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CASE NO.: Writ Petition (civil)  287 of 2004

PETITIONER: Jagjit Singh

RESPONDENT: State of Haryana & Ors

DATE OF JUDGMENT: 11/12/2006

BENCH: CJI,C.K. Thakker & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [With WP (C) Nos.290, 291, 292, 293 & 294 of 2004] Y.K. Sabharwal, CJI.

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 \026 Jagjit Singh  (W.P.No.287 of 2004) belonged to a political party named  ’Democratic Dal of Haryana’. He was a lone member  representing his party in the Assembly.  Petitioner- Karan  Singh Dalal (W.P.No.292 of 2004) was a lone member of a  political party named ’Republican Party of India’ in the  Assembly.          The petitioners were elected to the Assembly in election  held in February, 2000.  All impugned orders disqualifying the  petitioners were passed on 25th June, 2004.  The voting for  election to Rajya Sabha took place on 28th June, 2004.  The  petitioners, however, could not vote in the said election,  having ceased to be the members of the Assembly with  immediate effect.         The challenge to the orders of disqualification is made on  various grounds.  The ground common to all the petitions is  the violation of principles of natural justice.  It has been  contended on behalf of all the petitioners that the orders of  disqualification were made in utter haste with a view to  deprive them of their right to vote on 28th June, 2004 with a  view to help the Chief Minister whose son was a candidate in  elections to Rajya Sabha.  It is contended that the Speaker  had no basis for coming to the conclusion that the  independent members had joined the Indian National  Congress.  It is claimed that the impugned orders are clearly  result of malafides of the Speaker.  On behalf of the two  petitioners belonging to political parties, it has been contended  that they are entitled to protection of paragraph 3 of the Tenth  Schedule since there were splits in their original political  parties and they being single member parties in the Assembly,  on having joined Indian National Congress, the stipulation  that when more than one-third members join another party,  there is a split, stood fulfilled, it being a case of hundred per  cent members joining another political party.   Before considering the legal submissions, we may briefly  narrate the facts of each case.

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Writ Petition No.287 of 2004 (Jagjit Singh) and Writ Petition  No.292 of 2004 (Karan Singh Dalal)

       The petitioner contested election as a candidate of  National Congress Party (NCP) and was the only elected  member of the party in the Assembly.  The case of the  petitioner is that on 28th December, 2003 due to  organizational difficulties and differences with the central  leadership of NCP which is primarily based in  Maharashtra/Meghalaya, the workers/leaders of the NCP at  Haryana decided to cause a split 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 18th May, 2004  was issued calling upon the petitioner to file reply on or before  4th June, 2004 that was served on the staff of the petitioner on  31st May, 2004.  The petitioner on 4th June, 2004 filed an  application before respondent no.2 \026 Speaker placing on  record certain facts and praying for extension of time by four  weeks to file reply.  On 23rd June, 2004, request of the  petitioner for adjournment of proceedings beyond 28th June,  2004 was rejected by the Speaker who heard the arguments  and listed the matter for further proceedings for 24th June,  2004.  On 24th June, 2004, proceedings were adjourned to  25th June, 2004 for orders.  Further case of the petitioner is  that the Speaker on 24th June, 2004, called him on his mobile  phone and stated that if petitioner decides to abstain from  voting in election of Rajya Sabha on 28th June, 2004, his  disqualification can be avoided.  The impugned order was  passed on 25th June, 2004.         One of the contentions urged is that the Speaker,  respondent No.2, has not filed any reply and, therefore, the  averment made that he called the petitioner on 24th June,  2004 asking him that if he decides to abstain from voting,  disqualification can be avoided shall be deemed to be admitted  and, thus, the malafides of the Speaker are apparent.  The  contention is that the Speaker was acting on the dictates of  respondent No.5, the Chief Minister of Haryana whose son was  contesting the election to Rajya Sabha and the impugned  order was passed at his behest.         The facts of writ petition No.292 of 2004 are almost  similar with the only difference that the petitioner here was  member of another political party, namely, Republican Party of  India (RPI).  All other facts including the dates, grounds, non- service and thereafter manner of service of the notice are  almost similar.   W.P.No.291 of 2004 (Dev Raj Dewan) and W.P. Nos.290, 293- 294/2004

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The petitioner in Writ Petition No.291 of 2004 was elected  as an independent member of the Assembly and as such  supported from outside the Government of Indian National Lok  Dal Party headed by respondent No.5, as Chief Minister for  more than four years from February, 2000 to June, 2004.  The  case of the petitioner is that on 14th June, 2004, he withdrew  his support to Government of respondent No.5 and declared  his outside support to Indian National Congress in the State of  Haryana.  On 15th June, 2004, a complaint was filed against  him by respondent No.3 under paragraphs 2 and 6 of the  Tenth Schedule of the Constitution on the ground that  petitioner had joined the Indian National Congress.   Complaints were also filed against petitioners in Writ Petition  Nos.290, 293-294 seeking their disqualification on similar  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 and denying that he joined  Indian National Congress.  A reply was also filed on that date  to the application stating that fair opportunity to contest the  proceedings had not been granted and the evidence is  concocted and manipulated.  An opportunity was sought to  cross-examine Ashwani Kumar and also to lead evidence.  On  the same date at 1.00 p.m. the impugned order was passed.   The facts in the other three cases are almost identical.   According to the petitioners, there is no material for  coming to the conclusion that they joined Indian National  Congress.  They attribute malafides to respondent Nos.2 and  5.  According to them, the sole purpose of respondent No.2  was to deprive them of their right to exercise their franchise in  the Rajya Sabha elections to help the son of the Chief  Minister.  They also dispute the correctness of the T.V. and  newspaper reports to the effect that they have all joined Indian  National Congress.  The contention is that joining a political  party is different from extending outside support to it.  They  contend that in a similar manner the petitioners without  joining the party of respondent No.5, for nearly 4 years were  extending his Government outside support and now their  decision to extend outside support to Indian National  Congress cannot and does not amount to joining the said  political party.  It has been strenuously contended that the  petitioners have been denied the opportunity to lead evidence  and to cross-examine witnesses of the complainant to  demonstrate that they had not joined Indian National  Congress.  It is contended that the orders of disqualification  cast a stigma on the petitioners and adversely affected their  reputation and any provision which may lead to their  disqualification and affect their reputation has to be strictly  construed.  It is further contended that there is a fundamental  difference between the position of independent candidates and  those who are elected on tickets of political parties.  It is also  their contention that the Speaker has passed orders with a  pre-determined mind in haste so as to deprive the petitioners

