# JAGllTSINGH v. STATE OF HARYANA AND ORS

- **Citation:** [2006] Supp. 10 S.C.R. 521
- **Court:** Supreme Court of India
- **Decided:** 2006-12-11
- **Bench:** Y.K. Sabharwal, C.K. Thakker, P.K. Balasubramany An
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaglltsingh-v-state-of-haryana-and-ors-21287
- **Pages:** 49

## Headnote

Constitution of India, 1950-Tenth Schedule Paras 2 (/) (a) and (2)
A
B
3 and 8-Members of Legislative Assembly-Four were elected as independent C
members and two were sole members of their respective political partiesComplaint of defection to another political party-Speaker of the assembly
relying on the statements of the members in electronic media, disqualified
them from membership of the Assembly-Members declined to watch the
recording in order to point out doctoring therein-Members sought permission
to cross-examine and lead evidence-Denial thereof-Orders of D
disqualification challenged on the ground of violation of principles of Natural
Justice and malafide-Held: Jn the facts and circumstances of the case mere
denial to cross examine and adduce evidence may not automatically lead to
violation of principles of Natural Justice-On the facts plea of malafide not
acceptable-A member cannot be permitted to get away with defection on the E
ground of mere technicalities-Order of the speaker not illegal and
unreasonable-The independent members have incurred disqualification
under Para 2 (2)-To determine whether an independent member has joined
a political party the test is not whether he has fulfilled the formalities for
joining a politicalparty but that he has given up his independent statusProtection of Para 3 is not applicable to a single member party-Burden to F
prove the requirement of Para 3 is on the member who seeks protection
thereunder-Members of political parties having failed to prove the split in
their respective parties, not entitled to protection under Para 3-EvidenceBurden to prove-Haryana Legislative Assembly (Disqualification of Member
on ground of Defection) Rules, I 986.
Election Law-Defection Law-Object of-Discussed.
Evidence-Admission-Evidentiary value of-Held: Admission is best
evidence-Though conclusive it is decisive of the matter unless successfully
521
G
H
522
SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R ..
A withdrawn or proved erroneous.
Judicial Review-Scope of-In cases of disqualification of members of
Legislative Assembly-Held: Speaker, while exercising power to disqualify
members acts as a Tribunal-Validity of such orders can be challenged on
the ground of ultra vires or malafide or having been made in colourable
B exercise of power based on extraneous and irrelevant consideration-But the
scope of judicial review in respect of such proceedings is limited-Order
would be a nullity if rules of natural justice are violated-Principles of
Natural Justice.
C
Principle of Natural Justice-Right to hearing-Opportunity to cross
examine and adduce evidence denied-Denial of reasonable opportunity of
hearing alleged-Held: Principles of Natural Justice are flexible and have
to be examined in each case-They cannot be f1Xed in rigid mould-In the
present case in view of the conduct of the alleging parties, mere denial of
opportunity to cross examine or adduce evidence may not automatically lead
D to violation o principles of Natural Justice.
E
Interpretation of Statutes-It is ordinarily not the function of the court
to read word, in a statute-Court must proceed on the assumption that
legislature did not make a mistake and it intended to say what it saidConstitution of India, I950-Tenth Schedule para 3 and 2 (/) (a).
Doctrines-Doctrine of necessity-Applicability of
Petitioners were elected to the State Assembly. Four petitioners ~ere
independent members and two were lone members representing their
respective political parties in the Assembly. Speaker of the Assembly
F disqualified them from the membership of the Assembly in exercise of its
power under the Tenth Schedule to the Constitution of India. All the petitioners
challenged the orders of disqualification on the ground of violation of principles
of natural justice; that impugned orders were result of malafide of the Speaker
as the disqualifications were made in utter haste with a view to deprive them
G of their right to vote in elections to Rajya Sabha in view

## Text

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JAGllTSINGH
v.
STATE OF HARYANA AND ORS.
DECEMBER 11, 2006
[Y.K. SABHARWAL, CJ., C.K. THAKKER AND
P.K. BALASUBRAMANY AN, JJ.]
