# MAYAWATI v. MARKANDEY A CHAND AND ORS

- **Citation:** [1998] Supp. 2 S.C.R. 204
- **Court:** Supreme Court of India
- **Decided:** 1998-10-09
- **Case number:** Civil Appeal No. 5057 of 1998
- **Bench:** M.M. Punchhi, K.T. Thomas, M. Srinivasan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mayawati-v-markandey-a-chand-and-ors-16459
- **Pages:** 65

## Headnote

Constitution of India, 1950 :
Tenth Scheiule-Paras l(b)(c), 2(1), 3 and 6
Defection-Disqualification of member of House---Ground of defection--
Power of Speaker to disqualijj;--Speaker 's decision-Judicial review-Scope
and extent of-Challenge to Speaker's order---Ground of perversity-Test to
determine perversity-What is-Delay in completion of defection
proceedings-Effect of
House-Members-Disqualification on the ground of defectionInapplicability in case of split-Claim of split by members-Necessary
conditions to prove claim.
Defection-Speaker's order of disqualification of members-When set
E aside by Supreme Court-Power of Court to remit back the matter for fresh
decision-Power to substitute order of Speaker.
Members of the Uttar Pradesh Legislative Assembly (Disqualification
on grounds of Defection) Rules, 1987 : Rules 3, 6 to IO.
F
Defection Rules-Nature of-Non compliance with rules-Effect ofRules of procedure-Whether on par with constitutional mandate incorporated
in Tenth Schedule of the Constitution.
Words and Phrases : Expression-'Political Party'-Meaning of-In
the context of Para 2(/)(b)-Tenth Schedule-Constitutwn of India.
G
The Chief Minister ofUttar Pradesh moved a Motion of Confidence in
the Legislative Assembly of the State ofU.P. The said Motion was put to vote
on 21.10.1997. On 20.10.1997 the appellant, who is the Leader ofBahujan
Samaj Party (BSP), issued a whip to all the Members of her party directing
them to be present in the Session of U.P. Legislative Assembly on 21.10.1997
H and vote against the Motion of Confidence moved by the B.J.P. Government
204
[
MAY AW A TI v. MARKANDEY A CHAND
205
However, twelve MLAs from Bahujan Samaj Party, respondents herein, voted A
in favour of the Motion of Confidence. On 24.10.1997, the appellant filed a
petition before the Speaker under Rule 7 of the Members of Uttar Pradesh
Legislative Assembly (Disqualification on grounds of Defection) Rules, 1987
seeking a declaration that the respondents became disqualified under para
2(1)(b) of the Xth Schedule of the Constitution. In their written statement, B
respondents pleaded that a split took place between the Members ofB.S.P.
and that they along with some other MLAs, the total of which reached 23 in
number, have formed themselves into a new political party by name Janatantrik
Bahujan Samaj party. On 5.12.1997 the appellant filed an application for
amendment of the petition in which disqualification of respondents was
sought under Para 2(1Xa) of the Xth Schedule. The respondents filed additional C
written statement to the amended petition. As the names of all the 23 MLAs
who allegedly formed the split were not furnished, the Speaker directed the
respondents to file a list ofsuch names by 29.1.1998. As they failed to give
names on that day also, the Speaker gave another date as a last chance and
posted it to 9.2.1998. But respondents failed to furnish the names of such
MLAs even by that extended time, and instead again they pleaded for more D
time. On 25.2.1998 a list of26 MLAs was furnished to the Speaker claiming
that they were the MLAs who formed a split group on 20.10.1997.
The Speaker pronounced his Judgment on 23.3.1998 dismissing the
petitions for disqualification holding that (i) respondents are not liable to be E
disqualified under Paragraph 2(1Xb) of the Xth Schedule because the person
who issued the direction on 20.10.1997 is not proved to be an authorised
person; (ii) such direction was superseded by another oral direction which
was subsequently issued and hence no disqualification would visit on the
ground of non-compliance with the former direction; (iii) the whip issued on
20.10.1997 was ineffective since it was silent as to the consequences of its F
non-compliance; and (iv) the respondents were not liable to be disqualified
under Paragraph 2(1Xa) of the Xth Schedule because they belong to a faction
which came into being as sequel to a split which arose in the BSP on
21.10.1997 consisting of not less than I/3rd of

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A
B
c
D
MAYAWATI
v.
MARKANDEY A CHAND AND ORS.
OCTOBER 9, 1998
[M.M. PUNCHHI, CJ., K.T. THOMAS AND M. SRINIVASAN, JJ.]
Constitution of India, 1950 :
Tenth Scheiule-Paras l(b)(c), 2(1), 3 and 6
Defection-Disqualification of member of House---Ground of defection--
Power of Speaker to disqualijj;--Speaker 's decision-Judicial review-Scope
and extent of-Challenge to Speaker's order---Ground of perversity-Test to
determine perversity-What is-Delay in completion of defection
proceedings-Effect of
House-Members-Disqualification on the ground of defectionInapplicability in case of split-Claim of split by members-Necessary
conditions to prove claim.