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of their right to vote in Rajya Sabha elections.  The submission  is that the petitioners were entitled to explain what had  appeared in the print and electronic media.  The main  contention is that since principles of natural justice have been  violated, the impugned orders are nullity.         Four petitioners 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.   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. The requirement to comply with the principles of natural  justice is also recognized in rules made by the Speaker in  exercise of powers conferred by paragraph 8 of the Tenth  Schedule.  The Speaker, Haryana Legislative Assembly, made  the Haryana Legislative Assembly (Disqualification of Members  on ground of Defection) Rules, 1986 in exercise of power  conferred by paragraph 8 of the Tenth Schedule.  Rule 7(7),  inter alia, provides that neither the Speaker nor the  Committee shall come to any finding that a Member has  become subject to disqualification under the Tenth Schedule  without affording a reasonable opportunity to such member to  represent his case and to be heard in person.   The question whether reasonable opportunity has been  provided or not cannot be put in a strait-jacket and would  depend on the fact situation of each case.   At the outset, we may mention that while considering the  plea of violation of principles of natural justice, it is necessary  to bear in mind that the proceedings, under the Tenth  Schedule, are not comparable to either a trial in a court of law  or departmental proceedings for disciplinary action against an  employee.  But the proceedings here are against an elected  representative of the people and the judge holds the  independent high office of a Speaker.  The scope of judicial  review in respect of proceedings before such Tribunal is  limited.  We may hasten to add that howsoever limited may be  the field of judicial review, the principles of natural justice  have to be complied with and in their absence, the orders  would stand vitiated.  The yardstick to judge the grievance  that reasonable opportunity has not been afforded would,  however, be different.  Further, if the view taken by the  Tribunal is a reasonable one, the Court would decline to strike  down an order on the ground that another view is more  reasonable.  The Tribunal can draw an inference from the  conduct of a member, of course, depending upon the facts of  the case and totality of the circumstances. Now, we may note some of the judgments on which  reliance has been placed by learned counsel for the petitioners  to support the argument that the principles of natural justice  have been violated.  

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The observations in John v. Rees & Anr. [(1969) 2 All  E.R. at pages 307-309] relied upon are to the following effect:

"As everybody who has anything to do  with the law well knows, the path 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".

       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. 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 workers and the  question whether the Companies Act contemplates any  hearing to be given to the workers or it is to be given only to  the contributories and creditors, Justice Reddy observed that : "And, what do the workers want? They  want to be heard lest their situation be  altered unheard. They invoke natural  justice, so to claim justice. They invoke  the same rule which the courts compel  administrative tribunals to observe. Can  courts say natural justice need not be  observed by them as they know how to  render justice without observing natural  justice? It will surely be a travesty of  justice to deny natural justice on the  ground that courts know better. There is  a peculiar and surprising misconception  of natural justice, in some quarters, that  it is, exclusively, a principle of  administrative law. It is not. It is first a  universal principle and, therefore, a rule  of administrative law. It is that part of the  judicial procedure which is imported into  the administrative process because of its  universality. "It is of the essence of most  systems of justice-certainly of the Anglo- Saxon System-that in litigation both sides  of a dispute must be heard before  decision. ’Audi Alterum Par tern’ was the  aphorism of St. Augustine which was  adopted by the courts at a time when  Latin Maxims were fashionable". Audi  Alterum Partem is as much a principle of

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African, as it is of English legal  procedure; a popular Yoruba saying is:  ’wicked and iniquitous is he who decides  a case upon the testimony of only one  party to it’ (T.O. Elias : The Nature of  African Customary Law). Courts even  more than administrators must observe  natural justice."   

After laying down aforesaid principles in relation to the  right of workers to be heard, learned Judge said : "It is said that the Companies Act does  not confer any special rights on the  workers, they are virtual strangers to the  Act and so why should they be heard in  the petition for winding-up? The duty to  hear those asking to be heard is not  dependent on the vesting of any right  under the very statute in respect of which  jurisdiction is being exercised by the  court, but on any right whatever which  may come under threat. Surely it is not  the law that rights other than those  created by a particular statute may be  taken away in proceedings under that  statute without affording a hearing to  those desiring to be heard. If the 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 heard, why can’t  the workers be heard?  It is said that  once the workers are allowed to enter the  Company Court, the flood gates will be  opened, all and sundry will join in the  fray and utter confusion will prevail.  These are dark forebodings for which  there is no possible justification. The

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interest of the workers is limited. It is the  interest of the others, those that battle for  control and for power that may create  chaos and confusion. It must not be  forgotten that the court is the master of  the proceedings and the ultimate control  is with the court. Parties may not be  impleaded for the mere asking or heard  for the mere seeking. The court may well  ask the reason why, if someone seeks to  be heard.  Workers will not crowd the  Company Court and the Court will not be  helpless to keep out those whom it is not  necessary to hear. It is said that workers  will not be allowed to intervene in a  partition or a partnership action to  oppose partition or dissolution of  partnership and so why should they be  allowed to intervene in a winding-up  petition. That is begging the question.  There is no reason why workers may not  be allowed, in appropriate cases, to  intervene in partition and partnership  actions to avert disaster and to promote  welfare. As we said, impleading and  hearing are not for the mere asking and  seeking."

In the context of the present case, we fail to understand  the relevance and applicability of the relied upon observations.   The present is not a case of no opportunity.  It is a case where  the question is whether sufficient opportunity was granted to  the petitioners or not.  Reliance was also placed on the decision in Swadeshi  Cotton Mills v. Union of India [(1981) 1 SCC 664].  In that  decision after reviewing almost the entire law including the  decision of House of Lords in Ridge v. Baldwin [(1964) AC  40] John v. Rees (supra), it was held that a quasi-judicial or  administrative decision rendered in violation of the audi  alteram partem rule, wherever it can be read as an implied  requirement of the law, is null and void.   There can be no quarrel about the applicability of general  principles laid down in the aforesaid cases but the question is  about the applicability of those principles to the facts of the  cases before us.  Let us now consider the case which  specifically dealt with disqualification under the Tenth  Schedule and similar argument of violation of principles of  natural justice.   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