Constitution of India, 1950-Tenth Schedule Paras 2 (/) (a) and (2)
A
B
3 and 8-Members of Legislative Assembly-Four were elected as independent C
members and two were sole members of their respective political partiesComplaint of defection to another political party-Speaker of the assembly
relying on the statements of the members in electronic media, disqualified
them from membership of the Assembly-Members declined to watch the
recording in order to point out doctoring therein-Members sought permission
to cross-examine and lead evidence-Denial thereof-Orders of D
disqualification challenged on the ground of violation of principles of Natural
Justice and malafide-Held: Jn the facts and circumstances of the case mere
denial to cross examine and adduce evidence may not automatically lead to
violation of principles of Natural Justice-On the facts plea of malafide not
acceptable-A member cannot be permitted to get away with defection on the E
ground of mere technicalities-Order of the speaker not illegal and
unreasonable-The independent members have incurred disqualification
under Para 2 (2)-To determine whether an independent member has joined
a political party the test is not whether he has fulfilled the formalities for
joining a politicalparty but that he has given up his independent statusProtection of Para 3 is not applicable to a single member party-Burden to F
prove the requirement of Para 3 is on the member who seeks protection
thereunder-Members of political parties having failed to prove the split in
their respective parties, not entitled to protection under Para 3-EvidenceBurden to prove-Haryana Legislative Assembly (Disqualification of Member
on ground of Defection) Rules, I 986.
Election Law-Defection Law-Object of-Discussed.
Evidence-Admission-Evidentiary value of-Held: Admission is best
evidence-Though conclusive it is decisive of the matter unless successfully
521
G
H
522
SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R ..
A withdrawn or proved erroneous.
Judicial Review-Scope of-In cases of disqualification of members of
Legislative Assembly-Held: Speaker, while exercising power to disqualify
members acts as a Tribunal-Validity of such orders can be challenged on
the ground of ultra vires or malafide or having been made in colourable
B exercise of power based on extraneous and irrelevant consideration-But the
scope of judicial review in respect of such proceedings is limited-Order
would be a nullity if rules of natural justice are violated-Principles of
Natural Justice.
C
Principle of Natural Justice-Right to hearing-Opportunity to cross
examine and adduce evidence denied-Denial of reasonable opportunity of
hearing alleged-Held: Principles of Natural Justice are flexible and have
to be examined in each case-They cannot be f1Xed in rigid mould-In the
present case in view of the conduct of the alleging parties, mere denial of
opportunity to cross examine or adduce evidence may not automatically lead
D to violation o principles of Natural Justice.
E
Interpretation of Statutes-It is ordinarily not the function of the court
to read word, in a statute-Court must proceed on the assumption that
legislature did not make a mistake and it intended to say what it saidConstitution of India, I950-Tenth Schedule para 3 and 2 (/) (a).
Doctrines-Doctrine of necessity-Applicability of
Petitioners were elected to the State Assembly. Four petitioners ~ere
independent members and two were lone members representing their
respective political parties in the Assembly. Speaker of the Assembly
F disqualified them from the membership of the Assembly in exercise of its
power under the Tenth Schedule to the Constitution of India. All the petitioners
challenged the orders of disqualification on the ground of violation of principles
of natural justice; that impugned orders were result of malafide of the Speaker
as the disqualifications were made in utter haste with a view to deprive them
G of their right to vote in elections to Rajya Sabha in view of the fact that the
Speaker, on telephone had told that if they abstained from voting, their
disqualification could be avoided; that the speaker had no basis for coming to
the conclusion regarding their defection; and that the petitioners belonging
to the political parties were entitled to protection of Paragraph 3 of the Tenth
Schedule since there were splits in their original political parties and they
H being single member parties in the Assembly, having joined another party,
JAGJIT SINGH v. ST A TE OF HARY ANA
523
the stipulation that when more than one-third members join another party, A
there is a split, stood fulfilled, it being a case of hundred per cent members
joining another political party.
Dismissing the Writ Petitions, the Court
HELD: I. The Speaker, while exercising power to disqualify members, B
acts as a Tribunal and though validity of the orders, thus, passed can be
questioned in the writ jurisdiction of this Court or High Courts, the scope of
judicial review is limited. The orders can be challenged on the ground of ultra
vires or malajides or having been made in colourable exercise of power based
on extraneous and irrelevant considerations. The order would be a nullity if C
rules of natural justice are violated. (535-B-D]
Kihoto Hollohan v. Zachil/hu and Ors., (1992) supp 2. SCC 651, relied
on.
2.1. The Speaker, in law, was the only authority to decide whether the
petitioners incurred or not, disqualification under the Tenth Schedule to the D
Constitution in his capacity as Speaker. He had obviously opportunity to see
the petitioners and hear them and that is what has been stated by the Speaker
in his order. Speaker has not committed any illegality by stating that he had
on various occasions seen and heard these MLAs. It is not a case where the
Speaker could transfer the case to some other tribunal. The doctrine of E
necessity under these circumstances would also be applicable. No illegality
can be inferred merely on the Speaker relying upon his personal knowledge
of having seen and heard the petitioners for coming to the conclusion that
persons in the electronic evidence are the same as he has seen and so also
their voices. (548-A-C]
Dewan Singh v. Champat Singh and Ors., (1969) 3 SCC 447,
distinguished.