Defection-Speaker's order of disqualification of members-When set
E aside by Supreme Court-Power of Court to remit back the matter for fresh
decision-Power to substitute order of Speaker.
Members of the Uttar Pradesh Legislative Assembly (Disqualification
on grounds of Defection) Rules, 1987 : Rules 3, 6 to IO.
F
Defection Rules-Nature of-Non compliance with rules-Effect ofRules of procedure-Whether on par with constitutional mandate incorporated
in Tenth Schedule of the Constitution.
Words and Phrases : Expression-'Political Party'-Meaning of-In
the context of Para 2(/)(b)-Tenth Schedule-Constitutwn of India.
G
The Chief Minister ofUttar Pradesh moved a Motion of Confidence in
the Legislative Assembly of the State ofU.P. The said Motion was put to vote
on 21.10.1997. On 20.10.1997 the appellant, who is the Leader ofBahujan
Samaj Party (BSP), issued a whip to all the Members of her party directing
them to be present in the Session of U.P. Legislative Assembly on 21.10.1997
H and vote against the Motion of Confidence moved by the B.J.P. Government
204
[
MAY AW A TI v. MARKANDEY A CHAND
205
However, twelve MLAs from Bahujan Samaj Party, respondents herein, voted A
in favour of the Motion of Confidence. On 24.10.1997, the appellant filed a
petition before the Speaker under Rule 7 of the Members of Uttar Pradesh
Legislative Assembly (Disqualification on grounds of Defection) Rules, 1987
seeking a declaration that the respondents became disqualified under para
2(1)(b) of the Xth Schedule of the Constitution. In their written statement, B
respondents pleaded that a split took place between the Members ofB.S.P.
and that they along with some other MLAs, the total of which reached 23 in
number, have formed themselves into a new political party by name Janatantrik
Bahujan Samaj party. On 5.12.1997 the appellant filed an application for
amendment of the petition in which disqualification of respondents was
sought under Para 2(1Xa) of the Xth Schedule. The respondents filed additional C
written statement to the amended petition. As the names of all the 23 MLAs
who allegedly formed the split were not furnished, the Speaker directed the
respondents to file a list ofsuch names by 29.1.1998. As they failed to give
names on that day also, the Speaker gave another date as a last chance and
posted it to 9.2.1998. But respondents failed to furnish the names of such
MLAs even by that extended time, and instead again they pleaded for more D
time. On 25.2.1998 a list of26 MLAs was furnished to the Speaker claiming
that they were the MLAs who formed a split group on 20.10.1997.
The Speaker pronounced his Judgment on 23.3.1998 dismissing the
petitions for disqualification holding that (i) respondents are not liable to be E
disqualified under Paragraph 2(1Xb) of the Xth Schedule because the person
who issued the direction on 20.10.1997 is not proved to be an authorised
person; (ii) such direction was superseded by another oral direction which
was subsequently issued and hence no disqualification would visit on the
ground of non-compliance with the former direction; (iii) the whip issued on
20.10.1997 was ineffective since it was silent as to the consequences of its F
non-compliance; and (iv) the respondents were not liable to be disqualified
under Paragraph 2(1Xa) of the Xth Schedule because they belong to a faction
which came into being as sequel to a split which arose in the BSP on
21.10.1997 consisting of not less than I/3rd of the total members of the
Legislature Party of the BSP.
G
In appeal to this Court it was contended on behalf of the appellant that
(1) Order of the Speaker suffers from jurisdictional errors based on violation
of the constitutional mandates non-compliance with Rules of natural justice
and perversity; (2) The recognition of the split by the Speaker was
unconstitutional because Rule 3 of the Disqualification Rules was not H
206
SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.
A complied with by the respondents; (3) The context in Para 2(1)(b) r"quires
to equate" Political Party" with "Legislature Party" even though the ddinition
clause reads differently.
Referring the matter to Constitution Bench, this Court,
B
HELD : PER PUNCHHI. CJ.
1. Recording of events which take place in the House, which means
either House of Parliament or the Legislative Assembly or, as the case may
by, either House of the Legislature of a State, because Clause (b) of Paragraph
3 provides that 'from the time of such split, such faction shall deemingly
become the political party. The Speaker/Chairman in the nature of his role
C when informed of a split is administratively the time keeper and he has to
be definite in respect of the time of such split. Or is there any scope for
procrastination? He is the Tribunal undoubtedly for quasi-judicial purpose.