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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 review on the ground of non- compliance with the rules of natural justice, it was said that  "But while applying the principles of natural justice, it must be  borne in mind that "they are not immutable but flexible" and  they are not cast in a rigid mould and cannot be put in a legal  strait-jacket.  Whether the requirements of natural justice  have been complied with or not has to be considered in the  context of the facts and circumstances of a particular case."         Dealing with the argument that reference has been made  to newspapers and opportunity to adduce evidence was  denied, it was held that the Speaker was drawing an inference  about the fact which had not been denied by the appellants  themselves viz. that they had met the Governor along with two  other persons in the company of Congress (I) MLAs.  The talk  between the Speaker and the Governor also referred to the  same fact.  It was noted that the controversy was confined to  the question whether from the said conduct an inference could  be drawn that they had voluntarily given up membership.   Rejecting the grievance about the denial of opportunity to  adduce evidence, in Ravi S. Naik’s case, it was noticed that  appellants were the best persons who could refute the  allegations but they did not come forward to give evidence and  also failed to seek permission to cross examine one Dr. Jahlmi  in respect of the statement made by him before the Speaker  that the appellants had given up their membership of their  political party.   We will consider at an appropriate place later the  contention urged in the present case that unlike Ravi S.  Naik’s case,  the petitioners had disputed the allegations  made in the petition and had also sought permission for  leading evidence and for cross examination of Ashwani Kumar  which was illegally denied to them. Considering that rules of natural justice are flexible, let  us now examine the facts of the present case where the  petitioners filed their replies to the complaint and were asked  by the Speaker to watch the video recording and point out  doctoring thereof, if any.  The question is that having failed to  do so, can they be heard on the facts of the present case, to  say that non-grant of opportunity to cross-examine Ashwani  Kumar and to adduce evidence has resulted in violation of  rules of natural justice on having simply denied that they have  not joined the Indian National Congress?  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.           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 questions would determine the fate of

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the case. We have no difficulty in accepting the contention that  there is a fundamental difference between an independent  elected member and the one who contests and wins on ticket  given by a political party.  This difference is recognized by  various provisions of the Tenth Schedule.  An independent  elected member of a House incurs disqualification when he  joins any political party after election as provided in paragraph  2(2) of the Tenth Schedule.  There is also no difficulty in  accepting the proposition that giving of outside support by an  independent elected member is not the same thing as joining  any political party after election.  To find out whether an  independent member has extended only outside support or, in  fact, has joined a political party, materials available and also  the conduct of the member is to be examined by the Speaker.   It may be possible in a given situation for a Speaker to draw  an inference that an independent member of the Assembly has  joined a political party.  No hard and fast rule can be laid  down when the answer is dependent on the facts of each case.   It is also essential to bear in mind the objects for  enacting the defection law also, namely, to curb the menace of  defection.  Despite defection a member cannot be permitted to  get away with it without facing the consequences of such  defection only because of mere technicalities.  The substance  and spirit of law is the guiding factor to decide whether an  elected independent member has joined or not a political party  after his election.  It would not be a valid plea for a person who  may have otherwise joined a political party to contend that he  has not filled up the requisite membership form necessary to  join a political party or has not paid requisite fee for such  membership.  The completion of such formalities would be  inconsequential if facts otherwise show that the independent  member has joined a political party.  The facts of the four  cases of independent elected members are required to be  examined in the light of these principles.  The facts have already been noticed earlier.  We will now  briefly recapitulate what was alleged in the complaint filed on  15th June, 2004, the documents filed therewith, the additional  documents filed with the application dated 23rd June, 2004,  the proceedings that took place before the Speaker and what  has been held in 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.           Along with the application dated 23rd June, 2004,  affidavit of one Ashwani Kumar was filed before the Speaker  stating that he had seen these independent members  admitting and acknowledging in an interview to Zee News

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television channel and Haryana News (Punjab Today Television  Channel) that they had joined the Indian National Congress.    The original C.Ds received from Zee Telefilms, true translation  into English of the transcript of the interview conducted by the  said channel and the original letter issued by Zee Telefilms  and handed over to Ashwani Kumar on his request were filed  on 23rd June, 2004.  The original C.Ds received from Haryana  News channel along with English translation as above and the  original proceedings of the Congress legislative party in respect  of proceedings dated 16th June, 2004 at 11.30 a.m. in the  Committee room of Haryana Vidhan Sabha containing the  signatures of three out of four independent members were also  filed.  It was stated that despite best efforts, the complainant  could not produce these documents on 15th June, 2004 and  was, thus, producing the same now along with the application.  In reply to the complaint and to the application, the  petitioners denied that they had joined the Indian National  Congress on 14th June, 2004 and stated that the newspapers  have not reported correct facts and that they have not filled up  the requisite form and paid the subscription to become  members of the Indian National Congress and they only  decided to withdraw the support from the ruling party by  joining hands with the Congress.   It was further stated that  they will cross-examine the complainant and reporters of the  print media and T.V. Channels and also lead evidence to prove  that they have not joined any political party much less Indian  National Congress.   In reply to the application, it was stated  that on 24th June, 2004 written request was made by the  counsel for grant of three weeks’ time to file the reply but  Speaker ordered that reply be filed on 25th June, 2004 by 10  a.m. and they were not provided fair opportunity to contest the  petition.  It was also pleaded that alleged recording in the C.Ds  is not genuine.   In respect of the signatures as appearing in  the photocopy of the proceedings register of the Congress  legislature party, it was also denied that Annexure P1 is the  photocopy of the original page of the proceedings register of  the said  legislature party in respect of proceeding held on 16th  June, 2004.           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.           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.         The Speaker considered the request of the petitioners for  grant of three weeks’ time in this factual backdrop and  disallowed it and this is the basis of the contention that the  petitioners have been denied a reasonable opportunity to lead  evidences and, therefore, rules of natural justice have been  violated and, thus, the impugned orders of their  disqualification are nullities.  The sufficiency of the time granted depends upon the

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facts and circumstances of each case.  Having regard to the  facts as noticed hereinbefore, we are unable to accept the  contention that in the present case, the petitioners were not  granted sufficient time to meet the case against them.  It has to be remembered that the specific averment in  respect of materials filed had already been made in the  complaint dated 15th June, 2004.  The material filed on 23rd  June, 2004 was supplementary to further support the  allegations in the complaint dated 15th June, 2004.  The  petitioners despite grant of opportunity had declined to watch  the recorded interview.  It is one thing to watch the interview,  point out in what manner the recording was not genuine but  instead of availing of that opportunity, the petitioners  preferred to adopt the course of vague denial.   Under these circumstances, the Speaker concluded that  "there is no room for doubting the authenticity and accuracy  of the electronic evidence produced by the petitioner".  The  Speaker held :   "\005\005In this regard, it is to be noted that the  petitioner has produced the original Compact  disks (CDs), containing the interviews  conducted by Zee News and Haryana News  (Punjab Today Television channel) of the six  independent Members of the Haryana Vidhan  Sabha including the respondent and the same  have been duly certified by both the Television  Channels as regards its contents as well as  having been recorded on 14.6.2004 at New  Delhi.  It has also been certified by both the  Television Channels through their original  letters (P-9 and P-12) duly signed by their  authorized signatures that the original CDs  were handed over to Ashwani Kumar who was  authorized by the petitioner in this regard and  whose affidavit is also on the record as  Annexure \026 P-8 wherein he states that he had  handed over the original CDs to the petitioner.   The letters, Annexures P-9 and P-12, also give  out that the coverage of their interviews on  14.6.2004 was also telecast by both the  Television Channels.  In fact, the certificate  given 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."