F
2.2. Undoubtedly, the Speaker has to comply with the principles of
natural justice and cannot pass an order on the basis of pre-determination
but in the present case, it cannot be held that the impugned order suffers G
from any such infirmity. It cannot be said that the petitioners were not given
a fair deal by the Speaker and principles of natural justice have been violated.
[553-A-B)
2.3. The requirement to comply with the principles of natural justice is H
also recognized in rules made by the Speaker in exercise of powers conferred
524
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A by paragraph 8 of the Tenth Schedule of the Constitution of India. The
Speaker, Haryana Legislative Assembly, made the Haryana Legislative
Assembly (Disqualification of Members on ground of Defection) Rules, 1986
in exercise of power conferred by paragraph 8 of the Tenth Schedule.
[535-D-F)
B
2.4. The question whether reasonable opportunity has been provided or
not cannot be put in a strait-jacket and would depend on the fact situation of
each case. While considering the plea of violation of principles of natural
justice, it is necessary to bear in mind that the proceedings, under the Tenth
Schedule, are not comparable to either a trial in a court oflaw or de.partmental
C proceedings for disciplinary action against an employee. But the proceedings
here are against an elected representative of the people and the judge holds
the .independent high office of a Speaker. The scope of judicial review in
respect of proceedings before such Tribunal is limited. Howsoever limited
may be the field of judicial review, the principles of natural justice have to be
complied with and in their absence, the orders would stand vitiated. The
D yardstick to judge the grievance that reasonable opportunity has not been
afforded would, however, be different Further, ifthe view taken by the Tribunal
is a reasonable one, the Court would decline to strike down an order on the
ground that another view is more reasonable. The Tribunal can draw an
inference from the conduct of a member, of course, depending upon the facts
E of the case and totality of the circumstances. [535-F-H; 536-A-C)
2.5. In the present case, petitioners filed their replies to the complaint
and were asked by the Speaker to watch the video recording and point out
doctoring thereof, if any. The petitioners failed to do so. The petitioners cannot
be permitted to sit on the fence, take vague pleas, make general denials in
p the proceedings before the Tribunal of the nature under cons.ideration. Under
these circumstances, mere denial of opportunity to cross-examine or adduce
evidence may not automatically lead to violation of principles of natural justice.
The principles of natural justice cannot be placed in such a rigid mould. The
principles of natural justice are flexible and have to be examined in each case.
G
[540-D-H)
National Textile Workers' Union and Ors. v. P.R. Ramakrishnan and Ors.,
(1983) l sec 228, distinguished.
Swadeshi Cotton Mills v. Union of India, [1981) 1 SCC 664; Ravi S.
Naik v. Union of India and Ors., [ 1994) Supp. 2 SCC 641; Kihoto Hollohan
H v. Zachillhu and Ors., f 1992) Supp. 2 SCC 651; Mrs.Maneka Gandhi v. Union
JAGJITSINGHv. STATEOFHARYANA
525
oflndiaandAnr., (1978) 1 SCC248and Unionof/ndiaandAnr. v. Tulsiram A
Patel, (19851 3 SCC 398, referred to.
John v. Rees and Anr., [1969) 2 All E.R. pp. 307-309, referred to.
2.6. It is evident from the facts that the petitioners declined to watch
the recording, failed to show how and what part of it, if any, was not genuine B
but merely made general denials and sought permission to cross-examine and
opportunity to lead evidence. [543-E-Fl
2. 7. The sufficiency of the time granted depends upon the facts and
circumstances of each case. Having regard to the facts of the case it cannot
be accepted that in the present case, the petitioners were not granted sufficient C
time to meet the case against them. (543-G-H)
2.8. Admission is the best evidence that can be relied upon, and though
not conclusive, is decisive of the matter, unless successfully withdrawn or
proved erroneous. The petitioners have failed to satisfy the latter part.
(552-H; 553-A] D
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and
Ors., [1960) 1 SCR 773, relied on.
3. The object for enacting the defection law is to curb the menace of
defection. Despite defection a member cannot be permitted to get away with E
it without facing the consequences of such defection only because of mere
technicalities. The substance and spirit of law is the guiding factor to decide
whether an elected independent member has joined or not a political party
after h~s election. [541-D-F]
4.1. Petitioners (independent members) have incurred disqualification
as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of
India. [554-B-CJ
F
4.2. It is correct that there is a fundamental difference between an
independent elected member and the one who contests and wins on ticket given G
by a political party. This difference is recognized by various provisions of
the Tenth Schedule. An independent elected member of a House incurs
disqualification when he joins any political party after election as provided in
paragraph 2(2) of the Tenth Schedule. It is also correct that the proposition
that giving of outside support by an independent elected member is not the
same thing as joining any political party after election. To find out whether H
526
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A an independent member has extended only outside support or, in fact, has joined
a political party, materials available and also the conduct of the member are
to be examined by the Speaker. It may be possible in a given situation for a
Speaker to draw an inference that an independent member of the Assembly
has joined a political party. No hard and fast rule can be laid down when the
answer is dependent on the facts of each case. [541-A-D]
B
4.3. To determine whether an independent member has joined a political
party the test is not whether he has fulfilled the formalities for joining a
political party. The test is whether he has given up his independent character
on which he was elected by the electorate. A mere expression of outside
support would not lead to an implication of a member joining a political party.