(217-B-C]
2. In Kihoto Hollohan case*, the majority, has summed up the nature
D of the function exercised by the Speaker/Chairman under Paragraph 6(1) to
be that of a Tribunal and the scope of judicial review under Articles 136,226
and 227 of the Constitution in respect of an order passed by the Speaker/
Chairman under Paragraph 6 to be confining to jurisdictional errors only
viz. infirmities based on violation of constitutional mandate, malafides, nonE compliance with rules of natural justice and perversity. The question however
as to whether a Member of the House has become subject to disqualification
must arise for decision under Paragraph 6(1) of the Xth Schedule only on
its being referred for decision of the Speaker/Chairman and not on his own,
whose decision shall be final. The defence against disqualification incurred
on ground of defection under Paragraph 2 is separately provided in Paragraph
F 3 to say that such disqualification is not to apply to a case of split. Is not the
cognition of the Speaker/Chairman of the occurrence of split not
administrative in nature, unconnected with decision making on disqualification
or is it an adjunct thereto? Kihoto Hollohan is silent on this aspect. If the
act of cognising the time of such split is the administrative function of the
G Speaker/Chairman, the scope of judicial review of the said administrative act
would be qualitatively different than what it is when testing his quasi-judicial
order as a Tribunal, Kihoto Hol/ohan apparently confines to decision making
by the Speaker/ Chairman in Paragraph 6(1) on reference of the question
of disqualification, inviting his decision and leaves his role under paragraph
3 untouched. These determinations of importance are necessary to be made
H before the matter can be examined as to the perversity or otherwise of the
-~
MAY A WA TI v. MARKANDEY A CHAND
207
Speaker's decision obligating him at a point of time to record categorically A
when the split took place thereby pinning the time ofsuch split. Therefore,
the matter be referred to the Constitution Bench for decision.
(217-D-E-F-G-H; 218-A]
*Kihoto Hallahan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651,
referred to.
PER THOMAS, J. 1. The twelve respondents stand disqualified to be
members of the U.P. Legislative Assembly under Paragraph 2(l)(a) of the
Xth Schedule of the Constitution oflndia. (219-B]
B
2. Under para 3 of the Xth Schedule two conditions are sine qua non C
for avoiding the disqualification when any member of the House voluntarily
gives up membership of his original political party. First is that the member
concerned should have made a claim that the split in the original political
party has arisen resulting in the constitution of a group in its Legislative
Party representing a faction thereof. Second is that such group should
consist of not less than I/3rd of the members of such Legislature Party. D
(220-F]
3. Before a claim is made by a member of the House under-Paragraph
3 of the Xth Schedule a split in the political party should have arisen. Such
a split must have caused its reaction in the Legislature Party also by
formation of a group consisting of not less than one third of the members
of that Legislature Party. Clause (b) of Paragraph 3 mandates that "for the
purposes of this paragraph" such factions shall be deemed to be the original
political party of the member concerned "from the time of such split." What
is the overt act through which formation of such a group can be perceived
by the Speaker? It is in this context that Rule 3 of the Disqualification Rules
assumes relevance and importance. Unless the particulars required in the
Rule are furnished how would the Speaker know, authoritatively, of the
formation of such a group? Ordinarily such information must be furnished
E
F
as early as possible. But there can be rare cases in which it may not be
possible due to situational reasons to furnish the particulars soon after the G
formation of such a group. But the 30 days time provided in the Rule is not
to be understood as any indication to dispense with the promptitude in
furnishing those particulars. The time of 30 days fixed in Rule 3 must be
treated as the outer limit within which the Speaker should be informed of
the particulars required. So the need for compliance with Rule 3 is not a
bare formality. Insistence on compliance with the Rule is, therefore to enable H
208
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A the Speaker to decide whether the protection envisaged in the 3rd Paragraph
can be afforded to the Members concerned. [224-G-H; 225-A-Cf
4. Speaker has to consider the repercussions of non-compliance of a
particular rule in the Disqualification Rules to ascertain how far it has
affected the credibility of the case of a claimant who seeks protection under
B Paragraph 3 of the Xth Schedule. [225-D]
5. It cannot be said that rules of procedure are on par with constitutional
mandate incorporated in the Xth Schedule of the Constitution. Nonetheless,
the procedure prescribed in the Disqualification Rules are meant to be
followed for the purpose for which they are made. It is by virtue of the
C authority conferred by the Xth Schedule that Disqualification Rules are
formulated "for giving effect to the provisions of this Schedule." What would
have happened ifthe Rules have not been formulated as enjoined by Paragraph
8 of the Xth Schedule? The provisions of Xth Schedule would remain
ineffective. So the Rules cannot be read in isolation from the provisions of
D the Xth Schedule, instead they must be read as part of it. Of course, mere
violation of a Rule is not enough to constitute violation of the provisions of
the Xth Schedule. When a certain procedure is required by the Rules to be
adopted for giving effect to the provisions of the Constitution, the nonadoption of the procedure cannot be side-lined altogether as a mere procedure
and of no consequence. Compliance or non-compliance with Rules of
E procedure would very much help the authorities to decide whether there was
violation of the constitutional provision envisaged in the Xth Schedule.
[224-D-F)
F
Ravi S. Naik v. Union of India, [1994) Supp. 2 SCC 641, referred to.