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

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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 the news items  appearing on 15.6.2004 in the various  leading newspapers (popularly labeled as  the "Print Media") as Annexures \026 P-1 to  P-7.  A perusal of the same reveals the  reporting that six independent Members  of the Haryana Vidhan Sabha were taken  to Ms. Sonia Gandhi, the Congress  President on 14.6.2004 by Mr. Ahmed  Patel and Mr. Bhupinder Singh Hooda,  Congress M.P. and thereafter, it was  reported that on 14.6.2004, all the six  Members of the Haryana Vidhan Sabha  mentioned therein, (including the  respondent) had joined the Congress  Party.  This documentary evidence is  corroborated by the electronic evidence  placed on the record by the petitioner in  the form of the original Compact Disks  (CDs) containing the interviews  conducted by Zee News and Haryana  News (Punjab Today Television Channel)  of the six independent Members of the  Haryana Vidhan Sabha including the  respondent which show that on  14.6.2004 at 23, Mother Teresa Crescent  Road, New Delhi the six independent  Members of Haryana Vidhan Sabha  (including the respondent) joined the  Indian National Congress Party.  As per  the certificates by both the Television  Channels, which are on record as (P-9  and P-12), the said interviews were  telecast on Zee News Television Channel  at 5.00 p.m.  On 14.6.2004 and on  Haryana News (Punjab Today Television  Channel) on 14.6.2004 at 10 P.M. and on  15.6.2004 at 10 A.M.  The petitioner has  also placed on record the original CD  received from Haryana News (Punjab  Today Television Channel), which shows  its coverage of the meeting of the CLP on  16.6.2004 at Chandigarh.  Although an  opportunity was given to the Learned  Counsel representing the respondent to  watch/view the electronic evidence placed  on the record by the petitioner, the said  opportunity was not availed of. A viewing  of the entire electronic record considered  along with the supporting evidence  placed on the record clearly leads this  Authority inter-alia to the following  conclusions: (i)     Six independent Members of the  Haryana Vidhan Sabha are clearly  seen and heard acknowledging and  admitting to their interviewers,  including Mr. Amit Mishra of  Haryana News (Punjab Today  Television Channel) that they had  joined the Congress Party on

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14.6.2004.

(ii)    These six independent Members of  the Haryana Vidhan Sabha are:

1.      Shri Bhim Sain Mehta, MLA 2.      Shri Jai Parkash Gupta, MLA 3.      Shri Mula Ram, MLA 4.      Shri Rajinder Singh 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."

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 these members.  He found that these members as seen  and heard in the electronic evidence are genuinely identified  as also their voices which are easily and clearly identified.  The  Speaker, thus, held that in view of the irrefutable and  overwhelming documentary and electronic evidence, no other  conclusion was possible than that on 14th June, 2004 these  independent members of Haryana Vidhan Sabha joined the  Congress Party.  He has also referred to the documentary  evidence regarding CLP meeting held on 16th June, 2004 in the  form of original sheet of proceedings register of CLP containing  the signatures of the petitioners.  In respect of the signatures  also, the Speaker has noted that the signatures of the  petitioners on the original sheet of the CLP proceedings are the  same as their signatures on the Vakalatnama filed by their  counsel as is clear after comparison.  It was strenuously contended by learned counsel for the  petitioners that the Speaker while passing the impugned  orders has relied upon his personal knowledge which is wholly  impermissible for a tribunal and contrary to the principles of  fair play and violative of principles of natural justice.  In

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support, reliance is placed on the case of Dewan Singh v.  Champat Singh and Ors. [(1969) 3 SCC 447] where this  Court considered misconduct of the arbitrators who decided  the disputes referred to them on the basis of their personal  knowledge. On consideration of the arbitration agreement, it  was held by this Court that it does not empower the  arbitrators either specifically or by necessary implication to  decide the disputes referred to them on the basis of their  personal knowledge.  The principles laid down in the above case, have no  application to the facts of the present case.  The two situations  have no similarity.  The Speaker has only noticed that he has  had various opportunities to see the petitioners in the  Assembly and those shown in the recording are the same  persons.  We are unable to find fault with this course adopted  by the Speaker.  There is also nothing wrong or illegal in  comparing signatures and coming to the conclusion that the  same are that of the petitioners.  These proceedings before the  Speaker are not comparable with the arbitration proceedings  before arbitrators. Undoubtedly, the proceedings before the Speaker which  is also a tribunal albeit of a different nature have to be  conducted 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  can be inferred merely on the Speaker relying upon his  personal knowledge of having seen and heard the petitioners  for coming to the conclusion that persons in the electronic  evidence are the same as he has seen and so also their voices.   Thus, even if the affidavit of Ashwani Kumar is ignored in  substance it would have no effect on the questions involved. Now, we may also note as to what is stated in the  interviews on the News Channel.   "PETITIONER- DEV RAJ DIWAN: ZEE NEWS CORRESPONDENT \026

Why have you decided to join Congress Party?

SHRI DEV RAJ DIWAN:

       I was basically Congressman.  I have been in  Congress, I have struggled for the sake of Congress  and worked for the Congress. Moreover, my family  has given blood for the Congress. Secondly, due to  some reasons, I was not given Congress party ticket  in 1996 and I contested election as an independent  candidate.  Thereafter, in 1997, I joined Congress  Party.  Again, I was not given Congress Party ticket

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and in 2000.  I again contested election as an  independent candidate and won the election.  I was  Congressman.  I have affection and friendly relation  with Hooda ji.  I was looking for the opportunity to  join the Congress Party.  Hooda Ji has shown love,  Smt. Sonia Ganhi Ji has bestowed her blessings  and we have joined the Congress Party. Now, we will  serve the Congress Party.

ZEE NEWS CORRESPONDENT \026 In case you are not given Congress Party ticket this  time, will you leave the party again?

SHRI DEV RAJ DIWAN: No, now we have got blessings.  Now, we will serve  the Congress Party physically, mentally and  financially and will work only for the Congress  Party.

