IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL)NO.317 of 2010

Amar Singh   …    Petitioner Vs.

Union of India   …    Respondent

WITH WRIT PETITION (CIVIL)NO.343 of 2010

Jaya Pradha   …    Petitioner Vs.

Union of India   …    Respondent

J U D G M E N T  

ALTAMAS KABIR,J.

1. These  two  writ  petitions  have  been  taken  up  

together to consider whether Rule should be issued  

as identical issues have been raised in both the  

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matters and identical relief has also been sought  

for.

2. Both the writ petitioners were formerly members  

of the Samajwadi Party, of which Shri Mulayam Singh  

Yadav is the President.  While Shri Amar Singh was  

one of the senior-most members of the party and had  

also held the post of All India General Secretary  

and was its National Spokesperson and had also been  

a Member of the Rajya Sabha for three terms, Ms.  

Jaya Pradha is also a prominent political leader who  

was elected to the Lok Sabha from the State of Uttar  

Pradesh and was elected for a Second Term to the Lok  

Sabha as a Member of the Samajwadi Party.  Earlier,  

she had also been a Member of the Rajya Sabha from  

the said party.   

3. In addition to the above, Shri Amar Singh is  

also  a  member  of  four  different  Parliamentary  

Committees and Ms. Jaya Pradha is a member of one  

such Committee.   

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4. The case made out by Shri Amar Singh is that on  

account  of  medical  reasons  and  other  personal  

difficulties he was constrained to resign from the  

posts of General Secretary and National Spokesman of  

the  Samajwadi  Party  on  6th January,  2010.   He,  

however, continued to be a member of the party till  

he  was  expelled  therefrom  on  2nd February,  2010.  

Thereafter, he was treated as an Independent Member  

of  Parliament  (MP)  which  will  be  evident  from  a  

glance at the alphabetical list of Members of the  

Rajya Sabha maintained by Parliament, produced on  

Shri Amar Singh’s behalf.

5. The common case of both the writ petitioners is  

that  they  have  had  to  approach  this  Court  under  

Article  32  of  the  Constitution  in  view  of  the  

imminent threat to their continuance as Members of  

Parliament, both Rajya Sabha and Lok Sabha, in view  

of the decision of this Court in the case of  G.  

Viswanathan vs.  Hon’ble  Speaker  Tamil  Nadu  

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Legislative Assembly, Madras & Anr. [(1996) 2 SCC  

353].

6. In the said  case this Court was called upon to  

consider,  inter  alia,  the  effect  of  paragraph  

2(1)(a)  and  Explanation  (a)  thereto  in  the  Tenth  

Schedule to the Constitution of India with regard to  

members  of  political  parties  who  are  expelled  

therefrom and have not voluntarily given up their  

membership of such political party.  What also fell  

for consideration is Explanation (a) which provides  

that for the purposes of paragraph 2(1) 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.  

7. In  considering  the  said  question,  this  Court  

held that in view of the Explanation to Paragraph  

2(1)of  the  Tenth  Schedule,  even  if  a  member  is  

expelled from his party, for the purposes of the  

Tenth  Schedule,  he/she  would  not  cease  to  be  a  

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member of the political party that had set him up as  

a candidate for the election and he would continue  

to remain attached to that political party even if  

he is treated as “unattached”.   

 8. This Court, inter alia, held that when a person  

who has been thrown out or expelled from the party  

which set up him as a candidate and was ultimately  

elected,  joins  another  party,  it  would  certainly  

amount  to  his  voluntary  abandonment  of  the  

membership of the political party which had set him  

up as a candidate for election as such Member.  It  

was held that if he, on his own volition, joined  

another political party, he must be taken to have  

acquired the membership of the other political party  

by  abandoning  the  political  party  to  which  he  

belonged or must be deemed to have belonged under  

the  Explanation  to  Paragraph  2(1)  of  the  Tenth  

Schedule.   

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9. It was further held that Paragraph (1)(b) of the  

Tenth Schedule cannot be read in isolation and had  

to be read with Paragraphs 2, 3 and 4 thereof.  It  

was also observed that Paragraph 2(1) read with the  

Explanation  clearly  pointed  out  that  an  elected  

Member would continue to belong to that political  

party by which he was set up as a candidate for  

election as such Member.  This is so notwithstanding  

the fact that he had been thrown out or expelled  

from that party.  It was explained that that was a  

matter  between  the  Member  and  his  party  and  had  

nothing to do so far as the deeming clause in the  

Tenth Schedule is concerned.  In other words, the  

action  of  a  political  party  in  relation  to  its  

member has no significance and cannot impinge on the  

fiction of law under the Tenth Schedule.  This Court  

went on further to hold that labeling of a Member as  

“unattached” finds no place nor has any recognition  

in the Tenth Schedule and the classification of the  

Members in the Tenth Schedule proceeds only on the  

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manner of their entry into the House, namely, (1)  

one who has been elected on his being set up by a  

political party as a candidate for election as such  

member; (2) one who has been elected as a member  

otherwise  than  as  a  candidate  set  up  by  any  

political  party  —  usually  referred  to  as  an  

‘independent’ candidate in an election; and (3) one  

who has been nominated.  It was also held that it is  

impermissible  to  invent  a  new  category  or  clause  

other  than  the  one  envisaged  or  provided  in  the  

Tenth Schedule of the Constitution.  In that view of  

the matter, this Court came to the conclusion that  

the deeming fiction indicated in Explanation (a) to  

Paragraph (2) of the Tenth Schedule has to be given  

full effect as otherwise the expelled Member would  

escape the rigour of the law which was intended to  

curb the evil of defections which has polluted our  

democratic polity.   