6. Paragraph 6 of the Xth Schedule renders the decision of the Speaker
final. The Constitution Bench considered its validity in Kihoto Hallahan
case*. In the majority judgment it was held that the finality clause in
Paragraph 6 does not completely exclude the jurisdiction of the court under
Articles 136,226 and 227 of the Constitution. However, the Bench held that
the scrpe of judicial scrutiny is limited to ascertain whether the decision of
G the Speaker is vitiated by jurisdictional errors viz. "infirmities based on
violation of constitutional mandate malajides, non-compliance with rules of
natural justice and perversity." [222-A-B]
7. The speaker has accepted the plea of the respondents that there was
a split as envisaged in paragraph 3 of the Xth Schedule. The said finding
H can be subjected to judicial scrutiny only in the limited sphere indicated in
MA YAW A TI v. MARKANDEY A CHAND
209
Kihoto Hollohan viz. whether "the infirmities are based on violation of A
constitutional mandate, malajides, non-compliance with the rules of natural
justice and perversity." This is a case where appellant did not succeed in
showing a case of ma/a jides or non-compliance with the rules of natural
justice as for the conclusion arrived at by the Speaker. The main endeavour
was to show that the finding of the Speaker is vitiated by perversity in the B
sense that the conclusion is so unreasonable that no tribunal would have
arrived at it on the given facts. [225-E-F)
Kihoto Hollohan v. Zachillhu and Ors., [1992) Supp. 2 SCC 651,
followed.
8. The suggestion that if the conclusion reached by the Speaker is a C
possible conclusion it stands insulated from any outside interference
including by judicial exercise may lead to the situation that, no matter,
however illegal the order may be, it cannot be touched if its author is the
Speaker. Such an immunity cannot be conceded to any constitutional
functionary to be above law or to have unfettered jurisdiction to pass D
unreasonable orders with immunity. The test cannot be whether it is possible
for the Speaker to record such a conclusion, because the very fact that the
Speaker passed an order itself is the instance to show that it is possible. The
test is whether the conclusion or,.t_he finding made by the Speaker is so
unreasonable or so unconscionable that no tribunal could have arrived at it
on the given materials. Parameters for scrutinising what is unreasonable E
are, of course, nebulous. What appears to be reasonable to one man may be
unreasonable to another and vice versa. However, the test of perversity has
now bogged down to this : No conclusion can be dubbed as perverse unless
the unreasonable is of such a dimension that no authority vested with the
jurisdiction would have come to such a conclusion. Even the oft quoted F
"Wednesbury principle of reasonableness" has not changed the said approach.
[225-H; 226-A-E)
Sitaram Sugar Company Ltd. v. Union of India, [1990) 3 SCC 223;
Tata Cellular v. Union of India, [1994) 6 SCC 651; Union of India v.
Ganayutham, [1997) 7 SCC 463 and Picture House v. Wednesbury G
Corporation, (1947) 2 All England Report 680, referred to.
9. It is an undisputed fact that at no time the number of BSP MLAs
who voted in favour of the motion had reached the number 23 (which is the
minimum number necessary to constitute the required percentage for forming
a split as envisaged under the 3rd paragraph of the Xth Schedule). The H
210
SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.
A number of individual MLA who held out that they left BSP had never reached
23 either then or ever now. Thus when admittedly the number of BSP MLAs
who supported the motion had never reached the figure 23 at any time, even
subsequently and when respondents could never even mention the names of
those 23 MLAs at any time in spite of the Speaker granting opportunities
B to them for that purpose including the last opportunity it is a perverse
conclusion overlooking the aforesaid formidable circumstances that 23 MLAs
had split from the BSP on 21.10.1997. No authority vested with jurisdiction
to decide the question should ever have reached such a conclusion on the
facts and materials made available to him. [227-H; 228-A)
C
10. No opportunity whatsoever was given to the appellant to controvert
the assertions made by respondents that there was a split as envisaged in
the Third Paragraph of the Xth Schedule. The appellant had in fact strongly
controverted the stand of the respondents regarding formation of a split.
Thus the basis of Speaker's conclusion i.e. appellant has not denied the
assertion of the respondents is non-existent. [228-C-D-F; 230-A)
D
11. The finding of the Speaker that a split arose in the BSP on
21.10.1997 forming a group representing a faction consisting of not less
than 1/3rd of the members of the Legislature Party of BSP is vitiated by
perversity. The corollary of it is that t~e 12 respondents who have defected
from the BSP on the said date cannot escape from the consequence provided
E in sub-clause (1) of Paragraph 2(1) of the Xth Schedule. In the light of this
finding it is unnecessary to consider the question relating to sub-clause (b)
of Para 2(1) of the Xth Schedule because such a venture would only be of
academic utility now. [230-H; 231-A-B)
12. In cases where the authority vested with jurisdiction has to consider
F and reach a fresh decision it is necessary that after exercising judicial
scrutiny the matter must go back to such authority or fresh decision. But
in the present case the situation is different. A remit to the Speaker will not
serve any additional purpose because there is nothing further for him to
decide. As the respondents having given up their membership from the
G parent political party voluntarily have sought to insulate such severance with
the cover provided in Paragraph 3 of the Xth Schedule the only issue to be
decided is whether the respondents are entitled to such protection. When it
has been found that the aforesaid protection is not available to them under
law in substitution of the contra finding made by the Speaker its inevitable
sequitur is that all the twelve respondents stand disqualified under Paragraph
H 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would
...