SHRI DEV RAJ DIWAN: Dev Raj Diwan, MLA from Sonepat.  I was  congressman and in 1996, I was not given party  ticket due to some reasons.  I contested elections as  an independent candidate and I won the election  too.  I topped the elections in 1996 by getting  maximum votes.  Thereafter, I joined Congress Party  in 1997.  In 2000, due to some reasons, I was not  given Congress Party ticket and again I contested  elections as an independent candidate. I was again  elected as MLA by the people.  I am basically  (Khaandani) Congressman.  My whole of the family  has given blood for the sake of Congress Party.  We  are Congressman since the time of Shri Sanjay  Gandhi.  We stood with Shri Rajiv Gandhi Ji.  The  whole country has been impressed by Smt. Sonia  Gandhi with her sacrifice.  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 \026 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 \026 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

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leadership of Shri Bhupinder Singh Hooda.  Now,  we will serve and strengthen the Congress Party  physically, mentally and financially. SHRI RAJINDER SINGH BISLA: Rajinder Singh Bisla, MLA, Ballabhgarh. HARYANA NEWS CORRESPONDENT \026 On which conditions, you have joined the  Congress Party? SHRI RAJINDER SINGH BISLA: We have not imposed any condition to join the  Congress Party.  During my longest political life, I  was elected as an independent MLA in 1977.  In  1991, I was given Congress Party ticket by Shri  Rajiv Gandhi.  I had been President of District  Congress Committee, Faridabad.  I had been on  some important posts of the organization.  This  time, I was not given Congress Party ticket from  Ballabhgarh.  The people gathered in huge number  (in the shape of big Panchayat) and they elected me  as an independent MLA with maximum votes.  The  people of my Constituency who elected me, keeping  in view the conditions of Haryana State as well as  conditions of our country, reposed faith in the  leadership of Smt. Sonia Gandhi and having faith  therein.  We met Smt Sonia Gandhi and joined  Congress Party under he leadership of Shri  Bhupinder Singh Hooda.  We will serve the  Congress Party.  We have entered into politics for  the purpose of serving people. PETITIONER- JAI PARKASH GUPTA: ZEE NEWS CORRESPONDENT \026 Jai Parkash Ji, why have you taken decision to join  Congress Party at this stage.  You all were  supporting Chautala Government so far.

SHRI JAI PARKASH GUPTA: Since by birth, we are with Congress and our family  has been with Congress for the last three decades.   We are members of Congress.  We cannot breathe  without Congress Party.  Last time, I was Legislator  and thereafter, during elections, I was not given  Congress Party ticket due to some reasons.  Then, I  contested assembly elections as an independent  candidate and was elected by the people too.  Today  we have come back to our home.  We have got  inspiration from Smt. Sonia Gandhi who has  sacrificed and has put an example. She has  sacrificed the chair of Prime Minister, which she  could have and made Sardar Manmohan Singh as  Prime Minister.  By coming back to our home, we  have again joined Congress Party under the  command of Smt. Sonia ji, Hooda Sahib and Ahmed  Sahib.  Today we have become associate members  of Congress Party. HARYANA NEWS CORRESPONDENT \026 Whether you have joined Congress Party under  pressure or with your own willing?

SHRI JAI PARKASH GUPTA \026  We are veteran Congressmen.  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

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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 \026 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 had been President of Congress  Party.  Thereafter, I had been in Congress.  Today, I  am happy to see that we have joined Congress Party  under the leadership of Smt. Sonia Gandhi who is  idol of sacrifice.  By reposing faith in her leadership,  we all have joined Congress Party, today selflessly  and we don’t have any expectations.  We will abide  by the dictates of Smt. Sonia Gandhi Ji."  

In view of the aforesaid statements and absence of any  explanation, let alone reasonable explanation, except only  vague and general pleas and denials by the petitioners in their  stand before the Speaker, they cannot be heard to say that  they have been deprived of reasonable opportunity or there is  violation of rules of natural justice.   From the facts and circumstances of the case and the  conduct of the petitioners, it can be reasonably inferred that  they were only interested in prolonging the proceedings  beyond 28th June, 2004, the date fixed for Rajya Sabha  elections.  The argument that the Speaker passed the  impugned order in haste as voting for Rajya Sabha elections  was fixed for 28th June, 2004 is a double edged one since the  petitioners were interested in prolonging the proceedings  beyond 28th June, 2004 and the Speaker wanted to decide  before it, if the petitioners had incurred disqualification under  the Tenth Schedule. Relying upon the case of Narayan Bhagwantrao Gosavi  Balajiwale v. Gopal Vinayak Gosavi and Ors. [(1960) 1  SCR 773], it was sought to be contended on behalf of the  petitioners that the admissions allegedly made before the  media could be explained and shown as erroneous and not  binding on them and, therefore, opportunity ought to have  been granted to them to prove so and the failure to grant  opportunity vitiates the impugned orders.  The petitioners had  failed to plead how the admissions/statements made by them  were erroneous.  Had they done so, then the question of its  proof would have arisen.  Instead of so doing, the petitioners  only took shelter under the general vague denial pleading that  they wish to adduce evidence.  It is also to be remembered as  observed by the Supreme Court in the aforesaid case, that  admission is the best evidence that can be relied upon, and  though not conclusive, is decisive of the matter, unless  successfully withdrawn or proved erroneous.  The petitioners

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have failed to satisfy the later part.  Undoubtedly, the Speaker has to comply with the  principles of natural justice and cannot pass an order on the  basis of pre-determination but in the present case, it cannot  be held that the impugned order suffers 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. 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."

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 of joining can be  inferred from facts and conduct of a member, without a  member formally joining a political party inasmuch as not  filling form required to be filled by a member of the political  party under the rules and regulations of that party or payment  of any prescribed fee.  The respondents pleaded for a liberal  construction and submitted that   inference from conduct was  sufficient to establish that an independent member has joined  a political party. These are two extreme views on the issue.   We are of the view that to determine whether an  independent member has joined a political party the test is not  whether he has fulfilled the formalities for joining a political  party.  The test is whether he has given up his independent  character on which he was elected by the electorate.  A mere  expression of outside support would not lead to an implication  of a member joining a political party.  At the same time, non- fulfillment of formalities with a view to defeat the intent of  paragraph 2(2) is also of no consequence.  The question of fact  that a member has given up his independent character and  joined, for all intent and purposes, a political party though not  formally so as to incur disqualification provided in paragraph  2(2) is to be determined on appreciation of the material on  record.    Applying this test here, it cannot be held that the  Speaker committed any illegality in coming to the conclusion  that the petitioners had joined the Indian National Congress.   The conclusions reached by the Speaker cannot be held to be  unreasonable, assuming that two views were possible. Under the aforesaid circumstances, we are unable to find  any illegality in the impugned orders holding that the  petitioners (in Writ Petition Nos. 290, 291, 293 and 294 of  2004) have incurred disqualification as provided in paragraph  2(2) of the Tenth Schedule of the Constitution of India. Now, we revert to the disqualification of the petitioners in  Writ Petition Nos. 287 and 292 of 2004.   It is not disputed  that these petitioners have joined Indian National Congress.   As already noted, these petitioners were lone members  representing their respective parties in the Legislative  Assembly.   The Speaker in their cases has held that the  protection of paragraph 3 of the Tenth Schedule is not

