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PETITIONER: G. VISWANATHAN

       Vs.

RESPONDENT: THE HON’BLE SPEAKER TAMIL NADULEGISLATIVE ASSEMBLY, MADRAS &

DATE OF JUDGMENT:       24/01/1996

BENCH: AHMADI A.M. (CJ) BENCH: AHMADI A.M. (CJ) PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR 1060            1996 SCC  (2) 353  JT 1996 (1)   607        1996 SCALE  (1)531

ACT:

HEADNOTE:

JUDGMENT:                            A N D              CIVIL APPEAL NOS. 2271-72 OF 1996    (Arising out of SLP (Civil) Nos. 24585-24586 of 1995) Azhagu Thirunavukkarasu V. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras & Another                       J U D G M E N T Ahmadi, CJI      Special leave granted.      The appellants  are  two  members  of  the  Tamil  Nadu Legislative Assembly  elected in  the general elections held in 1991.  Both of  them were  candidates set up by All India Anna Dravida  Munnetra Khazhagam  (for short  ‘AIADMK’). Mr. Viswanathan was  elected  from  Arcot  Legislative  Assembly constituency  whereas   Mr.  Azhaagu   Thirunavukkarasu  was elected from  Orathanadu constituency.  Both  of  them  were expelled from  Orathanadu constituency.  Both of  them  were expelled from  AIADMK party of January 8, 1994. On March 16, 1994 the  Speaker of  Tamil Nadu  Legislative Assembly  (for short   ‘Assembly’)   declared   the   two   appellants   as ‘unattached’ members  of  the  Assembly.  Enclosing  certain papers and  other documents one Subburethinam, Member of the Assembly, informed the Speaker that both the appellants have joined another  (new) party  called  Maru  Malarchi  Dravida Munnetra Khazhagam (‘MDMK’ for short) and hence they should, as per  the provisions  of law,  be  disqualified  from  the membership of  the Assembly  issued a notice under Section 7 of the  Tamil Nadu  Assembly (Disqualification  on Ground of Defections) Rules,  1986, and called for the comments of the appellants on  the representation  made by  Subburethinam to disqualify  them.   The  appellants  filed  Write  Petitions Nos.3562 and  3563/95 in  the High  Court of  Judicature  at Madras and  assailed the said notice of the Secretary of the Assembly, dated  March 6,  1995. Sivaraj  Patil, J. by order

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dated March  10, 1995  dismissed the writ petitions with the following observations:      "Having regard  to the  law declared  by      the Apex  Court, I  do not  think it  is      appropriate  to   entertain  these  writ      petitions. The  Learned  Senior  Counsel      for the  Petitioner  submitted  that  on      similar questions this court has already      entertained two  writ petitions  by  the      same petitioners  in W.P.  No.  5349  of      1994 and 5496 of 1994. When specifically      asked, the learned Senior Counsel fairly      submitted that  as on  the date when the      earlier writ  petitions were  filed  the      petitioners were only unattached members      having been  expelled from the party and      did not  join other political party, but      as on today, they have joined some other      political party.  Be that  as it may, in      the light of the judgment of the Supreme      Court aforementioned,  I am not inclined      to entertain these writ petitions."                      (Emphasis supplied)      Thereafter, the appellants filed representations before the Speaker,  Tamil Nadu  Legislative Assembly, stating they were  "unattached  members"  of  the  Assembly  and  so  the provisions of  the Tenth  Schedule of  the  Constitution  of India regarding  disqualifications did  not apply  to  them. They also prayed that the preliminary question as to whether the Tenth  Schedule of the Constitution would apply to them, they being  unattached members,  may be  adjudicated in  the first instance.  The Speaker considered the entire matter in detail and  disposed of  the same  by separate  but  similar orders dated  April 20,  1995. In  paragraph 14 thereof, the Speaker stated thus:      "14. The  admitted relevant  facts which      are necessary  for determination  of the      issues raised are as follows:-      A.   That the Respondent contested as an      official candidate  of  All  India  Anna      Dravida Munnetra  Khazhagam  party  from      (Arcot) Orathandu Constituency.      B.   That he was expelled from All India      Anna Dravida  Munnetra  Khazhagam  party      for anti-party activities.      C.   That he  had been  declared  as  an      ‘unattached’ member  by a  ruling  dated      16.3.1994 as  per the convention and not      as  per   the  Tenth   Schedule  or  the      relevant rules made by that Act.      D.   That   he    had   joined   another      political  party,   viz.,   Marumalarchi      Dravida Munnetra Khazhagam." Discussing the  matter in  detail,  the  Speaker  construed, paragraphs 2(1),  2(2) and  Explanation (a) to sub-paragraph (1) of  paragraph 2 of the Tenth Schedule and held that if a person is  set up as a candidate for election by a political party and  gets elected,  he must be deemed always to belong to the  same party from which he was elected and if he joins another political  party, it  would  amount  to  voluntarily giving up  his membership  of such  political party and will become  subject   to  disqualification  under  sub-paragraph (1)(a). In  the light  of the admitted facts and the view of law held  by him,  particularly in view of the fact that the appellants had not denied in their explanation that they had