'
1
MAY AW A TI v. MARKANDEY A CHAND
211
stand thus altered. However, this decision is not intended to disturb the A
. government of Sri Kalyan Singh in any manner so long as he commands
majority in the Legislative Assembly. But that aspect cannot detract the
Court from exercising power of judicial review of the impugned verdict.
[231-F-H; 232-A; 232-EJ
The Vice Chancellor, Utkal University v. S.K. Ghosh, [1954) SCR 883 B
and Mansukh Lal Vithaldas Chauhan v. State a/Gujarat, (199717SCC622,
referred to.
Re Amin, (1983) 2 All England Reports 864, referred to.
PER SRINIVASAN, J. 1. The findings arrived at by the Speaker are C
not vitiated by perversity. [266-F)
2. Para 3 of the Xth Schedule excludes the operation of para 2(l)(a)
and (b) where a member of a House makes a claim that he and any other
member of his legislature party constitute the group representing a faction
which has arisen as a result of a split in his original political party and such D
group consists of not less than one third of the members of such legislature
party. The following are the conditions for satisfying the requirements of the
para : (246-E-F-GJ
(i) A split in the original political party giving rise to a faction.
(ii) The faction is represented by a group of MLAs in the House.
E
(iii) Such group consists not less than one third of the members of
legislature party to which they belong.
3. For the purpose of para 3 all the three conditions must be fulfilled.
It is not sufficient if more than I/3rd members of a legislature party form
a separate group and give to itself a different name without there being a F
split in the original political party. Thus the factum of split in the original
party' and the number of members in the 'group' exceeding I/3rd of the
members of the legislature party are the conditions to be proved.
[246-G-H; 247-AJ
4. Rule 3 provides for furnishing of information to the Speaker. Rule
6 provides for recording of such information in a register to be maintained
by the Secretary. There is not even a provision for presumption as to the
correctness of the entries in the register maintained under Rule 6. The
entries would at best only show that such information was furnished by such
G
and such member. The entries in the register cannot have any other effect H
212
SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.
A whatever. Rule 10 enables the Speaker to issue from time to time such
directions as he may consider necessary in regard to the detailed working
of the rules. Rules 7, 8 and 9 set out the procedure for seeking disqualification
of a member. In this case the petitions for disqualifications were filed even
on 24.10.1997 long before the expiry of the period of 30 days specified in
B Rule 3. The question of disqualification had to be decided in those petitions.
The power to decide disputed disqualification under Para 6(1) of the Xth
Schedule is 'pre-eminently of a judicial complexion'. The Speaker or the
Chairman acting under Para 6(1) is a Tribunal. Can the entries in the
register maintained under Rule 6 by the Secretary have the effect of
establishing the two conditions required for para 3 of the Xth Schedule? It
C can if at all be only a piece of evidence in support of the claim of one party.
If as contended by the appellant's counsel, failure to comply with the rule will
prevent the raising of plea of split. The compliance of the rule must have the
effect of conclusively proving the conditions required for para 3. That will
lead to an anomalous situation. When a disqualification proceedings is initiated
D against the members who claim the benefit of para 3 they can defeat the
proceeding by furnishing some information to the Speaker under Rule 3 and
getting it recorded in the Register under Rule. Thus a matter which has to
be decided judicially under para 6(1) of the Xth Schedule may get decided
administratively by compliance of Rules 3 and 6. Undoubtedly such a status
cannot be given to the rules which are only procedural.[247-8-C-D-E-F-G) ·
E
5. The appellant's argument that the expression 'political party' in
para 2(1) (b) means 'political party in the House' in other words, the
'Legislature Party' runs counter to the definition contained in para l(c). The
expression 'original political party' in relation to a member of a House,
means the political party to which he belongs for the purposes of subF paragraph (1) of paragraph 2. The said expression is used in para 3 only.