C At the same time, non-fulfillment of formalities with a view to defeat the intent
of paragraph 2(2) is also of no consequence. The question offact that a member
has given up his independent character and joined, for all intent and purposes,
a political party though not formally so as to incur disqualification provided
in paragraph 2(2) is to be determined on appreciation of the material on record.
D Applying this test here, it cannot be held that the Speaker committed any
illegality in coming to the conclusion that the petitioners had joined the Indian
National Congress. The conclusions reached by the Speaker cannot be held
to be unreasonable, assuming that two views were possible.
(553-F-H; 554-A-B)
5.1. On the facts of the present case, the Speaker was justified in
E coming to the conclusion that there was no split in the original political party
of the petitioner 'J'. Likewise, in Writ Petition of another petitioner belonging
to political party, the Speaker on consideration of relevant material placed
before him came to the conclusion that there was no split as contemplated by
paragraph 3 of the Tenth Schedule. The finding of the Speaker cannot be
F faulted. In fact, letter of the petitioner dated 17th June sent to the Speaker
itself shows that what was claimed was that the Haryana unit of the Republican
Party of India effected a split in the original party on 21st December, 2003.
The finding that the claim of split was made as an afterthought to escape
disqualification under paragraph 2(l)(a) of the Tenth Schedule cannot be held
to be unreasonable or perverse. The Speaker was justified in coming to the
G conclusion that despite various opportunities, no valid proof or evidence was
placed on record by the petitioner to show that indeed a split had taken place
in the original political party. (563-D-G)
5.2. The disqualification under paragraph 2(1)(a) is incurred when a
member of the House voluntarily gives up membership of his original political
H party. Paragraph 2 is, however, subject to paragraph 3 of the Tenth Schedule.
JAGJIT SINGH v. STA TE OF HARY ANA
527
If conditions of paragraph 3 are satisfied, despite giving up membership A
voluntarily, a member would not incur disqualification under paragraph 2.
Paragraph 3 proceeds on the assumption that but for the applicability of the
said provision the disqualification under paragraph 2 would be attracted. The
burden to prove the requirements of paragraph 2 is on the person who claims
that a member has incurred the disqualification. The burden to prove the B
requirements of paragraph 3 is on the member who claims that there has
been a split in his original political party and for that reason disqualificati_on
under paragraph 2 is not attracted. (558-C-E)
,~:
Ravi S. Naikv. Union of India and Ors., [1994) Supp. 2 SCC 641, relied
on.
5.3. The acceptance of the contention that only claim is to be made to
satisfy the requirements of paragraph 3 can lead to absurd consequences
besides the elementary principle that whoever makes a claim has to establish
it. It will also mean that when a claim as to split is made by a member before
c
the Speaker so as to ·take benefit of paragraph 3, the Speaker, without being D
satisfied even primafacie about the genuineness and bonafides of the claim,
has to accept it. It will also mean that even by raising a frivolous claim of
split of original political party, a member can be said to have satisfied this
stipulation of paragraph 3. The acceptance of such broad proposition would
defeat the object of defection law, namely, to deal with the evil of political
defection sternly. For the purposes of paragraph 3, mere making of claim is E
not sufficient. The primafacie proof of such a split is necessary to be produced
before the Speaker so as to satisfy him that such a split has taken place.
(559-C-F)
5.4. In the present case, the Speaker has held that the petitioner has
failed to satisfy that split in the original party, had taken place. The petitioner F
voluntarily gave up membership of National Congress Party (NCP) and joined
this newly formed party. On these facts, the disqualification of voluntarily
giving up membership of NCP stands attracted subject to the claim of the
petitioner under paragraph 3. The petitioner had to prove that the stipulations
of paragraph 3 are satisfied. The Speaker has held that no valid proof or G
evidence was placed on record to show that split had indeed taken place in
NCP. The Speaker, on the basis of material on record, has come to the
conclusion that the petitioner was wanting to treat his own defection allegedly
supported, according to the petitioner, by some party workers at local level as
a split in his original political party. Such a plea was not accepted by the
Speaker. The Speaker is right. Such a split, if held to be valid for the purposes H
528
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A of paragraph 3, would defeat the very purpose of the law. The requirement is
not the split of the local or State wing of original political party but is of
original political party as defined in paragraph l(c) of the Tenth Schedule
read with the explanation in paragraph 2(1) to the effect that 'an elected
member of a House shall be deemed to belong to the political party, if any, by
B which he was set up as a candidate for election as such member'.