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joined a  new party, the Speaker in paragraph 20 of the said order, entered the following findings:      "1. that  he got  elected to  the  Tamil      Nadu Legislative Assembly as a candidate      set up  by a  political party (viz.) All      India Anna  Dravida  Munnetra  Khazhagam      (A.I.A.D.M.K.),      2.  that   for  the   purpose  of  Tenth      Schedule, he  shall be  deemed to belong      to the  Political Party, i.e., All India      Anna    Dravida    Munnetra    Khazhagam      (A.I.A.D.M.K.) in  accordance  with  the      explanatory note  of  Sub-para  2(1)(a),      though he  had been  expelled from  that      party and  declared as  an  ‘unattached’      member by me,      3. that  he has joined another Political      Party,   viz.,    Marumalarchi   Dravida      Munnetra Khazhagam,      4. that  he has  not denied  any of  the      contents  (sic)  of  the  petitioner  as      alleged in the petition, and      5. that  he  does  not  come  under  the      purview of  the exception,  envisaged in      Paragraph  3   and  4   of   the   tenth      Schedule." It   was    held   that    the   appellants   had   incurred disqualification  for   being  members  of  the  Tamil  Nadu Legislative   Assembly   under   Article   191(2)   of   the Constitution of  India read  with clause (a) of sub-para (1) of Paragraph  2 of  Tenth Schedule  and  had  ceased  to  be members of the Assembly with immediate effect.      The  appellants   filed  writ  petitions  Nos.6331  and 6332/95 and  assailed the  aforesaid order  of  the  Speaker dated 20th  April, 1995.  They also filed CMP Nos. 10261 and 10262/95, praying  for the  grant of ad interim injuction to restrain the  Speaker from  giving effect  to the  aforesaid order. Though  initially an  order of injunction was passed, the learned Single Judge vacated the injunction by his order dated April  26, 1995  and dismissed  the CMPs. Aggrieved by the orders vacating interim injunction, the appellants filed Writ Appeals  Nos.559 and  560 of  1995. A Division Bench of the High  Court noticing  that the  writ appellants  and the writ petitions  raised the  same issues, heard them together and disposed  them of  by a  common judgment dated September 29, 1995.  The Division  Bench saw  no merit, whatsoever, in the writ  petitions and the writ appeals and dismissed them. It is  against the  said common  judgment of the High Court, that the  appellants  have  filed  the  present  appeals  by special leave.      We heard  Mr. Shanti  Bhushan, Senior  Counsel, for the appellants and Mr. Soli J. Sorabjee, Senior Counsel, for the respondents. The  main thrust  of the  submissions  made  by appellants’ Counsel  was that  Paragraph 2(a)  of the  Tenth Schedule  of  the  Constitution  comes  into  play  only  to disqualify a  member who voluntarily gives up his membership of the  political party  that had set him up as a candidate, and not  when he  is expelled  from the  party and  declared "unattached" i.e.,  not belonging  to any  political  party. Paragraph 2(a)  will apply only when a member himself of his own volition  gives up  his membership  of  the  party.  Any member thrown  out or  expelled from  the party that had set him up  as a candidate, will not fall within the mischief of paragraph 2  (a). By  expulsion, the  member thrown out will ‘cease’ to  be a  member of  the party  that set him up as a