Para 2, does not at all use the expression 'original political party'. This
expression in para 3 is equated to the expression 'political party' in para
2(1). The definition clause in para l(c) does not make any distinction between
sub para (a) and sub para (b) of para 2. The term 'Legislature Party' having
G been defined in para l(b) could well have been used in para 2(1) (b) instead
of the term 'political party' if the intention of the Parliament was to refer
only to the Legislature Party. [240-E-F-G)
6. There is another feature in para 3(b) which negatives the appellant's
argument. According to para 3(b), from the time of split in the original
H political party such as the one referred to in the first part of the para. The
}r
MAY AW A TI v. MARKANDEY A CHAND
213
faction referred to therein shall be deemed to be the political party to which A
the concerned member belongs for the purposes of sub-para (1) of para 2 and
to be his original political party for the purposes of paragraph 3. The entire
sub-paragraph (1) of para 2 is referred to therein meaning thereby both
clauses (a) and (b) of the sub-para (1) and no distinction is made between the
two clauses. Hence for the purposes of clause (a) as well as clause (b) the B
faction referred to in the first part of para 3 shall be deemed to be the
original 'political party, mentioned in para 3. Thus it is clear that 'political
party' in clause (b) of sub-para (1) of para 2 is none other than 'original
political party' mentioned in Para 3. [240-H; 241-A-B-C)
7. The argument that the context in Para 2(1) (b) requires to equate C
'political party' with 'legislature party' even though the definition clause
reads differently is not acceptable. [241-D)
8. There is no merit in the contention that the Legislature Party may
have to take decisions on urgent matters in the House and as it represents
the original political party in the House. Whatever direction is issued by the D
Leader of such Legislature Party must be regarded as a direction issued by
the political party. When the provision in the Constitution has taken care
to make a distinction between the Legislature Party and the original political
party and prescribe that the direction should be one issued by the political
party or by any person or authority authorised in this behalf, there is no
meaning in saying that whatever the Leader of the Legislature Party directs E
must be regarded as that of the original political party. [241-F-G)
9. If the direction referred to in para 2(1) (b) is to be restricted to the
two kinds referred to in the said passage, there is no doubt that .'political
party' in para (1) (b) refers only to the 'original political party' as it is only
such party which could issue such directions. In such matters, the members F
of the House would certainly be given sufficient notice in advance and original
political party would have sufficient time to take decisions and issue directions.
[242-H; 243-A)
10. No distinction can be made between sub para (a) and sub para (b)
of Para 2(1) viz a viz the meaning of the 'political party' and that it means G
only the original political party. [243-G)
D. Sripada Rao, "Anti-Defection Law-Split in Parties", "Journal of
Parliamentary Information", (1999) 39 p. 104-105, referred to.
11. The power the judicial review viz a viz the order of the Speaker H
214
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A under Paragraph 6(1) of the Xth Schedule is confined to jurisdictional
errors only based on violation of constitutional mandate, ma/a fides, non
compliance of rules of natural justice and perversity. (237-E)
12. Merely because there is a delay in concluding the hearing, the
order cannot be said to be perverse. The Speaker has framed the question
B properly as to whether a split as alleged by the respondents had taken place
on 21.10.1997 and whether it was supported by acceptable evidence. This
Court in exercise of its power of limited judicial review has only to see
whether the findings arrived at by the Speaker are perverse. It cannot be
accepted as a matter of law that delay in the completion of proceedings would
C by itself vitiate the order passed by him. But it is absolutely necessary for
every Speaker to fix a time schedule in the relevant Rules for disposal of
the proceedings for disqualification of MLAs or MPs. AH such proceedings
shall be concluded and orders should be passed within a period of three
weeks from the date on which the petitions are taken on file.
D
E
(256-G-H; 257-A-B)
Kihoto Hollohan v. Zachillhu and Ors., [1992) Supp. 2 SCC 651;
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947)
Vol. 2 AH England Reports 680; Tata Cellular v. Union of India, (1994) 6
SCC 651 and Union of India and Anr. v. V.G. Ganayutham, (1997) 7 SCC
463, referred to.
Theatre de Luxe (Halifax) Ltd. v. Gledhill, 5(1915) 2 K.B. 49; CCSU
v. Minister for Civil Service, (1984) 3 All E.R. 935 and Notitinghamshira
Country Council v. Secretary of the Environment and Anr., appeal (1986) Vol.
l All E.R. 199 and Re Amin, (1983) 2 AH E.R. 864, referred to.
F
13. The question before this Court is not whether in the facts and
G
circumstances of ~he case there was a split as alleged by the respondents
on 21.10.1997 but the question is whether the conclusion arrived at by the
Speaker after taking note of all the aforesaid circumstances for and against
the respondents is so unreasonable or absurd or perverse that he must have
taken leave of his senses. (265-H; 266-A)
I 4. The Speaker has not left out any relevant material from
consideration: nor has he referred to any irrelevant matter. In the facts and
circumstances of this case it cannot be said that no reasonable or sensible
person who had applied his mind to the question to be decided could have
armed at the findings given by the Speaker. While dealing with the question
H of perversity it should not be forgotten that there was no bias or malafide
MAY AW A TI v. MARKANDEY A CHAND
215
on the part of the Speaker. If the materials on record are considered on that A
basis it can at best be said that two conclusions were possible and the
Speaker has chosen one of them. In the circumstances one cannot find any
perversity in the findings rendered by the Speaker. [266-B-C)
15. All circumstances referred to and relied on by the Speaker are
quite relevant and germane for deciding the issue whether there was split B
on 21.10.1997 and whether the group led by Markandeya Chand had not less
than l/3rd members of the BSP Legislature Party. Apart from this the
Speaker has considered the various facts relied on by the appellant and
discussed the same. All the circumstances relied on by the appellant have
been referred to and discussed in detail by the Speaker in his order. If any
of them had been ignored, it could be said that his order is vitiated. But that C
is not the case here. When there is no bias or mala fide, the acceptance of
one party's statement on facts and rejection of the other cannot be canvassed
before this Court. [261-C-D; H; 262-A)
16. It has been rightly held by the Speaker that there is no material D
whatever to hold that the direction issued on 20.10.1997 was issued by the
BSP or that the appellant was authorised by the BSP to issue such a
direction. [243-H; 244-A)
17. There is also no difficulty in accepting the finding of the Speaker
that the direction dated 20.10.1997 was not in accordance with the law laid E
down by this Court in 'Hollohan '. Hence the Speaker has not violated para
2(1) (b) of the Xth Schedule. [244-B; E)
18. The Speaker has found on the basis of the records that the appellant
instructed the members of the BSP to indulge in violence and disrupt the
proceedings in the Assembly on 21.10.1997. It is also found that the allegations F
made by the respondents that the members of the BSP were kept under
threat by the appellant and prevented from entering Lucknow. In view of such
finding also which is supported by records, the discretionary jurisdiction
under Article 136 of the Constitution should not be exercised in favour of
the appellant. [268-B)
19. There is no violation of principles of natural justice in the Speaker's
taking on record the two affidavits filed by the respondents on 25.2.1999.