[559-F-H; 560-C-E(
Madan Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha The
Punjab Law Reporter Vol.CXVII 1997-3, 374- disapproved.
5.5. In the case of split, one-third members of State Legislature
C belonging to that political party must form a group to make the split effective
within the State Legislature but it does not lead to the conclusion that the
Parliament intended to treat State Unit of a political party as a separate entity
for the purposes of the benefit of paragraph 3. Paragraph l(c) defining
original political party and explanation as given in paragraph 2(1) have already
D been noticed herein before. It is clear from a bare reading thereof that the
elected member belongs to the political party by which he is set up as a
candidate for election as such member. From the plain language of these
provisions, it cannot be held that for the purposes of the split, it is the State
Legislature party in which split is to be seen. If a member is set up by a
National Party, it would be no answer to say that events at National level have
E 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.
[562-B-E)
G. Viswanathan v. Hon'ble Speaker Tamil Nadu Legislative Assembly,
p Madras and Anr., [1996) i sec 353, relied on.
5.6. The words 'he and any other person' and the words 'the group' in
paragraph 3 on the plain reading shows that the benefit of paragraph 3 is not
available to a single member legislature party. It cannot be said that the words
'he and any other person', in the context of a recognized single member
G legislature party should be read and understood as 'he or he and any other
members of his legislature party constitute the group'. The Court cannot
read words in the Constitution which do not exist. Undoubtedly, paragraph
2(l)(a) is subject to the provisions of paragraphs 3, 4 and 5 and if paragraph
3 applies and ingredients thereof are satisfied the member would not attract
disqualification under paragraph 2(1)(a). In that sense paragraph 3 overrides
H paragraph 2(l)(a). The factor that a single member legislature party is
JAGJIT SINGH v. STA TE OF HARYANA
529
recognized by the Speaker is of no relevance in interpreting paragraph 3 of A
the Tenth Schedule. In the context of the language of paragraph 3 of the Tenth
Schedule, Section 13(2) of the General Clauses Act, 1897 which requires
that unless there is anything repugnant in the subject of context, 'words in
the singular shall include the plural, and vice-versa' has no applicability. It
is, ordinarily, not the function of the Court to read words into a statute. The
Court must proceed on the assumption that the Legislature did not make a B
mistake and it intended to say what it said. It is well settled that "the Court
cannot add words to a statute or read words into it which are not there,
especially when the literal reading produces an intelligible result'.
1566-D-H; 567-A-BJ
P.K. Unni v. Nirmala Industries and Ors., (199012 SCC 378, referred C
to.
5. 7. It cannot be said that when paragraph 3 protects when there is
defection of a group consisting of not less than one-third of the members of
a legislature party, the intention of law can never be to deprive such a benefit
where group is 100%. Firstly, there is no contradiction or ambiguity or D
defect or omission in paragraph 3; secondly, there is no manifest
contradictions insofar as the apparent object of the defection law is concerned
in paragraph 3 depriving the benefit of single member legislature party;
thirdly the legislature is assumed to have known the existence of single
member legislature party; and finally from the language of paragraph 3, it is
evident that the Parliament did not intend to grant the benefit of paragraph 3 E
to a single person legislature party, having regard to the object of the
Constitutional amendment dealing with evil of defection. Advisedly, the words
are 'he and other members' instead of the words 'he or he and other members'.
[567-A-E)
5.8. The object of the Tenth Schedule is to discourage defection. F
Paragraph 3 intended to protect a larger group which, as a result of split in
a political party which had set up the candidates, walks off from that party
and does not treat it as defection for the purposes of paragraph 2 of the Tenth
Schedule. The intention of the Parliament was to curb defection by a small
number of members. That intention is clear from paragraph 3 which does
not protect a single member legislature party. By Constitution (Ninty-first G
Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth Schedule.
(567-D-FJ
5.9. The question of drawing adverse inference in view of Speaker not
rebutting the averments, would depend upon the satisfaction of the Court,
having regard to the facts and circumstances of the case. Ordinarily, the H
530
SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.
A adverse inference can be drawn in respect of allegations not traversed, but
there is no general rule that adverse inference must always be drawn, whatever
the facts and circumstances may be. The facts and circumstances of the
present case as to how the petitioners have been avoiding to appear before the
Speaker; how the proceedings were being delayed and long adjournments
sought on ground such as non-availability of senior advocates because of court
B vacations. In the light of these peculiar facts and circumstances, a telephone
call like the one alleged can mean that further adjournment as sought for by
the petitioners is possible if they do not vote in the Rajya Sabha election. On
facts there is no adverse inference and the plea of malafides cannot be
accepted. (568-B-EJ
c
6. Certain questions have been raised about the confidence in the matter
of impartiality on some issues having political overtones which are decided
by the Speaker in his capacity as a Tribunal. It has been urged that if not
checked, it may ultimately affect the high office of the Speaker.