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candidate and  even if he joins another party thereafter, it will not be a case of ‘voluntarily’ giving up his membership of the  political party  that had  set him up as a candidate for the  election.  On  the  other  hand,  Counsel  for  the respondents, Mr.  Soli J. Sorabjee, submitted that the Tenth Schedule of the Constitution should be interpreted strictly, and keeping  in view  the mischief sought to be prevented by enacting the law, it is evident that though expulsion by the political party  that had  set up a person as a candidate by itself may not attract paragraph 2(1)(a), the further act of his joining another party amounts to ‘voluntarily giving up’ the membership of the political party that had set him up as a candidate.  Learned Counsel  submitted  that  the  deeming provision contained  in the explanation should be given full effect and  in the  light of the finding that the appellants had joined  another political  party,  the  High  Court  was justified in  confirming the  conclusion of the Speaker that the appellants  had voluntarily given up their membership of the political  party that  had set them up as candidates and had thereby  incurred the disqualification for being members of the  Assembly under  Article 191(2)  of the  Constitution read with  clause (a) of sub-paragraph (1) of paragraph 2 of the Tenth Schedule.      Before we  proceed further,  we may notice the relevant provisions of  the  Constitution.  Article  190  deals  with ‘vacation   of    seats’   and   Article   191   speaks   of ‘Disqualifications for  membership’. The  relevant parts  of the said  two articles  with which  we are concerned read as under:      "190.     (1) ................                (2) ................                (3) If  a member of a House of      the Legislature of a State -      (a)  becomes   subject  to  any  of  the      disqualifications  mentioned  in  clause      (1) of article 191; or      ................."      "191. (1) A person shall be disqualified      for being  chosen as,  and for  being, a      member of  the Legislative  Assembly  or      Legislative Counsel of a State -      (a) .............      (b) .............      (c) .............      (d) .............      (e) if he is so disqualified by or under      any law made by Parliament -      (2) A  person shall  be disqualified for      being  a   member  of   the  Legislative      Assembly or  Legislative  Council  of  a      State if he is so disqualified under the      Tenth Schedule."      Tenth Schedule      "1. Interpretation.  In  this  Schedule,      unless the context otherwise requires, -      (a)  "House"   means  either   House  of      Parliament or  the Legislative  Assembly      or, as  the case may be, either House of      the Legislature of a State;      (b) "legislative  party", in relation to      a member  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

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    members of  the 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) "paragraph"  means  a  paragraph  of      this Schedule.      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) ..........      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) a nominated member of a House shall,      (i)  where   he  is   a  member  of  any      political  party  on  the  date  of  his      nomination as  such member, be deemed to      belong to such political party;      (ii) in  any other  case, be  deemed  to      belong to  the political  party of which      he becomes,  or, as  the  case  may  be,      first  becomes,   a  member  before  the      expiry of  six months  from the  date on      which he  takes his seat after complying      with the  requirements of article 99 or,      as the case may be, article 188.      (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.      (3) A  nominated member of a House shall      be disqualified  for being  a member  of      the House  if  he  joins  any  political      party after  the expiry  of  six  months      from the date on which he takes his seat      after complying with the requirements of      article 99  or,  as  the  case  may  be,      article 188."      The crucial point raised in these appeals centres round the interpretation  to be  placed on  paragraph 2(1)(a) read with the  explanation thereto  of the Tenth Schedule. Does a member of  a House,  belonging to  a political party, become disqualified as  having voluntarily  given up his membership of such  political party  on his  joining another  political party after his expulsion from the former?      The legislative background for enacting the law affords a key  for an understanding of the relevant provisions. What impelled the  Parliament to insert the Tenth Schedule can be seen from  the Statement  of Objects and Reasons appended to the Bill  which  ultimately  resulted  in  the  Constitution (Fifty-Second Amendment)  Act, 1985, quoted in the decision,

