evil of political defections has been a matter of national
concern. If it is not combated, it is likely to undermine the very
foundations of our democracy and the principles which sustain it.
With this object, an assurance was given in the Address by the
President to Parliament that the Government intended to introduce in
G
the current session of Parliament an anti-defection Bill. This Bill is
meant for outlawing defection and fulfilling the above assurance.
H
2.
The Bill seeks to amend the Constitution to provide that an
elected member of Parliament or a State Legislature, who has been
elected as a candidate set up by a political party and a nominat~d
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M.P. SINGH v. CHAIRMAN, BIHAR LEGISLA TIVECOUNCIL[G.P. MATHUR, J.]
699
member of Parliament or a State Legislature who is a member of a A
political party at the time he takes his seat or who becomes a member
of a political party within six months after he takes his seat would be
disqualified on the ground of defection if he voluntarily relinquishes
his membership of such political party or votes or abstains from
voting in such House contrary to any direction of such party or is
expelled from such party. An independent member of Parliament or a B
State Legislature shall also be disqualified if he joins any political
party after his election. A nominated member of Parliament or a State
Legislature who is not a member ofa political party at the time of his
nomination and who has not become a member of any political party
before the expiry of six months from the date on which he takes his C
seat shall be disqualified if he joins any political party after the expiry
of the said period of six months. The Bill also makes suitable provisions
with respect to splits in, and mergers of, political parties. A special
provision has been included in the Bill to enable a person who has
been elected as the presiding officer of a House to sever his
connections with his political party. The question as to whether a D
member of a House of Parliament or State Legislature has become
subject to the proposed disqualification will be determined by the
presiding officer of the House; where the question is with reference
to the presiding officer himself, it will be decided by a member of the
House elected by the House in that behalf.
E
3.
The Bill seeks to achieve the above objects.
The provisions of the Tenth Schedule to the Constitution which are
relevant for the decision of the present case are being reproduced below :
1. Interpretation. In this Schedule, unless the context otherwise F
requires, -
(a)
'House' means either House of Parliament or the Legislative
Assembly or, as the case may be, either House of the Legislature
of a State;
(b)
'legislative party', in relation to a member ofa House belonging
to any political party in accordance with the provisions of
paragraph 2, paragraph 4, means the group consisting of all the
members of that House for the time being belonging to that
G
political party in accordance with the said provisions;
H
700
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A
(c)
'original political party', in relation to a member of a House,
means the political party to which he belongs for the purposes
of sub-paragraph (I) of paragraph 2;
(d) 'paragraph' means a paragraph of this Schedule.
B
2.
Disqualification on ground of defection-(!) Subject to the
provisions of paragraphs 4 and 5, a member of a House belonging to
any political party shall be disqualified for being a member of the
House -
(a)
if he has voluntarily given up his membership of such political
C
party; or
D
E
(b)
ifhe votes or abstains from voting in such House contrary to any
direction issued by the political party to which he belongs or by
any person or authority authorized by it in this behalf, without
obtaining, in either case, the prior permission of such political
party, person or authority and such voting or abstention has not
been condoned by such political party, person or authority within
fifteen days from the date of such voting or abstention.
Explanation-For the purposes of this sub-paragraph, -
(a)
an elected member of a House shall be deemed to belong to the
political party, if any, by which he was set up as a candidate for
election as such member;
(b)
(Omitted as not relevant)
F
(2) An elected member of a House who has been elected as such
otherwise than as a candidate set up by any political party shall be
disqualified for being a member of the House if he joins any political
party after such election.
G
H
(3) ............................................................. (Omitted as not relevant)
(4) ............................................................. (Omitted as not relevant)
6.
Decision on questions as to disqualification on ground of
defection-{ I) If any question arises as to whether a member of a
House has become subject to disqualification under this Schedule, the
..
M.P. SINGH v. CHAIRMAN, BIHARLEGISLATIVECOUNCIL[G.P. MATHUR,J.]
70}
question shall be referred for the decision of the Chairman or, as the A
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 B
member of the House as the House may elect in this behalf and his
decision shall be final.
(2) All proceedings under sub-paragraph (l) of this paragraph in
relation to any question as to disqualification of a member of a House C
under this Schedule shall be deemed to be proceedings in Parliament
within the meaning of article l 22 or, as the case may be, proceedings
in the Legislature of a State within the meaning of article 212.
7. Bar of jurisdiction of courts.-Notwithstanding anything in this
Constitution, no court shall have any jurisdiction in respect of any D
matter connected with the disqualification of a member of a House
under this Schedule.