Recommendations have been made by the National Commission to review the
D working of the Constitution recommending that the power to decide on the
question as to disqualification on ground of defection should vest in _the
Election Commission instead of the Speaker of the House concerned. There
are views of number of other experts, committees/commissioner to the effect
that the power of disqualification as a result of defection need ta be exercised
E in accordance with the opinion of the Election Commission as in the case of
decision on question as to disqualification of members provided for in Article
103 and 194(2) of the Constitution. (568-H; 569-A-CJ
F
Kihoto Hollohan v. Zachillhu and Ors., (1997) supp. 2 SCC 651,
referred to.
Anti-Defection Law and Parliamentary Privileges by Dr. Subhash C.
Kashyap; Indian Constitutional Law by M.P. Jain 5th Edn; Constitutional
Law of India, 2nd Edn. by T.K. Tope, Reviewing the Constitution edited by
Dr. Subhash C. Kashyap and Ors; First V.M. Tarkunde Memorial Lecture on
"Indian Democracy Reality or Myth?" delivered by Shri Soli J. Sorabjee,
G referred to.
G
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 287 of2004.
(Under Article 32 of the Constitution of India.)
WITH
\ -
JAGJITSINGHv. STATEOFHARYANA
531
WP (C) Nos. 290, 291, 292, 293 and 294 of2004.
A
Ajay Siwach, A.A.G., P.P. Rao, V.A. Bobde, Soli J. Sorabjee, R.N. Trivedi,
Mahendra Anand, Shanti Bhushan, Rakesh K. Khanna Jaspal Singh, R.N.
Karanjawala, Arunabh Chaudhary, Sarvesh Singh Baghel, Abhishek Kumar,
Anshuman Ashok, Dashmeet Chaddha, Kanika Agnihotri, Pragya Baghel,
Manik Karanjawala, Gaurav Vatts, Aditya Kumar Choudhary, Manish Mohan, B
Sweta Garg, Surya Kant, Sandeep Sharma, T.V. George, Sanjai Pathak, Ugra
Shankar Prasad and Arun Kumar Beriwal for the appearing parties.
The Judgment of the Court was delivered by
Y .K. SABHARW AL, CJ. These petitions challenge the legality of orders C
passed by the Speaker of Haryana Legislative Assembly (for short, 'the
Assembly') disqualifying petitioners from being members of the Assembly.
The impugned orders have been passed in exercise of the powers conferred
on the Speaker under the Tenth Schedule to the Constitution of India. Four
petitioners (Writ Petition Nos.290, 291, 293-294 of 2004) were independent D
members of the Assembly. Petitioner-Jagjit Singh (W.P.No.287 of2004) belonged
to a political party named 'Democratic Dal ofHaryana'. He was a lone member
representing his party in the Assembly.
Petitioner- Karan Singh Dalal
(W.P.No.292 of2004) was a lone member of a political party named 'Republican
Party of India' in the Assembly.
The petitioners were elected to the Assembly in election held in February,
2000. All impugned orders disqualifying the petitioners were passed on 25th
June, 2004. The voting for election to Rajya Sabha took place on 28th June,
2004. The petitio~ers, however, could not yote in the said election, having
ceased to be the members of the Assembly with immediate effect.
The challenge to the orders of disqualification is made on various
grounds. The ground common to all the petitions is the violation of principles
of natural justice. It has been contended on behalf of all the petitioners that
E
F
the orders of disqualification were made in utter haste with a view to deprive
them of their right to vote on 28th June, 2004 with a view to help the Chief G
Minister whose son was a candidate in elections to Rajya Sabha.
It is
contended that the Speaker had no basis for coming to the conclusion that
the independent members had joined the Indian National Congress. It is
claimed that the impugned orders are clearly result ofmalafides of the Speaker.
On behalf of the two petitioners belonging to political parties, it has been;
contended that they are entitled to protection of paragraph 3 of the Tenth H
532
SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
A Schedule since there were splits in their original political parties and they
being single member parties in the Assembly, on having joined Indian National
Congress, the stipulation that when more than one-third members join another
party, there is a split, stood fulfilled, it being a case of hundred per cent
members joining another political party.
B
Before considering the legal submissions, we may briefly narrate the
c
facts of each case.