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10. Mr.  Harish  N.  Salve,  learned  Senior  Advocate  

appearing for Shri Amar Singh, urged that it was not  

the  legislative  intent  to  bring  persons,  who  are  

expelled  from  their  political  party,  within  the  

ambit of the Tenth Schedule and that the same would  

be  evident  from  the  parliamentary  debates  which  

followed the tabling of the Bill, which ultimately  

resulted in the introduction of the Tenth Schedule  

in  the  Constitution.   Mr.  Salve  referred  to  the  

Parliamentary Debates relating to the Constitution  

(52nd Amendment)  Bill,  1985,  by  which  the  Tenth  

Schedule was introduced in the Constitution.  In the  

Draft Bill, besides Clauses (a) and (b) to Paragraph  

(1) of the Tenth Schedule, Clause (c) had also been  

included, which reads as follows :    

“(c)  if  he  has  been  expelled  from  such  political  party  in  accordance  with  the  procedure established by the Constitution,  rules  or  regulations  of  such  political  party.”    

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11. Mr. Salve submitted that the said clause was the  

subject matter of heated debate when the Bill was  

tabled in the Parliament and moved by the then Law  

Minister, Mr. Ashok Sen.  In fact, Mr. Sen in his  

speech, while introducing the Bill, omitted the said  

clause from the Bill which later on became the Tenth  

Schedule to the Constitution.  Mr. Salve drew our  

attention  to  the  statement  made  by  Shri  Sharad  

Dighe, who, while supporting the Bill, objected to  

the inclusion of Clause 2(1)(c) in the Bill in the  

following terms:  

“Now, there have been several clauses in this  Bill and I am happy that the Law Minister has  also announced that two of the clauses are to be  amended.   As  far  as  clause  2  sub-clause  (1)  paragraph  (C)  is  concerned,  that  has  to  be  deleted  and  paragraph  (b)  has  to  be  amended  suitably.  It was very much necessary to delete  paragraph  (c)  because  if  a  Member  has  to  be  expelled from a political party in accordance  with the procedure for anything done outside the  House, it would have created several practical  problems  and  it  would  have  given  a  handle  especially  to  the  bosses  of  similar  parties;  where  this  paragraph  would  have  created  some  difficulties.  Therefore, the main principle of  this  disqualification  is  that  for  something  

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which  a  Member  does  in  this  House,  in  the  presence of the Presiding Officer such as voting  against  the  Party  or  abstaining  from  voting  against the direction of the Party.  Now this is  something  which  is  proved  beyond  doubt.   No  other  enquiry  is  by  any  other  committee  or  anybody else.  So it is very clear that any act  done by a member in the presence of a Presiding  Officer,  namely,  voting  or  abstaining  from  voting  would  entail  him  to  this  disqualification.  So there is no chance or any  injustice being done nor is there any scope for  any doubt whether he has committed that act or  not.  Therefore, from that point of view, acts  done outside the House have been deleted or are  proposed to be deleted now because there would  have been the question of proving them.  Some  doubt may arise and there will be questions of  giving a hearing to that member also and rules  of  natural  justice  would  have  also  to  be  followed.”   

12. Mr. Salve urged that in  G. Viswanathan’s case  

(supra) the introduction of the Bill comprising the  

Constitution Fifty-second Amendment which led to the  

introduction  of  the  Tenth  Schedule  in  the  

Constitution, was probably not considered since the  

intention of including clause (c) in paragraph 2 of  

the  Tenth  Schedule  was  subsequently  dropped.   In  

G. Viswanathan’s case (supra), in order to give a  

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status in the House to Members expelled from their  

parties, the Court treated such Members at par with  

those who had voluntarily resigned their membership  

from such party by applying the provisions of the  

Explanation to paragraph 2(1) of the Tenth Schedule,  

which,  in  fact,  was  not  the  intention  of  the  

legislature.  Submitting that the decision rendered  

in  G.  Viswanathan’s  case  (supra)  had  highly  

prejudicial consequences for persons expelled from  

the membership of a political party, which was not  

the intention of the legislature, and had been so  

expressed in the debates in respect of the Bill, Mr.  