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available to a single member party.   According to the  petitioners, they are covered by the protected 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.   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 \026 (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 of a House makes a claim that he and  any other members of his legislature party  constitute the group representing a faction  which has arisen as a result of a split in his  original party and such group consists of not  less than one third of the members of such  legislature party,- (a)     he shall not be disqualified under sub- paragraph (1) of paragraph 2 on the  ground \026 (i)     that he has voluntarily given up his  membership of his original political  party; or  (ii)    that he has voted or abstained from  voting in such House contrary to  any direction issued by such party  or by any person or authority  authorized by it in that behalf  without obtaining the prior  permission of such party, person or  authority and such voting or  abstention has not been condoned  by such party, person or authority  within fifteen days from the date of  such voting or abstention; and  (b)     from the time of such split, such faction  shall be deemed to be the political party  to which he belongs for the purposes of  sub-paragraph (1) of paragraph 2 and to  be his original political party for the  purposes of this paragraph."             The case of the petitioners is that each of them constitute  a group representing a faction which has arisen as a result of  split in their respective original political parties and this group

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consist of not less than one third of the members of the  legislature party.  They say that this group consists of 100%  since both of them were the only members of the legislature   party in the Assembly and the requirement of paragraph 3 is  that the group to be entitled to the protection of the said  paragraph is to be of not less than ’one third’ of the members  of such legislature  party.  They say that 100% is more than  one third and even otherwise when group of not less than one  third is protected, the paragraph cannot be interpreted in a  manner which will deprive a group of 100% of the protection.   The submission is that once the sole member of a party is  recognized by Speaker as constituting the legislature  party in  the Vidhan Sabha, the benefit of paragraph 3 has to be given  to the said sole member as it would be a case of more than  one-third members of the legislature  party representing the  group. In the first paragraph of the Tenth Schedule, expressions  ’legislature party’ and ’original political party’ have been  defined which read as under : "1. Interpretation.\027In this Schedule,  unless the context otherwise requires, \027  (a)     \005\005\005\005. (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)     \005\005\005\005."

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. 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 the interpretation of paragraph 3  under which protection is sought by the petitioners.   The words in paragraph 3 are ’he and any other members  of his legislature party’.  The further requirement is of such  members constituting ’the group’ representing a faction.  It is  the group which has to represent a faction which has arisen  as a result of split in the original political party.  It is such  ’group’ which is to consist of not less than one third of the  members of such legislature  party.  The question also is as to  the interpretation of the expression ’original political party’  mentioned in paragraph 3.  Further, the contention is that for  the applicability of paragraph 3, mere making of a claim about  the split is sufficient and nothing more is required to be shown  in so far as split is concerned.  The submission is that mere  making of claim as to the split would entitle a member to the  protection of Paragraph 3 subject, of course, to the fulfillment  of other conditions laid therein.

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The petitioner Jagjit Singh (Writ Petition No. 287/2004)  was a sole elected member of the political party ’NCP’.  He  claims that there was a split in the national unit of ’NCP’ as a  result whereof a political party named Democratic Dal of  Haryana was formed on 20th December, 2003.  On 29th  December, 2003 the petitioner intimated the Speaker about  the split and formation of the new political party and  requested the Speaker to accept the new legislature  party and  treat the petitioner as a member of the said party.  On 31st  December, 2003 respondent No. 3 filed a complaint before the  Speaker \026 respondent No. 2 alleging disqualification on the  ground that the petitioner has incurred disqualification by  voluntarily defecting from ’NCP’ and founding/joining the  Democratic Dal of Haryana.  On 30th April, 2004 Democratic  Dal of Haryana is said to have merged with the Indian National  Congress in accordance with paragraph 4 of the Tenth  Schedule.  The petitioner, for a long time, could not be served  with the notices issued by the Speaker on the complaint of  respondent No.3.  The impugned order notices steps that had  to be taken for effecting substituted service on the petitioner.   Ultimately, he was served on 5th June, 2004.  Thereafter, the  petitioner has been repeatedly seeking adjournments in  proceedings before the Speaker.  He, however, filed 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.   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.  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.                      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 represented by group of MLAs in the House  which consists of not less than one-third of the members  of such legislature party. Re. (a) The submission urged on behalf of the petitioners is that  only requirement of this paragraph is that a claim of split is  made by the member of the House and it is not the  requirement to even prima facie show that such claim is  correct or not.  The disqualification under paragraph 2(1)(a) is  incurred when a member of the House voluntarily gives up  membership of his original political party.  Paragraph 2 is,  however, subject to paragraph 3 of the Tenth Schedule.  If  conditions of paragraph 3 are satisfied, despite giving up  membership voluntarily, a member would not incur  disqualification under paragraph 2.  Paragraph 3 proceeds on  the assumption that but for the applicability of the said  provision the disqualification under paragraph 2 would be  attracted.  The burden to prove the requirements of paragraph  2 is on the person who claims that a member has incurred the  disqualification. The burden to prove the requirements of

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paragraph 3 is on the member who claims that there has been  a split in his original political party and for that reason  disqualification under paragraph 2 is not attracted.  In Ravi S.  Naik, it was observed that : "In the present case Naik has not  disputed that he has given up his  membership of his original political party  but he has claimed that there has been a  split in the said party. The burden,  therefore, lay on Naik to prove that the  alleged split satisfies the requirements of  paragraph 3. The said requirements are:  (i)     The member of a House should  make a claim that he and other  members of his legislature party  constitute the group representing a  faction which has arisen as a result  of a split in his original party; and (ii)    Such group must consist of not less  than one-third of the members of  such legislature party."                  Learned counsel for the petitioner, however, relies upon  paragraph 37 in Ravi S. Naik’s case  in support of the  submission that only a claim as to split has to be made and it  is not necessary to prove the split.  The said observations are : "In the present case the first requirement  was satisfied because Naik has made  such a claim.  The only question is  whether the second requirement was  fulfilled."

       The observations relied upon are required to be  appreciated in the light 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."

       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 him that such a split has  taken place.         In the present case, the Speaker has held that the  petitioner has failed to satisfy that split in the original party,  namely, NCP had taken place.  According to the petitioner, he  had formed/joined a new political party on 20th December,  2003 having been elected on the ticket of NCP in February