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Kihoto Hollohan  v. Zachillhu and Others, 1992 Supp. (2) SCC 651 (668). It is to the following effect:      "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." When the  constitutionality  of  the  above  provisions  was challenged, this  Court, after  referring to paragraphs 2, 3 and 4  of the  Tenth Schedule  of the Constitution stated in Kihoto Hollohan (supra), as under:      "These provisions  in the Tenth Schedule      give  recognition   to   the   role   of      political  parties   in  the   political      process. A  political party  goes before      the   electorate   with   a   particular      programme and  it sets  up candidates at      the  election   on  the  basis  of  such      programme. A  person who gets elected as      a candidate  set up by a political party      is  so  elected  on  the  basis  of  the      programme of  that political  party. The      provisions of  paragraph 2(1)(a) proceed      on the  premise that political propriety      and  morality  demand  that  if  such  a      person, after  the election, changes his      affiliation  and  leaves  the  political      party  which   had  set   him  up  as  a      candidate  at   the  election,  then  he      should give  up his  membership  of  the      legislature  and   go  back  before  the      electorate.  The   same   yardstick   is      applied to a person who is elected as an      Independent candidate and wishes to join      a political party after the election."                           (Emphasis supplied)      The  scope   of  the   legal  fiction  enacted  in  the explanation (a)  to paragraph  (2)(1) of  the Tenth Schedule assumes importance  in this context. By the decision of this Court it  is fairly well settled that a deeming provision is an admission  of the  non-existence of  the fact deemed. The Legislature is  competent to  enact a  deeming provision for the purpose  of assuming  the existence of a fact which does not even  exist. It  means that  the Courts must assume that such a  state of  affairs exists as real, and should imagine as real the consequences and incidents which inevitably flow therefrom, and give effect to the same.      The deeming  provision may  be intended  to enlarge the meaning of  a particular  word or  to include  matters which otherwise may or may not fall within the main provision. the law law  laid down  in this regard in East End Dwellings Co. Ltd. case  (1952 AC  109 +  1951 (2) All. E.R. 587) has been followed by  this Court in a number of cases, beginning from State of  Bombay v.  Pandurang (AIR  1953 SC 244) and ending with a  recent  decision  of  a  three  Judge  Bench  in  M. Venugopal v.  Divisional Manager  (1994 (2)  SCC 323).  N.P. Singh, J.,  speaking for  the Bench,  stated the law thus at

