TaxTMI 
TaxTMI 
TaxTMI 
2006 (12) TMI 514
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.... Adv. For the Respondent In WP 287/2004 292/2004 : Mr. R.N. Trivedi, Sr.Adv., Mr. Mahendra Anand, Sr. Adv., Mr. Aditya Kumar Choudhary, Adv. Mr. Manish Mohan, Adv., Ms. Shweta Garg, Adv., Mr. Surya Kant, Adv. For the State of Haryana : Mr. Ajay Siwach, AAG., Mr. Sandeep Sharma, Adv., Mr. T.V. George, Adv. In WP 290-291/2004 & 293-294/2004 : Mr. Shanti Bhushan, Sr. Adv. , Mr. Rakesh K. Khanna, Sr. Adv., Mr. Aditya Kumar Choudhary, Adv., Mr. Sanjai Pathak, Adv., Mr. Manish Mohan, Adv., Mr. Ugra Shankar Prasad, Adv. For Respondent No. 5: Mr. Jaspal Singh, Sr. Adv., Mr. Aditya Kumar Choudhary, Adv., Mr. Arun Kumar Beriwal, Adv. JUDGMENT Y. K. SABHARWAL, CJI. 1. These petitions challenge the legality of orders 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 members of the Assembly. Petitioner Jagjit Singh (W.P.No.287 of 2004) belonged to a political party na....
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....lit by passing a unanimous Resolution. The split was recognized by central leadership of NCP. 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 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 of petitioner is that on 30th April, 2004 merger of Democratic Dal of Haryana 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 ....
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....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. 8. Complaints were also filed against petitioners in Writ Petition Nos.290, 293-294 seeking their disqualification on similar grounds. The Speaker, respondent 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 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 counsel for the petitioner at 3.30 p.m. on 24th June, 2004 with a direction to file reply thereto by 10 a.m. on the next date i.e. 25th June, 2004. On 25th June, 2004, petitioner filed a short reply to the main petition alleging malafides against the Speaker and the Chief Minister a....
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....rs who were elected as members of the Assembly as 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 has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election. According to the impugned orders, the four independent members of the Assembly having joined Indian National Congress have incurred this disqualification. 10. The Speaker, while exercising power to disqualify members, 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 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. 11. The requ....
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....of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events". 15. The argument is that if opportunity to lead evidence and cross-examination had been granted to the petitioners, they would have shown that they had not joined Indian National Congress despite what had appeared in print and electronic media. 16. Reliance is also placed on the observations of Justice Chinnappa Reddy in National Textile Workers' Union & Ors. v. P.R. Ramakrishnan & Ors. [(1983) 1 SCC 228] in His Lordship's concurring opinion while dealing with a litigation between two rival groups of shareholders of a Company to take over the Company. While considering the question of right of hearing claimed by the worker....
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....statute says only so and so will be heard and no other, of course, no other will be heard. If the statute does not say who may be heard, but prescribes the procedure for the hearing, that procedure must be followed by every one who wants to be heard and what applies to one will apply to the other. If creditors and contributories desire to be heard and are heard, so shall workers. After hearing the workers, the court may say that, on the facts and circumstances of the case, it is not necessary to hear them further; but they cannot be turned away at the very threshold. It may be that it is not for them to support or oppose the winding- up petition for any of the traditional reasons. But they may make suggestions which may avert winding-up, save the company and save their own lives. They may have suggestions to make for restructuring the company or for the transfer of the undertaking as a running business. The workers themselves may offer to run the industry forming themselves into a society. They may have a myriad suggestions to make, which they can do if they are allowed to be heard, If every holder of a single share out of thousands may be heard, if every petty creditor may be hear....