Salve contended that the decision in the said case  

required a re-visitation of the law. Mr. Salve also  

urged  that  the  consequences  of  what  had  been  

propounded in  G. Viswanathan’s case (supra) would  

have  dangerous  portents  if  a  Member,  properly  

elected by the voters of a particular constituency,  

could be deprived of his membership of the House  

merely on the whims and fancies of the leaders of  

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his party even though he may not have voluntarily  

resigned  from  the  party  which  would  then  have  

attracted the provisions of paragraph 2(1)(a) of the  

Tenth Schedule to the Constitution.  

13. Mr. K.K. Venugopal, learned Senior Advocate, who  

appeared  for  Ms.  Jaya  Pradha,  while  adopting  and  

reiterating the submissions of Mr. Salve, submitted  

that on account of the decision in G. Viswanathan’s  

case (supra), even an expelled Member stood exposed  

to the party whip in the House, if he was to be  

deemed to be, for all practical purposes, a member  

of the said party which had expelled him, in the  

House.    

14. We had requested the learned Attorney General to  

assist  the  Court  in  the  matter  and  he  has  also  

concurred with the submissions made on behalf of the  

writ  petitioners  that  the  decision  in  

G.  Viswanathan’s  case  (supra)  required  a  second  

look.

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15. We are also convinced that in the background of  

the legislative history of the introduction of the  

Tenth Schedule in the Constitution, in which it was  

initially  intended  to  include  expelled  Members  

within  the  ambit  of  the  provisions  relating  to  

disqualification,  the  same  was  dropped  after  the  

debate in Parliament in which the dangerous effects  

of the inclusion of such a sub-clause were pointed  

out by many of the Members in the House.  If it was  

the  intention  of  the  legislature  not  to  include  

expelled  members  of  a  political  party  within  the  

category of persons who could be clubbed with the  

category of persons who voluntarily resigned from  

membership of their parties, the same could not have  

been imported into the Tenth Schedule by virtue of  

the judicial pronouncement in the said case.  In  

fact,  what  was  sought  to  be  excluded  by  the  

legislature has now been introduced into the Tenth  

Schedule by virtue of the said decision.   

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16. We are also convinced that the decision in  G.  

Viswanathan’s case (supra) merits another look as  

far as the Members of the House who are expelled  

from their parties on whose banner they had been  

elected to the House, are concerned, as they would  

be  left  completely  vulnerable  to  the  whims  and  

fancies  of  the  leaders  of  their  parties.   We,  

therefore, issue Rule in the two Writ Petitions and  

request Hon’ble the Chief Justice of India to refer  

the  matter  to  a  larger  Bench  on  the  following  

questions :-

1. What is the status in either House of  

Parliament  or  the  State  Legislatures  of  a  

Member who is expelled from the party which set  

him/ her up as a candidate for election ?

2. Will  the  provisions  of  the  Tenth  

Schedule  to  the  Constitution  apply  to  such  

Member ?

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3. Was  the  view  taken  in  G.  

Viswanathan’s  case  [(1996)  2  SCC  353],  with  

regard  to  the  status  of   Members  in  either  

House  of  Parliament  who  had  not  voluntarily  

resigned  from  their  party   but  had  been  

expelled  therefrom,  in  harmony  with  the  

provisions  of  the  Tenth  Schedule  to  the  

Constitution ?

4. In view of the fact that Members of  

the two Houses of Parliament, who are expelled  

from the membership of the parties which had  

set them up as candidates in the election, are  

not referred to in the Tenth Schedule to the  

Constitution,  was  the  decision  in  G.  

Viswanathan’s case that they must be deemed to  

continue to belong to such party in view of  

Explanation (a) to paragraph 2(1) of the Tenth  

Schedule, a correct interpretation of the said  

provisions, having regard to the Parliamentary  

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debates  on  the  Bill  which  became  the  Tenth  

Schedule ?

5. Can Explanation (a) to paragraph 2(1)  

of the Tenth Schedule to the Constitution be  

extended to include Members of the two Houses  

of  Parliament  who  are  expelled  from  their  

parties?

6. When  a  Member  of  either  House  of  

Parliament is expelled by the party which had  

set him up as a candidate for election and he  

either joins another political party or forms  

his  own  party,  can  it  be  said  that  he  had  

voluntarily  given  up  his  membership  of  the  

party in view of the legal fiction created by  

Explanation (a) to paragraph 2 (1) of the Tenth  

Schedule ?

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7. What is the status of an ”unattached”  

Member in either House of Parliament or in the  

State Legislatures ?

17.   Pending  the  reference,  the  decision  in  G.  

Viswanathan’s case (Supra) shall not be applied to  

the two writ petitioners, Shri Amar Singh and Ms.  

Jaya Pradha.

18. Let the records of the two writ petitions be  

transmitted to the Secretariat  of Hon’ble the Chief  

Justice immediately.

…………………………………………J. (ALTAMAS KABIR)

………………………………………J. (CYRIAC JOSEPH)

November 15, 2010 New Delhi        

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