Writ Petition No.287 of 2004 (Jagjit Singh) and Writ Petition No.292
of 2004 (Karan Singh Dalal)
The petitioner contested election as a candidate of National Congress
Party (NCP) and was the only elected member of the party in the Assembly.
The case of the petitioner is that on 28th December, 2003 due to organizat!onal
difficulties and differences with the central leadership ofNCP which is primarily
based in Maharashtra/Meghalaya, the workers/leaders of the NCP at Haryana
D decided to cause a split by passing a unanimous Resolution. The split was
recognized by central leadership ofNCP. On split, a new political party named
'Democratic Dal of Haryana' was formed. The petitioner on 29th December,
2003 filed application before the Speaker placing the factum of split and
formation of the new party on record. On 31st December, 2003, respondent
No.3 filed a complaint before the Speaker under paragraphs 2 and 6 of the
E Tenth Schedule of the Constitution of India seeking disqualification of the
petitioner on the ground that he has voluntarily defected from NCP and
formed/joined Democratic Dal of Haryana. On 17th March, 2004, Speaker
issued notice to petitioner calling for his comments to the allegations made
against him. However, notice could not be served on the petitioner. The case
F of petitioner is that on 30th April, 2004 merger of Democratic Dal ofHaryana
took place with Indian National Congress in accordance with law and, therefore,
the case is covered by Paragraph 4 of the Tenth Schedule. In this view, no
proceedings for disqualification could be initiated or continued. A further
notice dated 23rd April, 2004 was also issued to the petitioner. A fresh notice
dated 18th May, 2004 was issued calling upon the petitioner to file reply on
G or before 4th June, 2004 that was served on the staff of the petitioner on 3 lst
May, 2004. The petitioner on 4th June, 2004 filed an application before
respondent no.2-Speaker placing on record certain facts and praying for
extension of time by four weeks to file reply. On 23rd June, 2004, request of
the petitioner for adjournment of proceedings beyond 28th June, 2004 was
·H
rejected by the Speaker who heard the arguments and listed the matter for
-
"i
f.
·r
/
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.]
533
further proceedings for 24th June, 2004. On 24th June, 2004, proceedings A
were adjourned to 25th June, 2004 for orders. Further case of the petitioner
is that the Speaker on 24th June, 2004, called him on his mobile phone and
stated that if petitioner decides to abstain from voting in election of Rajya
Sabha on 28th June, 2004, his disqualification can be avoided. The impugned
order was passed on 25th June, 2004.
One of the contentions urged is that the Speaker, respondent No.2, has
B
not filed any reply and, therefore, the averment made that he called the
petitioner on 24th June, 2004 asking him that if he decides to abstain from
voting, disqualification can be avoided shall be deemed to be admitted and,
thus, the malafides of the Speaker are apparent. The contention is that the C
Speaker was acting on the dictates of respondent No.5, the Chief Minister of
Haryana whose son was contesting the election to Rajya Sabha and the
impugned order was passed at his behest.
The facts of writ petition No.292 of2004 are almost similar with the only
difference that the petitioner here was member of another political party, D
namely, Republican Party of India (RPI). All other facts including the dates,
grounds, non-service and thereafter manner of service of the notice are almost
similar.
W.P.No.291 o/2004 (Dev Raj Dewan) and W.P. Nos.290, 293-29412004
E
The petitioner in Writ Petition No.291 of 2004 was elected as an
independent member of the Assembly and a& such supported from outside
the Government of Indian National Lok Dal Party headed by respondent No.5,
as ChiefM~nister for more than four years from February, 2000 to June, 2004.
The case of the petitioner is that on 14th June, 2004, he withdrew his support
to Government of respondent No.5 and declared his outside support to Indian F
National Congress in the State of Haryana. On 15th June, 2004, a complaint
was filed against him by respondent No.3 under paragraphs 2 and 6 of the
Tenth Schedule of the Constitution on the ground that petitioner had joined
the Indian National Congress. Complaints were also filed against petitioners
in Writ Petition Nos.290, 293-294 seeking their disqualification on similar G
grounds. The Speaker, respondeflt No.2, issued notice to the petitioner on
16th June, 2004 for submitting comments on 24th June, 2004. The application
dated 23rd June, 2004 filed by respondent No.3 before Speaker to place on
record additional evidence was taken up by the Speaker on 24th June, 2004.
The copies of application dated 23rd June, 2004 for placing on record additional
H
534
SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.