The contention that the appellant had no opportunity to controvert the affKlavits
filed before the Speaker on 25.2.1998, 4.3.1998 and 10.3.1998 cannot be
accepted. Even if it is so there is no violation of principles of natural justice.
G
It has not been proved by the appellant that there is a failure of substantial H
216
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A justice. In the absence of bias and malafides, the contention that the order
of the Speaker is vitiated by violation of principles of natural justice has to
fail. [255-E; 256-D; 253-B)
B
The Chairman Board of Mining Examination and Chief Inspector of
Mines and Anr. v. Ramjee, (1977) 2 SCC 256, referred to.
20. In view of the above position, it is not necessary to consider the
question whether this Court should decide the entire matter here in the
event of setting aside the order of the Speaker or remand the matter for
fresh disposal by the Speaker in accordance with the judgment of this Court.
However, for the sake of completion, it is necessary to express opinion on
C that question too. It is not the function of this Court to substitute itself in
place of the Speaker and decide the questions which have arisen in the case.
When the Xth Schedule has expressly constituted the Speaker or the
Chairman as the case may be to decide the question of disqualification and
attach finality thereto. It is not for this Court to consider the facts and decide
D the said question by substituting itself in the place of the Speaker. If the
order of the Speaker is set aside on any of the grounds mentioned in
'Hollohan' case by exercising the power of limited judicial review, the
consequential course to be adopted is to leave the matter to the Speaker to
decide afresh in accordance with law. [266-G-H; 267-H; 268-A)
E
F
Bengal Chemicals Pharmaceutical Works Ltd. Calcutta v. Their
Workmen, [1959) Supp. 2 SCR 136; Hindustan Tin Works Pvt. Ltd. v.
Employees of Hindustan Tin Works Pvt. Ltd., [1979) 1 SCR 563 and Vice
Chancellor, Utkal University v. S.K. Ghosh, [1954) SCR 883, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5057 of
1998 etc.
From the Judgment and Order dated 23.3.98 of the Speaker Legislative
Assembly, U.P.
Kapil Sibal, Dr. L.M. Singhvi, Ashok H. Desai, R.K. Jain, Rakesh Dwivedi,
G M.R. Sharma, Ranjit Kumar, Ashok Nigam, Ms. Anu Mohla, Chander Bhushan,
Rajesh Pathak, A. Kumar, Ajit Kumar Singh, Pallav Sisodia, Manoj Goel, Ms.
Richa Goyal, Anurag Dubey, Ms. Rani Chhabra, S.N. Bhat, N.P.S. Panwar,
Ajay K. Agarwal, Ms. Alka Agarwal, Ms. Anamica Agarwal, Manoj Goel, R.C.
Verma, Chatanya Siddarth, Kamlendra Misra, K.N. Balgopal, Devendra Singh
H Ms. Diva Singh, A.P. Mukunden and Y.P. Dhingra for the appearing parties.·
.•
MAYAWAT!v. MARKANDEYACHAND [PUNCHHl,CJ.]
217
The Judgments of the Court were delivered by :
A
PUNCHHI, CJ. I have bestowed great care in reading the two elaborate
but sharply cleaving draft Judgments prepared by my learned brethren, K.T.
Thomas, J. and M. Srinivasan, J. resting on the provisions contained in the
Tenth Schedule of the Constitution. I need to emphasise at the outset, in the
context above, the importance of recording of events which take place in the B
House, which means either House of Parliament or the Legislative Assembly
or, as the case may be, either House of the Legislature of State, because
Clause (b) of Paragraph 3 provides that from the time of such split, such
faction shall deemingly become the political party. The Speaker/Chairman in
the nature of his role when informed of a spilt is administratively the time C
keeper and he has to be definite in respect of the time of such split. Or is there
any scope for procrastination? He is the Tribunal undoubtedly for quasijudicial purpose.