6.
The underlying object and the purpose which the Tenth Schedule
seeks to achieve were explained as under in Kihoto Hollohan (supra) and it
will be useful to keep them in mind while interpreting its provisions :
E
"Para 13 : These provisions in the Tenth Schedule give recognition
to the role of political parties in the political process. A political party
goes before the electorate with a particular programme and it sets up
candidates at the election on the basis of such programme. A person
who gets elected as a candidate set up by a political party is so F
elected on the basis of the programme of that political party. The
provisions of Paragraph 2(1 )(a) proceed on the premise that political
propriety and morality demand that if such a person, after the election,
changes his affiliation and leaves the political party which had set him
up as a candidate at the election, then he should give up his membership G
of the legislature and go back before the electorate. The same yardstick
is applied to a person who is elected as an Independent candidate and
wishes to join a political party after the election."
7. Paragraph 2 of the Tenth Schedule lays down the contingencies
under which a member of the House belonging to any political party shall be H
702
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A disqualified for being a member of the House and they are enumerated in subparas (1), (2) and (3). Sub-para (2) deals with a situation where a member of
the House elected as an independent candidate joins any political party after
such election and sub-para (3) deals with a situation where a nominated
member of the House joins any political party after the expiry of six months
from the date on which he takes a seat. Sub-para (1) deals with a situation
B where a member of a House belonging to any political party voluntarily gives
up his membership of such political party. It also deals with a situation where
he votes or abstains from voting in the House, contrary to any direction
issued by the political party to which he belongs, without obtaining prior
permission of such political party and such voting or abstention has not been
C condoned by such political party within fifteen days from the said voting or
abstention. The scrutiny of the provisions of sub-para (2) would show that
a member of a House belonging to any political party becomes disqualified
for being a member of the House if he does some positive act which may be
either voluntarily giving up his membership of the political party to which he
belongs or voting or abstention from voting contrary to any direction issued
D by the political party to which he belongs and in the case of an independent
or nominated member on his joining a political party. On the plain language
of paragraph 2, the disqualification comes into force or becomes effective on
the happening of the event. Paragraph 4 is in the nature of an exception to
paragraph 2 and provides for certain contingencies when the rule of
E disqualification will not apply in the case of merger of political parties.
Paragraph 6 says that where any question arises as to whether a member of
the House has become subject to disqualification under the Schedule, the
same shall be referred for the decision of the Chairman or, as the case may
be, the Speaker of the House and his decision shall be final. Therefore, the
final authority to take a decision on the question of disqualification of a
F member of the House vests with the Chairman or the Speaker of the House.
It is to be noted that the Tenth Schedule does not confer any discretion on
the Chairman or Speaker of the House. Their role is only in the domain of
ascertaining the relevant facts. Once the facts gathered or placed show that
a member of the House has done any such act which comes within the
G purview of sub-paragraph (I), (2) or (3) of Paragraph 2 of the Tenth Schedule,
the disqualification will apply and the Chairman or the Speaker of the House
will have to make a decision to that effect.
8.
Paragraph 6 of Tenth Schedule attaches finality to the decision of
the Chairman or the Speaker of the House on a question as to whether a
H member of a House has become subject to disqualification under the Schedule.
M P. SINGH v. CHAIRMAN, BIHAR LEGISLATIVE COUNCIL[G.P. MA THUR, J )
703
Paragraph 7 excludes the jurisdiction of the Court in respect of any matter A
connected with disqualification of a member of a House under the Schedule.
as it says that notwithstanding anything in the Constitution, no Court shall
have any jurisdiction in respect of any matter connected with the
disqualification of a member of House under this Schedule. This provision
being in the Constitution itself, unlike a statutory provision, it effects the B
power of judicial review of the High Court and Supreme Court under Articles
226, 227 and 136 of the Constitution. Further, in view of the provision contained
in sub-paragraph (2) of paragraph 6 the proceedings in relation to
disqualification of a member of the House shall be deemed to be proceedings
in Parliament within the meaning of Article 122 or in the Legislature ofa State
within the meaning of Article 212, as the case may be. These are identical C
provisions which provide that validity of any proceedings in Parliament or
Legislature shall not be called in question on the ground of any alleged
irregularity in procedure. The vires of Tenth Schedule was challenged on
several grounds including the ground that the power of judicial review being
part of the basic structure of the Constitution, cannot be taken away by a
constitutional amendment.
