TaxTMI 
TaxTMI 
TaxTMI 
2004 (10) TMI 581
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....candidate. 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 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 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 House in view of paragraph 2(1)(a) of the Tenth Schedu....
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....y the people and expressed in the press that corruption and bribery were behind some of these defections. (See Kihoto Hollohan v. Zachillhu & Ors. 1992 (Supp) 2 SCC 651 paras 5 and 6). 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 : 1. 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 the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance. 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 ....
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....ouse, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) 'paragraph' means a paragraph of this Schedule. 2. Disqualification on ground of defection (1) 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 party; or (b) if he 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) (2) An elected member of a House who has been e....
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....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 disqualified for being a member of the House and they are enumerated in sub-paras (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 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 condoned by such political party within fifteen days....
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....Constitution itself, unlike a statutory provision, it effects the 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 of a State within the meaning of Article 212, as the case may be. These are identical 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 Bench in Kihoto Hollohan v. Zachillhu & 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 Sch....
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....s 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 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 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 & Ors. v. Hon'ble Speaker Tamil Nadu Legislative Assembly & Ors. 1996 (2) SCC 353 the appellants had been elected as members of the Legislative Assembly in 1991 as candidates of AIDMK party but they were expelled from the said party on 8th January, 1994. The Speaker declared them as unattached members of the Assembly on 16th March, 1994. Sometime thereafter, an MLA informed the Speaker that the appellants h....
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....nd 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 for election as such member." 11. In the present case, the Chairman 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 drawn that he has given up his membership of Indian National 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 paragraph 2(1)(a) of the Schedule and the decision of the Chairman is perfectly correct. 12. Paragraph 8 gives the rule making powers and it provides that the Chairman or the Speaker of a House may make rules for giving effect to the provisions of the Tenth Schedule. Clause (d) of sub-para (1) of this rule provides that the Rule may provide the procedure....
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....ining 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 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.(see Section 59 in chapter Delegated Legislation in Francis Bennion's Statutory Interpretation 3rd Edn.). The aforesaid principle will apply with greater rigour 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. 14. Shri Mishra has submitted that as provided in sub-rule (6) of Rule 6 of the Rules, the petition filed by Shri Salman Rageev had to ....
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....e to be recorded. Similarly, for application of paragraph 4, inquiry has to be made whether the original political party merged with another political party, whether the member of the House has become member of such other political party or, as the case may be, of a new political party formed by such merger or whether he has not accepted the merger and opted to function as a separate group. 16. Sub-rule (1) of Rule 6 says that 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 the said Rule and sub-rule (6) of the same Rule provides that every petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The heading of Rule 7 is 'PROCEDURE". Sub- rule (1) of this Rule says that on receipt of petition under Rule 6, the Chairman shall consider whether the petition complies with the requirement of the said Rule and sub-rule (2) says that if the petition does not comply with the requirement of Rule 6, the Chairman shall dismiss the ....
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....nth 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. 17. The petition filed by Shri Salman Rageev was signed and verified in the following manner : "All the facts stated in this petition are true and correct to my knowledge and belief and no part of it is false. Sd/- (Salman Rageev) M.L.C. 10.06.2004" 18. There cannot be any dispute that sub-rules (1), (2) and (3) of Order VI Rule 15 CPC were complied with. Learned counsel for the petitioner has, however, laid great emphasis on the fact that Shri Salman Rageev had not filed any affidavit in support of his petition and consequently the provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the person verifying the pleadings shall also furnish an affidavit in support of his pleadin....
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....ar Legislative Council did not afford an opportunity of personal hearing to the petitioner and he also relied upon certain material, copy of which was not furnished to the petitioner and consequently the rules of natural justice have been violated. We do not find any substance in the contention raised. Initially, the Secretary of the Bihar Legislative Council sent a letter dated 19th May, 2004 to the petitioner stating that the petitioner had contested the election for Bihar Legislative Council as a candidate of Indian National Congress and that information had been received that he had contested the Parliamentary Election, 2004 as an independent candidate. Attention of the petitioner was invited to Article 191 (2) and Tenth Schedule to the Constitution of India and he was asked to submit his clarification within seven days. The petitioner gave a reply to this letter on 25th May, 2004 wherein he requested to supply him a photocopy of the information received by the Secretariat of Bihar Legislative Council and prayed for 15 days' time to explain his position after obtaining advice from legal experts. Thereafter, Shri Salman Rageev gave a petition to the Chairman on 10th June, 20....