In Kihata Hallahan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651, the
majority, in Paragraph I 09, has summed up the nature of the function exercised D
by the Speaker/Chairman under Paragraph 6( I) to be that of a Tribunal and
the scope of judicial review under Articles 136, 226 and 227 of the Constitution
in respect of an order passed by the Speaker/Chairman under Paragraph 6 to
be confining to jurisdictional errors only viz., infirmities based on violation of
constitutional mandate, malajides, non-compliance with rules of natural justice E
and perversity. The question however as to whether a Member of the House
has become subject to disqualification must arise for decision under Paragraph
6(1) of the Tenth Schedule 0nly on its being referred for decision of the
Speaker/Chairman and not on his own, whose decision shall be final. The
defence against disqualification incurred on ground of defection under
Paragraph 2 is separately provided in Paragraph 3 to say that such F
disqualification is not to apply to a case of split. Is not the cognition of the
Speaker/Chairman of the occurrence of split not administrative in nature,
unconnected with decision making on disqualification or is it an adjunct
thereto? Kihoto Hollohan is silent on this aspect. If the act of cognising the
time of such split is the administrative function of the Speaker/Chairman, the
scope of judicial review of the said administrative act would, to my mind, be G
qualitatively different than what it is when testing his quasi-judicial order as
a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 of the report,
apparently confines to decision making by the Speaker/Chairman in Paragraph
6( I) on reference of the question of disqualification, inviting his decision, and
leaves his role under Paragraph 3 untouched. These determinations of H
218
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A importance, in my view, are necessary to be made before the matter can be
examined as to the perversity or otherwise of the Speaker's decision, obligating "
him at a point of time to record categorically when the split took place thereby
pinning the time of such split. I opine therefore that the matter be referred to
the Constitution Bench for decision.
B
THOMAS, J. Leave granted.
Twelve MLAs of Bahujan Samaj Party ("BSP" for short) crossed floor
of the House in the Legislative Assembly of the State of Uttar Pradesh (UP)
and voted in favour of a motion of confidence moved by the Chief Minister
of the State. Soon thereafter all those twelve MLAs were made Ministers in
C the State cabinet headed by Chief Minister Shri Kalyan Singh. Appellant (Ms.
Mayawati) who is the leader of BSP Legislature Party complained that the
twelve MLAs who defected (they are arrayed as respondents in this appeal)
have incurred disqualification for membership of the Assembly. The Speaker
of the Assembly, by the impugned order, exonerated the respondents from the
D tentacles of disqualification envisaged in the Xth Schedule to the Constitution
of India. Hence this appeal by special leave.
There is no need to elaborate on the facts as they, by themselves, are
compendious. Elections held to the Uttar Pradesh Vidhan Sabha (Legislative
Assembly) in 1996 resulted in a hung Assembly as no political party secured
E absolute majority. However, appellant Ms'. Mayawati became Chief Minister
of the State as her party consisting of 67 MLAs in the Assembly was
supported by the MLAs belonging to Bhartiya Janata Party (BJP). But she
demitted the office of Chief Minister on 29.9.1997 as per an understanding
between the aforesaid two parties. On the next day Shri Kalyan Singh, leader
F of the BJP Legislature Party became Chief Minister on the assumption that
BSP would support him. But contrary to the said assumption BSP withdrew
support to Kalyan Singh Government on 17.10.1997. Kalyan Singh was
thereupon directed by the Governor to prove that he enjoyed the support of
majority MLAs in the Assembly. On 20.10.1997 the appellant Ms Mayawati
issued a whip to all the MLAs of her party in the following terms.
G
"You are hereby informed that you should be present in the Session
of the UP Legislative Assembly on 21.10.1997 from 11 A.M. till the end
of the sitting and vote against the Motion of Confidence moved by
the BJP Government".
H
On 21.10.1997 twelve MLAs from BSP (respondents) voted in favour of
MAYAWAT!v. MARKANDEYACHAND[THOMAS,J.]
219
the motion of confidence moved by Shri Kalyan Singh. A violent pandemonium A
broke out inside the House in which a number of MLAs were assaulted by
some other members and consequently no business could be transacted. On
24.10.1997 appellant filed a petition before the Speaker under Rule 7 of the
Members of Uttar Pradesh Legislative Assembly (Disqualification on Grounds
of Defection) Rules, 1987, which will hereinafter be referred to for convenience, B
as "Disqualification Rules", for a declaration that the twelve respondents
became disqualified as per Paragraph 2( 1 )(b) of the Xth Schedule of the
Constitution. When respondents took up the plea that they, along with some
more MLAs, the total of which reached 23 in number, have formed themselves
into a new political party by name Janatantrik Bahujan Samaj Party (for short
JTBSP). Appellant thereupon moved for amendment of the petition on 5.12.1997 C
seeking incorporation of an additional ground for disqualification which is
envisaged in Paragraph 2(l)(a) of the Xth Schedule.