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....olation of principles of natural justice. 21. In Ravi S. Naik v. Union of India and Ors. [1994 Supp. (2) SCC 641], challenging the disqualification order passed by the Speaker of the Goa Assembly, it was urged that reasonable opportunity was denied in as much as sufficient time was not granted to respond. Further, it was urged that the Speaker had referred to certain extraneous materials and circumstances, namely, the copies of the newspapers that were produced at the time of hearing and the talks which the Speaker had with the Governor and had denied to the petitioner an opportunity to adduce evidence. Noticing the principles of natural justice, the decision of this Court in Kihoto Hollohan case, Mrs.Maneka Gandhi v. Union of India & Anr. [(1978) 1 SCC 248], Union of India and Anr. v. Tulsiram Patel [(1985) 3 SCC 398] and reiterating that an order of an authority exercising judicial or quasi judicial functions passed in violation of the principles of natural justice is procedurally ultra vires and, therefore, suffers from a jurisdictional error and that is the reason why in spite of finality under paragraph 6 (1) of the Tenth Schedule, such a decision is subject to judicial revie....
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....ngress? Had they availed of the opportunity and pointed out how the recording was not correct and it was doctored and then not permitted to lead evidence, the argument that there has been violation of principles of natural justice may have carried considerable weight. The petitioners cannot be permitted to sit on the fence, take vague pleas, make general denials in the proceedings before the Tribunal of the nature under consideration. 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 court, on facts of a case despite denial of opportunity to lead evidence, may come to the conclusion that reasonable opportunity has been afforded to the person aggrieved. The principles of natural justice are flexible and have to be examined in each case. 25. The question to be asked in the ultimate analysis would be whether the person aggrieved was given a fair deal by the authority or not? Could a reasonable person, under the circumstances in which Tribunal was placed, pass such an order? Answer to these quest....
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....n the impugned orders by the Speaker. It was alleged i9n the complaints which were served on petitioners on 16th June, 2004 that they had joined the political and legislature parties of Indian National Congress as members thereof. The said fact had been widely reported in all daily newspapers in English as well as vernacular language dated 15th June, 2004. True copies of the news items as published in newspapers reporting their having joined the Indian National Congress were filed. According to those reports, the leader of the Opposition in the State Assembly had stated that these members were taken to Congress President and had joined the said party. Copies of the news items as appearing in '"The Tribune", "The Times of India", "Hindustan Times", "Punjab Kesari" and "Dainik Jagran" were filed with the complaints. It was further alleged that besides the news reports appearing in the print media, actions of these members joining the political and legislature parties of Indian National Congress were widely reported by the electronic media including Zee News television channel, Aaj Tak television channel and Haryana News of Punjab Today television channel. 28. Along with the appl....
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....arty in respect of proceeding held on 16th June, 2004. 29. It has to be noted that on 24th June, 2004 counsel representing the petitioners were asked by the Speaker to watch the interviews conducted in New Delhi on 14th June, 2004 by Zee News and Haryana News (Punjab Today Television Channel) which was available on the compact disc as part of the additional evidence with application dated 23rd June, 2004 filed by the complainant. The counsel, however, did not agree to watch the recording which was shown on these two channels. The copies of the application dated 23rd June, 2004 were handed over to the counsel and they were asked to file the reply by 10 a.m. on 25th June, 2004. In the replies, petitioners merely denied the contents of the application without stating how material by way of additional evidence that had been placed on record was not genuine. 30. It is evident from the above facts that the petitioners declined to watch the recording, failed to show how and what part of it, if any, was not genuine but merely made general denials and sought permission to cross-examine Ashwani Kumar and opportunity to lead evidence. 31. The Speaker considered the request of the petitione....
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.... by the Haryana News (Punjab Today Television Channel) authenticates the place of the interview as the residence of Mr. Ahmed Patel at 23, Mother Teresa Crescent in Delhi which interview as per the certificate was conducted by the correspondent of the said Television Channel, namely Shri Amit Mishra on 14.6.2004. the same certificate P-12 also authenticates the coverage of the CLP meeting held in Chandigarh on 16.6.2004 conducted by their correspondent Mr. Rakesh Gupta. Therefore, the electronic evidence which as per the petitioner is supplementary to the evidence of Print Media already on the record deserves to be taken on the record as it is admissible as per law." 33. The Speaker after holding that the petitioners have made vague allegations, without producing in support any material and evidence, has further concluded as under : "As there is no controversy regarding the status of the respondent from February 2000 and before 14.6.2004, the dispute primarily arises regarding his true status as on 14.6.2004 onwards. In order to resolve the matter, the evidence produced and placed on the record by the petitioner has to be considered. The petitioner has placed on record firstly t....