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2000.  On 20th December, 2003, a new political party by the  name of Democratic Congress Party of Haryana was formed.   The petitioner voluntarily gave up membership of NCP on 20th  December, 2003 and joined this newly formed party.  On these  facts, the disqualification of voluntarily giving up membership  of NCP stands attracted subject to the claim of the petitioner  under paragraph 3.  The petitioner had to prove that the  stipulations of paragraph 3 are satisfied.  The Speaker has  held that no valid proof or evidence was placed on record to  show that split had indeed taken place in NCP on 20th  December, 2003 or at any other time.  It has further been  noted by the Speaker that several times the respondent had  been asked the names and addresses of the office bearers of  the original political party at the National and State level as  well as the names and addresses of the office bearers of the  NCP who attended the meeting in which resolution dated 20th  December, 2003 was passed.  The petitioner, despite  opportunity, did not give any satisfactory response or reply in  this regard.  The Speaker further held that it is only in the  original party of NCP, the split had to be proved and not in the  Legislative Party of Haryana.  The complainant had specifically  taken the plea in the complaint that no such split in NCP had  taken place.  The reply of the petitioner to the said assertion is  that he is only claiming that a split was caused by the party  workers in the original political party on 20th December, 2003  and that information had been sent to the Speaker as well as  to the Election Commission of India.  The Speaker, on the  basis of material on record, has come to the conclusion that  the petitioner was wanting to treat his own defection allegedly  supported, according to the petitioner, by some party workers  at local level as a split in his original political party.  Such a  plea was not accepted by the Speaker.  We think the Speaker  is right.  Such a split, if held to be valid for the purposes of  paragraph 3, would defeat the very purpose of the law.  The  requirement is not the split of the local or State wing of  original political party but is of original political party as  defined in paragraph 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’.   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 of a member of the House  of that State Legislature. It is further  made clear that in the case of split one- third members of the State Legislature  belonging to that political party must  form a group to make the split effective  within the State Legislature. Likewise for

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the purpose of (sic) merger within the  meaning of paragraph 4, two-thirds of the  members of the State Legislature party  must have agreed to such merger. Thus,  while deciding the disqualification of the  member of the State Legislature the  events that have taken place at the  national level have no concern to decide  whether there is a split or (sic) merger. To  elucidate this point one may take the  case of split of a national political party at  the national level but in a particular State  the members of that political party do not  want to split and they want to continue  the State unit intact. In such an event  the split or events that have taken place  at the national level of the political party  will have no effect on the State unit of  that political party and the political party  at the State level continues to be in the  original form. Likewise there may not be a  split at the national level but at the State  level there may be a split in the State unit  of that political party and one-third of the  members of the State Legislature  constitute the group representing the  faction as a result of the split in the State  unit of the political party. Then the split  comes into existence even though there is  no split as such at the national level. The  scheme of Tenth Schedule is to be looked  from the point of view of State units of  political parties when the question of  disqualification arises within the State  Legislative Assembly. Thus, according to  us if there is a split of a political party at  the State level and one-third members of  the Legislature party of that political  party at the State level consists of the  group representing that faction which  splits away from the original political  party then the split comes into existence  and is effective."

The Full Bench, in the above case, was considering the  legality of the Order of the Deputy Speaker of Punjab  Legislative Assembly whereby he declined to declare  Respondent Nos.3 and 4 as disqualified under paragraph 2 of  Tenth Schedule.  The said respondents were candidates put  up by Bhartiya Janata Party in assembly elections held in  February 1992 in which they 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

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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 must form a  group to make the split effective within the State Legislature  but it does not lead to the conclusion that the Parliament  intended to treat State Unit of a political party as a separate  entity for the purposes of the benefit of paragraph 3.   Paragraph 1(c) defining original political party and explanation  as given in paragraph 2(1) have already been noticed  hereinbefore.  It is clear from a bare reading thereof that the  elected member belongs to the political party by which he is  set up as a candidate for election as such member.  From the  plain language of these provisions, it cannot be held that for  the purposes of the split, it is the State Legislature party in  which split is to be seen.  If a member is set up by a National  Party, it would be no answer to say that events at National  level have no concern to decide whether there is a split or not.   In case a member is put up by a National Political party, it is  split in that party which is relevant consideration and not a  split of that political party at the State level.   We may also refer to the decision in G. Viswanathan v.  Hon’ble Speaker Tamil Nadu Legislative Assembly,  Madras & Anr. [(1996) 2 SCC 353], the observation whereof  clearly show that the relevant factor is of the political party by  which a member is set up as a candidate for election as such  member.  It would be useful to reproduce paragraph 13 from  the said judgment : "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 Legislature 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

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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."

The Punjab case is not correctly decided.   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 placed before  him came to the conclusion that there was no split as  contemplated by paragraph 3 of the Tenth Schedule.  The  finding of the Speaker cannot be faulted.  In fact, letter of the  petitioner dated 17th June sent to the Speaker itself shows  that what was claimed was that the Haryana unit of the  Republican Party of India effected a split in the original party  on 21st December, 2003.  The finding that the claim of split  was made as an afterthought to escape disqualification under  paragraph 2(1)(a) of the Tenth Schedule cannot be held to be  unreasonable or perverse.  The Speaker was justified in  coming to the conclusion that despite various opportunities,  no valid proof or evidence was placed on record by the  petitioner to show that indeed a split had taken place in the  original political party, i.e., Republican Party of India on 21st  December, 2003. It is a matter of great anguish that the mode of  substituted service had to be resorted to, to serve elected  members of a Legislative Assembly. The manner in which the matter proceeded before the  Speaker after complaint was filed is evident from the  impugned order, relevant part whereof reads as under : "Notice was issued to the respondent and  copies were forwarded to him in the  manner provided under Para-7 of the  Rules of 1986.  A period of one month  from the date of issue of the notice was  given to the Respondent to file his reply  to the Petition.  However, the record  reveals that the Registered-AD letter  dated 17.3.2004 containing the notice,  was received back undelivered with the  report of the serving agency (Postal  Department) dated 30.3.2004.  This  report when translated, stated that "the  addressee is not contactable and no one  else is ready to take the registered letter  and, therefore, the letter is being  returned."  The report itself mentions that  the official of the postal department  visited the given address of the  respondent on 25.3.2004, 26.3.2004,  27.3.2004 and 28.3.2004.         In view of this it was again ordered  that the respondent be served with the  notice of the petition by Registered-AD  post.  Accordingly Registered-AD letter

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dated 23.4.2004 was sent to the  respondent to submit his comments to  the petition before 11.5.2004.  This letter  was also received back undelivered with  the accompanying report dated 5.5.2004  of the serving agency, which in terms,  was to the same effect as the earlier  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 respondent asking him to submit his  reply by 4.6.2004, the request of the  respondent for giving him six weeks time  could not be granted and he was duly  informed on 28.5.2004 through telegram  to submit his reply by 4.6.2004.         When the case was taken up on  4.6.2004, an application dated 4.6.2004  was submitted by the respondent seeking  permission to file a detailed reply to the  petition and four weeks more time was  prayed for this purpose as well as the  opportunity of being assisted by an  advocate was asked for.  Although more  than sufficient time had been granted to  the respondent to furnish his  comments/reply by this Authority and in  view of the fact that by letter dated  18.5.2004 he had already been asked to  submit his reply by 4.6.2004, therefore,  no case was made out to grant the  respondent any more time.  However, in  the interest of justice a final opportunity  was granted to the respondent and he  was asked to submit the detailed  comments on the petition latest by  11.6.2004.  An opportunity of personal