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page 329:      "The effect of a deeming clause is well-      known.  Legislature   can  introduce   a      statutory fiction  and  courts  have  to      proceed  on  the  assumption  that  such      state of  affairs exists on the relevant      date. In  this connection,  one is often      reminded  of   what  was  said  by  Lord      Asquith  in   the  case   of  East   End      Dwellings Co.  Ltd. V.  Finsbury Borough      Council that when one is bidden to treat      an imaginary  state of  affairs as real,      he must  surely, unless  prohibited from      doing  so,  also  imagine  as  real  the      consequences   and    incidents    which      inevitably have  flowed from  it  -  one      must  not  permit  his  "imagination  to      boggle" when  it comes to the inevitably      corollaries of that state of affairs."      It appears that since the explanation to paragraph 2(1) of the  Tenth Schedule  provides that an elected member of a House shall  be deemed  to belong to the political party, if any, by  which he  was set up as a candidate for election as such member,  such person  so set  up  as  a  candidate  and elected as a member, shall continue to belong to that party. Even if  such a  member is  thrown out  or expelled from the party, for  the purposes  of the  Tenth Schedule he will not cease to be a member of the political party that had set him up as  a candidate  for the  election. He  will continue  to belong to  that political  party even  if he  is treated  as ‘unattached’. The  further question  is when  does a  person ‘voluntarily give  up’  his  membership  of  such  political party,  as   provided  in  paragraph  2(1)(a)?  The  act  of voluntarily giving  up the membership of the political party may be either express or implied. When a person who has been thrown out or expelled from the party which set him up as sa candidate and  got elected,  joins another  (new) party,  it will certainly  amount to  his  voluntarily  giving  up  the membership of  the political party which had set him up as a candidate for election as such member.      We are  of the  view that  labelling  of  a  member  as ‘unattached’ finds  no place  nor has any recognition in the Tenth Schedule.  It appears to us that the classification of the members  in the  Tenth Schedule  proceeds  only  on  the manner of  their entry  into the House, (1) one who has been elected on  his being  set up  by a  political  party  as  a candidate for  election as such member; (2) one who has been elected as  a member otherwise than as a candidate set up by any  political   party  -   usually  referred   to   as   an ‘independent’ candidate  in an election; and (3) one who has been nominated.  The categories mentioned are exhaustive. In our view,  it is  impermissible to  invent a new category or clause other than the one envisaged or provided in the Tenth Schedule of  the Constitution.  If a  person belonging  to a political party  that had  set him  up as  a candidate, gets elected to  the House and thereafter joins another political party for  whatever reasons, either because of his expulsion from the  party or  otherwise, he  voluntarily gives  up his membership  of   the  political   party   and   incurs   the disqualification. Being  treated as ‘unattached’ is a matter of mere  convenience outside the Tenth Schedule and does not alter the  fact to  be  assumed  under  the  explanation  to paragraph 2(1).  Such an  arrangement and  labelling has  no legal bearing  so far as the Tenth Schedule is concerned. If the contention  urged on behalf of the appellant is accepted

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it will defeat the very purpose for which the Tenth Schedule came to  be  introduced  and  would  fail  to  suppress  the mischief, namely, breach of faith of the electorate. We are, therefore, of  the opinion  that the deeming fiction must be given full  effect for  otherwise the  expelled member would escape the  rigor of  the law which was intended to curb the evil of defections which had polluted our democratic polity.      Mr. Shanti Bhushan laid stress on paragraph 1(b) of the Tenth Schedule  and contended  that the Legislative Party in relation to  a member  of a House belonging to any political party means  the group consisting of all the members of that House for  the time being belonging to that political party, and so  understood, the  appellants who  were thrown  out or expelled from  the party,  did not  belong to that political party nor  will they  be bound  by any  whip given  by  that party, and  so, they  are unattached  members  who  did  not belong to  any political  party, and in such a situation the deeming provision in sub-paragraph (a) of the explanation to paragraph 2(1)  will not  apply. We are afraid it is nothing but begging  the question.  Paragraph 1(b) cannot be read in isolation. It  should be  read along with paragraphs 2,3 and 4. Paragraph  1(b) in  referring to the Legislative Party in relation to  a member  of a House belonging to any political party, refers  to the provisions of 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.      Our Attention  was drawn  to the decision of this Court in Ravi  S. Naik  v. Union of India and Others, (1994) Supp. (2) SCC  641. In the said decision, paragraph 2(1)(a) of the Tenth S schedule of the Constitution was construed and it is observed at page 649 thus:      "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."                           (Emphasis supplied) If he  of his own volition joins another political party, as the appellants  did in the present case, he must be taken to

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have acquired  the membership  of another political party by abandoning the  political party to which he belonged or must be  deemed   to  have  belonged  under  the  explanation  to paragraph 2(1)  of the  Tenth Schedule.  Of  course,  courts would insist  on evidence  which is  positive, reliable  and unequivocal.      For the aforesaid reasons, We hold that the judgment of the High  Court declining to interfere with the order of the disqualification  passed   by  the   Speaker,   Tamil   Nadu Legislative Assembly,  calls for  no interference  in  these appeals.  The   appeals  are   dismissed  with  costs.  Each appellant to pay the costs in separate sets.