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....ingh Bisla, MLA 5. Shri Dariyab Singh, MLA 6. Shri Dev Raj Deewan, MLA (iii) The above named six Members of Haryana Vidhan Sabha were interviewed by Zee News Television Channel and Haryana News (Punjab Today Television Channel) on 14.6.2004 at 23, Mother Teresa Crescent, New Delhi which interview was witnessed by Shri Ashwani Kumar as corroborated by him. (iv) All the above named six members are seen in the company of Senior Congress Party Functionaries and Leaders during the course of the above said interviews by the Television Channels, wherein they admitted and acknowledged the fact that they had joined the Congress Party. (v) Out of the above named six Members, three members, namely, Shri Dev Raj Deewan, Shri Rajinder Singh Bisla and Shri Jai Parkash Gupta are seen participating in the meeting of the CLP held on 16.6.2004 in the premises of the Haryana Vidha Sabha." 34. In the impugned orders, respondent No. 2 has further noted that while examining and considering the aforenoted electronic evidence, he was fortified by the fact that being the Speaker of the Haryana Vidhan Sabha, on many occasions as well as during the Sessions of the House, he has seen and heard thes....
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.... in a fair manner and by complying with the principles of natural justice. However, the principles of natural justice cannot be placed in a strait-jacket. These are flexible rules. Their applicability is determined on the facts of each case. Here, we are concerned with a case where the petitioners had declined to avail of the opportunity to watch the recording on the compact disc. They had taken vague pleas in their replies. Even in respect of signatures on CLP register their reply was utterly vague. It was not their case that the said proceedings had been forged. The Speaker, in law, was the only authority to decide whether the petitioners incurred or not, disqualification under the Tenth Schedule to the 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. We are of the view that the 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 necessity under these circumstances would also be applicable. No illegality c....
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....ce. Keeping in view all these factors, we requested Hooda Ji in this context. Now when such sacrificing leaders have come in India, we also want to serve Congress Party. Smt. Sonia Ji has given her blessings. We will serve the Congress Party physically, mentally and financially from very today. HARYANA NEWS CORRESPONDENT Have you imposed any condition for that? SHRI DEV RAJ DIWAN Condition for what? We have come only to serve the Congress Party being an MLA, we have already been serving the people of Constituency. Now we will serve Congress Party and will also serve people of Constituency while remaining in Congress. Thank you. PETITIONER- RAJINDER SINGH BISLA: ZEE NEWS CORRESPONDENT Why have you decided to join Congress Party at the time when assembly general elections are drawing near? SHRI RAJINDER SINGH BISLA: - We have decided to join Congress Party keeping in view the conditions of the country because dedicated and right forces can fight against the communal forces only under the leadership of Smt. Sonia Gandhi. Today, after meeting Smt. Sonia Gandhi, we have joined Congress Party under the leadership of Shri Bhupinder Singh Hooda. Now, we will serve and....
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....ngressmen. Our family is Congressman so far and have been members of Congress Party for the last three decades. After 1996, last time in 2000-Assembly Elections, there has been some problem with me in getting party ticket. Public brought forth me as an independent candidate and I won elections as an independent candidate. Smt. Sonia Gandhi has made a great sacrifice as she did not accept the chair of Prime Minister and put an example in the world. She has made Sardar manmohan Singh as Prime Minister. We have been impressed by this step of Smt. Sonia Gandhi and, therefore, we have come back to our home. We will be in the Congress Party as follower of Smt. Sonia Gandhi and abide by the dictates of Smt. Sonia Gandhi as workers of Congress Party and will step forward in unity while remaining in Congress Party. PETITIONER- BHIM SAIN MEHTA: HARYANA NEWS CORRESPONDENT Your good name please? SHRI BHIM SAIN MEHTA: I, Bhim Sain Mehta, MLA from Indri, District Kaul. I was elected as an independent MLA for last two consecutive terms. It is a matter of great happiness that we have joined our original home because my initial entry into politics has been in Congress Party. In 1979, I ha....