The issue was considered by a Constitution D
Bench in Kihata Hallahan v. Zachillhu and Ors., [1992] Supp 2 SCC 651,
where Venkatachaliah, J. speaking for the majority held as under in para 111
of the reports :
"In the result, we hold on contentions (E) and (F) :
That the Tenth Schedule does not, in providing for an additional
ground, for disqualification and for adjudication of disputed
disqualifications, seek to create a non-justiciable constitutional area.
The power to resolve such disputes vested in the Speaker or Chairman
E
is a judicial power.
F
That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks
to impart finality to the decision of the Speakers/Chairman is valid.
But the concept of statutory finality embodied in Paragraph 6( 1) does
not detract from or abrogate judicial review under Articles 136, 226
and 227 of the Constitution insofar as infirmities based on violations G
of constitutional mandates, mala fides, non-compliance with Rules of
Natural Justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the Tenth Schedule
attracts an immunity analogous to that in Articles 112( 1) and 212(1)
of the Constitution as understood and explained in Keshav Singh H
704
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A
case (AIR 1965 SC 745) to protect the validity of proceedings from
mere irregularities of procedure. The deeming provision, having regard
to the words 'be. deemed to be proceedings in Parliament' or
'proceedings in the legislature of a State' confines the scope of the
fiction accordingly."
B
This authoritative pronouncement clearly lays clown that the decision
c
of the Chairman or the Speaker of the House can be challenged on very
limited grounds, namely, violation of constitutional mandate, malajides, noncompliance with rules of natural justice and perversity and further a mere
irregularity in procedure can have no bearing on the decision.
9.
The question as to when a member of a House belonging to a
political party can be said to have given up his membership of such political
party has been considered in two later decisions of this Court. In Ravi S.
Naik v. Union of India, [1994] Supp. 2 SCC 641 two M.L.A.s, Bandekar and
Chopdekar, had been elected on the ticket ofMGP party, but they accompanied
D the leader, of Congress (I) Legislative Party when he met the Governor to
show that he had the support of 20 MLAs.
On this conduct alone, the
Speaker held that they had given up membership of the MGP party and
disqualified them for being a member of the House. The decision of the
Speaker under which he held that the two MLAs shall be disqualified for
E being a member of the House under paragraph 2(1)(a) of the Schedule was
upheld by this Court. The scope and amplitude of paragraph 2(1)(a) was
explained as under in para 11 of the reports :
"11.. ......... The said paragraph provides for disqualification of a member
of a House belonging to a political party "if he has voluntarily given
F
up his membership of such political party". The words "voluntarily
given up his membership" are not synonymous with "resignation"
and have a wider connotation. A person may voluntarily give up his
membership of a political party even though he has not tendered his
resignation from the membership of that party. Even in the absence
G
of a formal resignation from membership an inference can be drawn
from the conduct of a member that he has voluntarily given up his
membership of the political party to which he belongs".
10. In G. Viswanathan and Ors. v. Hon'ble Speaker Tamil Nadu
, Legislative Assembly and Ors., [ 1996] 2 SCC 353 the appellants had been
H elected as members of the Legislative Assembly in 199 I as candidates of
M.P. SINGH v. CHAIRMAN, BIHAR LEGISLA TIVECOUNCIL[G.P. MATHUR,J]
705
AIDMK party but they were expelled from the said party on 8th January, 1994. A '
The Speaker declared them as unattached members of the Assembly on 16th
March, 1994. Sometime thereafter, an MLA informed the Speaker that the
appellants had joined MDMK party and, therefore, they should be disqualified
from membership of the Assembly. After calling for their explanation the
Speaker held that they had incurred the disqualification under paragraph B
2(1)(a) of the Tenth Schedule and had ceased to be members of the Assembly.
The main contention raised on behalf of the appellants was that paragraph
2(l)(a) of the Tenth Schedule comes into play only to disqualify a member
who voluntarily gives up his membership of that political party that had set
him up as a candidate, and not when he is expelled from the party and
declared "unattached" i.e. not belonging to any political party. It was further C
contended that para 2(a) will apply only when a member himself of his own
volition gives up his membership of the party. Any member thrown out will
cease to be a member of the party that had set him up as a candidate and
if he joins another party thereafter, it will not be a case of "voluntary giving
up his membership of the political party" that had set him up as a candidate
for the election. It was held that if the contention urged on behalf of the D
appellants is accepted, it will defeat the very purpose for which the Tenth
Schedule came to be introduced and would fail to suppress the mischief,
namely, breach of faith of the electorate. The principle on which such a view
was taken was explained as under in para 11 of the reports :
"11. It appears that since the explanation to para 2(1) of the Tenth E
Schedule provides that an elected member of a House shall be deemed
to belong to the political party, if any, by which he was set up as a
candidate for election as such member, such person so set up as a
candidate and elected as a member, shall continue to belong to that
party. Even if such a member is thrown out or expelled from the party, F
for the purposes of the Tenth Schedule he will not cease to be a
member of the political party that had set him up as a candidate for
the election. He will continue to belong to that political party even if
he is treated as 'unattached'. The further question is when does a
person "voluntarily give up" his membership of such political party, G
as provided in para 2(l)(a)? The act of voluntarily giving up the
membership of the political party may be either express or implied.