A evidence, affidavit of Ashwani Kumar along with transcripts of interview on
Zee TV and Haryana News and the alleged page of Congress Legislature
Party Register dated 16th June, 2004 were handed over by the Speaker to the
c9unsel for the petitioner at 3.30 p.m. on 24th June, 2004 with a direction to
file reply thereto by IO a.m. on the next date i.e. 25th June, 2004. On 25th
B June, 2004, petitioner filed a short reply to the main petition alleging malafides
against the Speaker and the Chief Minister and denying that he joined Indian
National Congress. A reply was also filed on that date to the application
stating that fair opportunity to contest the proceedings had not been granted
and the evidence is concocted and manipulated. An opportunity was sought
to cross-examine Ashwani Kumar and also to lead evidence. On the same
C date at 1.00 p.m. the impugned order was passed. The facts in the other three
cases are almost identical.
According to the petitioners, there is no material for coming to the
conclusion that they joined Indian National Congress. They attribute ma/afides
to respondent Nos.2 and 5. According to them, the sole purpose ofrespondent
D No.2 was to deprive them of their right to exercise their franchise in the Rajya
Sabha elections to help the son of the Chief Minister. They also dispute the
correctness of the T.V. and newspaper reports to the effect that they have all
joined Indian National Congress. The contention is that joining a political
party is different from extending outside support to it. They contend that in
E a similar manner the petitioners without joining the party of respondent No.5,
for nearly 4 years were extending his Government outside support and now
their decisiqn to extend outside support to Indian National Congress cannot
and does not amount to joining ftre said political party. It has been strenuously
contended that the petitioners have been denied the opportunity to lead
evid6nce and to cross-examine witnesses of the complainant to demonstrate
F that they had not joined Indian National Congress. It is contended that the
orders of disqualification cast a stigma on the petitioners and adversely
affected their reputation and any provision which may lead to their
disqualification and affect their reputation has to be strictly construed. It is
further contended that there is a fundamental difference between the position
G of independent candidates and those who are elected on tickets of political
parties. It is also their contention that the Speaker has passed orders with
a pre-determined mind in haste so as to deprive the petitioners of their right
to vote in Rajya Sabha elections. The submission is that the petitioners were
entitled to explain what had appeared in the print and electronic media. The
main contention is that since principles of natural justice have been violated,
H the impugned orders are nullity.
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.]
535
Four petitioners who were elected as members of the Assembly as A
independent candidates, have been disqualified by the impugned orders under
paragraph 2(2) read with paragraph 6 of the Tenth Schedule. Paragraph 2(2)
provides that an elected member of a House who hac; 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. According to the impugned orders, the four independent members B
of the Assembly having joined Indian National Congress have incurred this
disqualification.
The Speaker, while exercising power to disqualify members, acts as a
Tribunal and though validity of the orders, thus, passed can be questioned C
in the writ jurisdiction of this Court or High Courts, the scope of judicial
review is limited as laid down by the Constitution Bench in Kihoto Hollohan
v. Zachillhu & Ors., [1992] supp.2 SCC 651. The orders can be challenged
on the ground of ultra vires or malafides or having been made in colourable
exercise of power based on extraneous and irrelevant considerations. The
order would be a nullity if rules of natural justice are violated.
D
The requirement to comply with the principles of natural justice is also
recognized in rules made by the Speaker in exercise of powers conferred by
paragraph 8 of the Tenth Schedule.
The Speaker, Haryana Legislative
Assembly, made the Haryana Legislative Assembly (Disqualification of
Members on ground of Defection) Rules, 1986 in exercise of power conferred E
by paragraph 8 of the Tenth Schedule. Rule 7(7), inter a/ia, provides that
neither the Speaker nor the Committee shall come to any finding that a
Member has become subject to disqualification under the Tenth Schedule
without affording a reasonable opportunity to such member to represent his
case and to be heard in person.
F
The question whether reasonable opportunity has been provided or not
cannot be put in a strait-jacket and would depend on the fact situation of each
case.
At the outset, we may mention that while considering the plea of G
violation of principles of natural justice, it is necessary to bear in mind that
the proceedings, under the Tenth Schedule, are not comparable to either a trial
in a court of law or departmental proceedings for disciplinary action against
an employee. But the proceedings here are against an elec;:ted representative
of the people and the judge holds the independent high office of a Speaker.
H
536
SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.
A The scope of judicial review in respect of proceedings before such Tribunal
is limited. We may hasten to add that howsoever limited may be the field of
judicial review, the principles of natural justice have to be complied with and
in their absence, the orders would stand vitiated. The yardstick to judge the
grievance that reasonable opportunity has not been afforded would, however,
B be different. Further, if the view taken by the Tribunal is a reasonable one,
the Court would decline to strike down an order on the ground that another
view is more reasonable.
The Tribunal can draw an inference from the
conduct of a member, of course, depending upon the facts of the case and
totality of the circumstances.
C
Now, we may note some of the judgments on which reliance has been
D
E
placed by learned counsel for the petitioners to support the argument that the
principles of natural justice have been violated.
The observations in John v. Rees &Anr., [1969] 2 All E.R.