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.... 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 from any such infirmity. We are unable to accept the contention that the petitioners were not given a fair deal by the Speaker and principles of natural justice have been violated. 41. It was also contended that paragraph 2(2) of the Tenth Schedule deserves to be strictly construed. The submission is that the word 'join' in Paragraph 2(2) deserves a strict interpretation in view of serious consequences of disqualification flowing therefrom on an order that may be made by the Speaker. Paragraph 2(2) of the Tenth Schedule reads as under: "2(2). An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election." 42. As noted earlier, the object of the defection law has to be borne in mind. The question to be considered is whether a member formally joining a political party is the requirement so as to earn disqualification or the factum o....
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....d umbrella of paragraph 3 of the Tenth Schedule. The petitioners have been disqualified by the impugned order in exercise of power under paragraph 2(1) and paragraph 6. Paragraph 2(1) is subject to paragraphs 3, 4 and 5. 47. In the present case, the question is of interpretation of paragraph 2(1) and paragraph 3 of the Tenth Schedule which read as under: "2. Disqualification on ground of defection- (1) Subject to the provisions of paragraphs 3, 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. 3. Disqualification on ground of defection not to apply in a case of split - Where a member o....
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....tion. In this Schedule, unless the context otherwise requires, (a) ........ (b) 'legislature party', in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 3 or, as the case may be, paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions; (c) 'original political party', in relation to a member of a House, means the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2; (d) ......." 50. The reliance of the petitioners is on the words 'unless the context otherwise requires'. The contention is that in the context of a recognized single member legislature party, the definition has to be adopted suitably so as not to deny the benefit of paragraph 3 to a sole member constituting the legislature party of a political party. 51. The question, however, is not only of the definition of the expression 'legislature party' or of the words 'unless the context otherwise requires' in paragraph 1 of the Tenth Schedule, but is also of t....
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....iled an interim reply on 16th June, 2004 and sought four weeks' time on the ground that due to summer vacation of the Court, senior advocates were not available. Petitioner has further alleged that he received a telephone call from the Speaker on 24th June, 2004 when the Speaker told him that if he abstains from voting in Rajya Sabha, the disqualification can be avoided. The impugned order disqualifying the petitioner on account of defection was passed on 25th June, 2004 under paragraph 2(1)(a) of the Tenth Schedule. 54. The facts in the case of Karan Singh Dalal (Writ Petition No. 292/2004) are almost identical except that he belonged to Republican Party of India (RPI), in respect whereof a similar split as in the case of Jagjit Singh was made with the same dates and same reasons. 55. The question for determination is about the applicability of paragraph 3 of Tenth Schedule to the petitioner on the facts abovenoticed, namely, applicability of protection of paragraph 3 to a single member party in a legislatiure. 56. Paragraph 3 requires the following conditions to be complied with : (a) a split in the original political party giving rise to a faction; and (b) faction is ....
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....of what is stated in the next paragraph, i.e., paragraph 38, namely : "As to whether there was a split or not has to be determined by the Speaker on the basis of the material placed before him." 60. Apart from the above, 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 the Speaker so as to take benefit of paragraph 3, the Speaker, without being satisfied even prima facie 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. We are of the view that for the purposes of paragraph 3, mere making of claim is not sufficient. The prima facie proof of such a split is necessary to be produced before the Speaker so as to satisfy....
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.... 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 1(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 which he was set up as a candidate for election as such member'. 62. In support of the contention that for the purposes of paragraph 3 of the Tenth Schedule, the split in a State unit is the requirement, reliance has been placed on a Full Bench decision of Punjab High Court in the case of Madan Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha [The Punjab Law Reporter Vol.CXVII (1997-3) page 374)]. In the said case, it was held : "A reading of these provisions clearly indicate that importance was given to the House of the Legislative Assembly of the State. The original political party in relation to a member of the House is the political party to which he belongs. Thus, it is clear that the Parliament intended to treat the State unit of a political party as a separate entity for the purpose of determining whether there is any disqualification o....