When a person who has been thrown out or expelled from the party
which set him up as a candidate and got elected, joins another (new)
party, it will certainly amount to his voluntarily giving up the
membership of the political party which had set him up as a candidate H
706
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.
A
for election as such member."
11. In the present case, the Chairman
1 of the Legislative Council has
held that the petitioner had been elected to the Legislative Council on the
ticket of the Indian National Congress but he contested .the parliamentary
election as an independent candidate. On these facts a conclusion has been
B drawn that he has given up his membership of Indian N~tional Congress.
This being a matter of record, the petitioner could not possibly dispute them,
and that is why he has admitted these facts in the writ petition as well. In
such a situation there can be no escape from. the conclusion that the petitioner
has incurred the disqualification under pa.ra~raph 2(1)(a) of the Schedule and
C the decision of the Chairman is perfectiy correct.
12. Paragraph 8 giv~s the rule mak.~g powers and it provides that the
Chairman or the Speaker ofa.'tf<;mse.may ma~e rules for giving effect to the
provisions of the Tenth Schedule. Clause (d) of sub-para (l) of this rule
provides that the Rule may provide th.e ,P,rocedure for deciding any question
D referred to in sub~para (I) of paragr~~h. 6. including the procedure for any
inquiry which may be made for the purpose of deciding such question. In
exercise of the power conferred by paragraph 8 oflhe Tenth Schedule, the
Chairman, Bihar Legislative Council has made the Bihar Legislative Council
Members (Disqualification on ground of Defection) Rules, 1994 (hereinafter
referred to as "the Rules"). Rule 3 of the Rules provides that the leader of
E each legislature party shall furnish to the Chairman a statement in writing
containing the names of members of such political party. Sub-rules (1) and
(6) of Rule 6 and Sub-rules (I) and (2) of Rule 7 read as under:
F
6.
REFERENCES TO BE BY PETITIONS.
(I) No reference of any question as to whether a member has become
subject to disqualification under the Tenth Schedule shall be
made except by a petition in relation to such member made in
accordance with the provisions of this rule.
G
(2)
.................................................................................................................. .
H
(6)
Every petition shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (5 of 1908),
for the verification of pleadings.
M.P. SINGH v. CHAIRMAN, BIHARLEGISLA TIVE COUNCIL[G.P. MA THUR, J.)
707
7.
PROCEDURE
(1)
On receipt of a petition under rule 6, the Chairman shall consider
whether the petition complies with the requirements of that rule.
(2) If the petition does not comply with the requirements of rule 6;
A
the Chairman shall dismiss the petition and intimate the petitioner B
accordingly.
13. It may be noted that under Paragraph 8, the Chairman or the
Speaker of a House is empowered to make rules for giving effect to the
provisions of the Tenth Schedule. The rules being delegated legislation are
subject to certain fundamental factors. Underlying the concept of delegated C
legislation is the basic principle that the legisla_ture delegates because it
cannot directly exert its will in every detail. All it can in practice do is to lay
down the outline. This means that the intention of the legislature, as indicated
in the outline (that is the enabling Act), must be the prime guide to the
meaning of delegated legislation and the extent of the power to make it. The D
true extent of the power governs the legal meaning of the delegated legislation.
The delegate is not intended to travel wider than the object of the legislature.
The delegate's function is to serve and promote that object, while at all times
remaining true to it. That is the rule of primary intention. Power delegated by
an enactment does not enable the authority by regulations to extend the
scope or general operation of the enactment but is strictly ancillary. It will E
authorise the provision of subsidiary means of carrying into effect what is
enacted in the statute itself and will cover what is incidental to the execution
of its specific provision. But such a power will not support attempts to widen
the purposes of the Act, to add new and different means of carrying them
out or to depart from or vary its ends.