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hearing was also granted to the  respondent along with the assistance of  an Advocate, if desired.  On 4.6.2004, it  was intimated to the respondent  telegraphically as well as by Registered  Post/Courier and fax and through  SDO(C), Palwal to submit his detailed  reply by 11.6.2004 and also to appear at  11 AM on 11.6.2004 in the Haryana  Vidhan Sabha before this Authority with  the assistance of an Advocate, if desired.         Consequently, the respondent put in  appearance at 11 AM on 11.6.2004 along  with his counsel Sh. Joginder Pal  Sharma, Advocate and submitted an  Application dated 11.6.2004 seeking  permission to inspect the record and for  obtaining the certified copies of the  documents mentioned in Para 3 of the  application.  In the interest of justice, a  detailed order was passed on 11.6.2004  allowing the application of the respondent  and granting permission to him to inspect  the record and also for supply of certified  copies of the documents which were  demanded by the respondent.  An  intimation of the order passed by this  Authority was conveyed to the respondent  by the Secretary vide letter dated  11.6.2004 which was received by the  respondent on the same day at 5.30 pm  as the record reveals.  By this letter it  was also conveyed to the respondent that  permission to inspect the record at 10 AM  on 14.6.2004 had also been granted.  The  certified/Photostat copies as asked for 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."

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The position is almost same in both cases. Re : (b)         The words ’he and any other person’ and the words ’the  group’ in paragraph 3 on the plain reading shows that the  benefit of paragraph 3 is not available to a single member  legislature party.  It was, however, contended that the words  ’he and any other person’, in the context of a recognized single  member legislature party should be read and understood as  ’he or he and any other members of his legislature party  constitute the group’.  We cannot read words in the  Constitution which do not exist.  The contention is that once a  single member legislature party is recognized by the Speaker,  the benefit of paragraph 3 has to be given to the sole member  representing that party as it would be a case of 100%  representing break away group.  Undoubtedly, paragraph  2(1)(a) is subject to the provisions of paragraphs 3, 4 and 5  and if paragraph 3 applies and ingredients thereof are satisfied  the member would not attract disqualification under  paragraph 2(1)(a).  In that sense paragraph 3 overrides  paragraph 2(1)(a).  The factor that a single member legislature  party is recognized by the Speaker is of no relevance in  interpreting paragraph 3 of the Tenth Schedule.  In the  context of the language of paragraph 3 of the Tenth Schedule,  Section 13(2) of the General Clauses Act, 1897 which requires  that unless there is anything repugnant in the subject of  context, ’words in the singular shall include the plural, and  vice-versa’ has no applicability.  It is, ordinarily, not the  function of the Court to read words into a statute.  The Court  must proceed on the assumption that the Legislature did not  make a mistake and it intended to say what it said.  It is well  settled that "the Court cannot add words to a statute or read  words into it which are not there, especially when the literal  reading produces an intelligible result’ {See P.K. Unni v.  Nirmala Industries & Ors. [(1990) 2 SCC 378]}.  The  contention is that when paragraph 3 protects when there is  defection of a group consisting of not less than one-third of the  members of a legislature party, the intention of law can never  be to deprive such a benefit where group is 100%.  We are  unable to accept this contention for more than one reason.   Firstly, there is no contradiction or ambiguity or defect or  omission in paragraph 3; secondly, there is no manifest  contradictions insofar as the apparent object of the defection  law is concerned in paragraph 3 depriving the benefit of single  member legislature party; thirdly the legislature is assumed to  have known the existence of single member legislature party;  and finally from the language of paragraph 3, it is evident that  the Parliament did not intend to grant the benefit of paragraph  3 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’.           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.         Lastly, we will consider the ground of personal malafides.  It is alleged that a telephone call was made by the Speaker to

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the petitioners asking them not to vote in the Rajya Sabha  election.  The averments made in Writ Petition 287 of 2004  are: "That with a sense of utmost  responsibility, the Petitioner states that  the Respondent No.2 had called up the  Petitioner on his mobile phone on  24.6.2004 asking the Petitioner that if he  decides to abstain from voting, then  disqualification can be avoided."

       The Speaker has not filed any reply.  It is true that the  aforesaid averments have remained unrebutted.   The contention is that adverse inference should be drawn  against the Speaker and the impugned orders set aside on the  ground of malafides of the Speaker.   The question of drawing adverse inference in view of  Speaker not rebutting the aforesaid averments would depend  upon the satisfaction of the Court, having regard to the facts  and circumstances of the case.  Ordinarily, the adverse  inference can be drawn in respect of allegations not traversed,  but there is no general rule that adverse inference must  always be drawn, whatever the facts and circumstances may  be.  The facts and circumstances of the present case have  already been noticed as to how the petitioners have been  avoiding to appear before the Speaker; how the proceedings  were being delayed and long adjournments sought on ground  such as non-availability of senior advocates because of court  vacations.  In the light of these peculiar facts and  circumstances, a telephone call like the one alleged can mean  that further adjournment as sought for by the petitioners is  possible if they do not vote in the Rajya Sabha election on 28th  June, 2004.  On facts, we are unable to draw adverse  inference and accept the plea of malafides.         Before parting, another aspect urged before us deserves  to be considered.  However, at the outset, we do wish to state  that the Speaker enjoys a very high status and position of  great respect and esteem in the Parliamentary Traditions.  He,  being the very embodiment of propriety and impartiality, has  been assigned the function to decide whether a member has  incurred disqualification or not.  In Kihoto Hollohan’s  judgment various great Parliamentarians have been noticed  pointing out the confidence in the impartiality of the Speaker  and he being above all parties or political considerations.  The  High office of the Speaker has been considered as one of the  grounds for upholding the constitutional validity of the Tenth  Schedule in Kihoto Hollohan’s case.           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

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disqualification as a result of defection need to be exercised in  accordance with the opinion of the Election Commission as in  the case of decision on question as to disqualification of  members provided for in Article 103 and 194(2) of the  Constitution (See Anti-Defection Law and Parliamentary  Privileges by Dr. Subhash C. Kashyap, M.P. Jain’s Indian  Constitutional Law, 5th Edn., Constitutional Law of India, 2nd  Edn. by T.K. Tope, Reviewing the Constitution edited by Dr.  Subhash C. Kashyap & Ors., First V.M. Tarkunde Memorial  Lecture on "Indian Democracy Reality or Myth?" delivered by  Shri Soli J. Sorabjee).   Whether to vest such power in the Speaker or Election  Commission or any other institution is not for us to decide.  It  is only for the Parliament to decide.  We have noted this aspect  so that the Parliament, if deemed appropriate, may examine it,  bestow its wise consideration to the aforesaid views expressed  also having regard to the experience of last number of years  and thereafter take such recourse as it may deem necessary  under the circumstances.         As a result of the aforesaid discussions, we find no merit  in the writ petitions.  Writ Petition Nos.287/2004 and 290 to  294/2004 are, accordingly, dismissed.