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....y were elected. According to the petitioner, these members joined Congress (I) party. The petitioner before the High Court was a leader of the original political party, i.e., Bhartiya Janata Party. Legislature Party made a complaint to Speaker to disqualify these members and stated that there was no split in the party as claimed by Respondents 3 and 4. The Deputy Speaker, however, held that there was split in the party and the original party had six seats and respondents 3 and 4 constitute one-third members of the Legislature party and, therefore, they are not disqualified in view of paragraph 3 of the Tenth Schedule and their original political party would be Bhartiya Janata Party (Punjab). The Full Bench, after rightly holding that 'the original political party in relation to a member of the House is a political party to which he belongs' erroneously held that 'the Parliament intended to treat the State unit of a political party as a separate entity for the purpose of determining whether there is any disqualification of a member of the House of that State Legislature'. In the case of split, one-third members of State Legislature belonging to that political party m....
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....paragraphs 2, 3 and 4, as the case may be, to mean the group consisting of all members of that House for the time being belonging to that political party in accordance with the said provisions, namely, paragraphs 2, 3 and 4, as the case may be. Paragraph 2(1) read with the explanation clearly points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party. That is a matter between the member and his party and has nothing to do so far as deeming clause in the Tenth Schedule is concerned. The action of a political party qua its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule. We reject the plea solely based on Clause 1(b) of the Tenth Schedule." 66. The Punjab case is not correctly decided. 67. On the facts of the present case, the Speaker was justified in coming to the conclusion that there was no split in the original political party of the petitioner Jagjit Singh (Writ Petition 287/2004). Likewise, in Writ Petition 292/2004, the Speaker on consideration of relevant material....
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.... report dated 30.3.2004. The report further reveals that the official of the postal department went to the given address of the respondent on 27.4.2004, 28.4.2004, 29.4.2004, 30.4.2004 and 1.5.2004. so far as the substituted service of the Respondent through SDO(C) Palwal was concerned, the report of the same was still awaited when the case was taken up on 11.5.2004. In these circumstances, it was ordered on 15.5.2004 to make another effort to serve the respondent by sending notice, yet again, by registered post and as well as by substituted service through publication in two leading newspapers and the case was adjourned to 4.6.2004, by which date the respondent had been directed to file his reply. The record reveals the notice dated 18.5.2004 through registered post, along with the copy of the petition and its annexures was again sent to the respondent asking him to furnish his reply by 4.6.2004. In the mean time, the respondent through a letter received on 21.5.2004, made a prayer for giving him six weeks time to file the reply as he had only received the notice on 12.5.2004 whereas reply had to be given by 11.5.2004. Since a notice dated 18.5.2004 had already been sent to the ....
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.... by the respondent had also been enclosed with the said letter. The respondent was asked to submit his comments latest by 2 pm on 14.6.2004 and also to appear personally with the assistance of his Advocate. The record reveals that the inspection had indeed been done by the respondent and he was assisted by his Advocate in the said inspection of the record. Instead of filing his reply on 14.6.2004, another application was submitted by the respondent on 14.6.2004 itself seeking permission to inspect the files of some other cases and also put a query to this Authority regarding the procedure adopted in those cases regarding evidence etc. The desired files/documents were got inspected to the Respondent on 14.6.2004 which was acknowledged by the respondent on his above stated letter dated 14.6.2004. After completion of the inspection, on 14.6.2004 again another application was made by the respondent that certified copies of more documents was required by him for filing his comments/reply to the petition." 70. The position is almost same in both cases. 71. Re : (b) The words 'he and any other person' and the words 'the group' in paragraph 3 on the plain reading show....
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.... 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 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'. 72. The object of the Tenth Schedule is to discourage defection. 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. It may be noted that by Constitution (Ninty-first Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth Schedule. 73. Lastly, we will consider the ground of personal malafides. It is alleged that a telephone call was made by ....
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....titutional validity of the Tenth Schedule in Kihoto Hollohan's case. 77. Undoubtedly, in our constitutional scheme, the Speaker enjoys a pivotal position. The position of the Speaker is and has been held by people of outstanding ability and impartiality. Without meaning any disrespect for any particular Speaker in the country, but only going by some of events of the recent past, 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. Our attention has been drawn to the recommendations made by the National Commission to review the 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. Our attention has also been drawn to the views of number of other experts, committees/commissioner to the effect that the power of disqualification as a result of defection need to be exercised in accordance with ....