http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

CASE NO.: Writ Petition (civil)  322 of 2004

PETITIONER: Dr. Mahachandra Prasad Singh

RESPONDENT: Chairman, Bihar Legislative Council & Ors.

DATE OF JUDGMENT: 27/10/2004

BENCH: CJI R.C. Lahoti, G. P. Mathur & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

(with W.P. (Civil) No. 370 of 2004)

G. P. MATHUR, J.

1.      This petition, under Article 32 of the Constitution, has been filed for  quashing the order dated 26th June, 2004 of Chairman of Bihar Legislative  Council holding that the petitioner is disqualified for being a member of the  House under paragraph 2(1)(a) of the Tenth Schedule read with Article  191(2) of the Constitution and consequently the seat held by him in the  Bihar Legislative Council had fallen vacant from the said date.

2.      The petitioner was elected as a member of the Bihar Legislative  Council (MLC) from Tirhut Graduate Constituency as a candidate of Indian  National Congress.   The notification for holding elections to Fourteenth  Lok Sabha was issued in March, 2001.   The petitioner contested the said  election from Maharajganj Parliamentary Constituency as an independent  candidate.   Shri Salman Rageev, a member of Bihar Legislative Council,  sent a petition to the Chairman of the Legislative Council on 10th June, 2004  stating, inter alia, that the petitioner, who was a member of the Congress  Party, had contested the parliamentary election from Maharajganj  Constituency as an independent candidate and consequently in view of the  provisions of the Tenth Schedule to the Constitution he had become  disqualified for being a member of the House.   The petitioner was asked to  submit his explanation vide letter dated 12th June, 2004 of the Secretary of  the Council.   After considering the explanation offered by the petitioner,  the Chairman of the Legislative Council passed the impugned order dated  26th June, 2004 holding that the petitioner had contested the election for  Bihar Legislative Council in the year 1998 as a candidate of the Congress  Party and was a member of the said political party and that he had contested  the Lok Sabha Election, 2004, as an independent candidate, and thus he had  voluntarily given up his membership of the Congress party and, therefore,  he was disqualified for being a member of the House in view of paragraph  2(1)(a) of the Tenth Schedule read with Article 191 (2) of the Constitution  and the seat held by him in the House has become vacant.

3.      Shri P.S. Mishra, learned senior counsel, has raised three contentions  in assailing the order dated 26th June, 2004 passed by the Chairman, Bihar  Legislative Council.   The first submission is that in absence of compliance  of Rules 6 and 7 of the Bihar Legislative Council Members  (Disqualification on ground of Defection) Rules, 1994, the assumption of  jurisdiction by the Chairman in initiating the proceedings, whereunder the  petitioner was held to be disqualified for being a member of the House, was  illegal.   The second submission is that there was violation of principles of  natural justice as the material relied upon by the Chairman was not  disclosed to the petitioner nor a proper opportunity of personal hearing was  afforded to him.   The third and the last submission is that the petitioner had  not voluntarily given up membership of a political party by contesting the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

Lok Sabha Election as an independent candidate and, therefore, he had not  incurred any disqualification within the meaning of paragraph 2(1)(a) of the  Tenth Schedule.

4.      Before examining the contentions raised by the learned counsel for  the petitioner, it is necessary to look to the historical background in which  the Tenth Schedule was added to the Constitution.   On 8th December, 1967  the Lok Sabha passed a unanimous resolution constituting a Committee to  consider in all its aspects the problem of legislators changing their  allegiance from one party to another and their frequent crossing of the Floor  and make recommendations in this regard.   This Committee known as  "Committee on Defections" in its report dated 7th January, 1969 highlighted  the alarming rise in change of party allegiance by legislators.   Compared to  roughly 545 cases in the entire period between the First and Fourth General  Elections, at least 438 defections occurred in a short period between March  1967  and February, 1968.   Among independents, 157 out of a total of 376  elected joined various parties in this period.   Out of 210 defecting  legislators of the States of Bihar, Haryana, M.P., Punjab, Rajasthan, U.P.  and West Bengal, 116 were included in the Council of Ministers which they  helped to bring into being by defections.   The Committee noted multiple  acts of defections by the same person or set of persons and the belief held by  the people and expressed in the press that corruption and bribery were  behind some of these defections.  (See Kihoto Hollohan v. Zachillhu & Ors.  1992 (Supp) 2 SCC 651 paras 5 and 6).    

5.      Keeping in view the recommendations of the Committee on  Defections several Bills were introduced for amending the Constitution, but  they lapsed.   Finally, a Bill which was enacted into Constitution (Fifty- second Amendment) Act, 1985 was passed by which Tenth Schedule was  added with effect from 1.3.1985. The Statement of Objects and Reasons  appended to the Bill read as under :

1.      The evil of political defections has been a matter of  national concern.  If it is not combated, it is likely to  undermine the very foundations of our democracy and the  principles which sustain it. With this object, an assurance was  given in the Address by the President to Parliament that the  Government intended to introduce in the current session of  Parliament an anti-defection Bill.  This Bill is meant for  outlawing defection and fulfilling the above assurance.

2.      The Bill seeks to amend the Constitution to provide that  an elected member of Parliament or a State Legislature, who  has been elected as a candidate set up by a political party and a  nominated member of Parliament or a State Legislature who is  a member of a political party at the time he takes his seat or  who becomes a member of a political party within six months  after he takes his seat would be disqualified on the ground of  defection if he voluntarily relinquishes his membership of such  political party or votes or abstains from voting in such House  contrary to any direction of such party or is expelled from such  party.  An independent member of Parliament or a State  Legislature shall also be disqualified if he joins any political  party after his election.  A nominated member of Parliament or  a State Legislature who is not a member of a political party at  the time of his nomination and who has not become a member  of any political party before the expiry of six months from the  date on which he takes his seat shall be disqualified if he joins  any political party  after the expiry of the said period of six  months.  The Bill also makes suitable provisions with respect  to splits in, and mergers of, political parties.  A special  provision has been included in the Bill to enable a person who  has been elected as the presiding officer of a House to sever  his connections with his political party.  The question as to  whether a member of a House of Parliament or State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

Legislature has become subject to the proposed  disqualification will be determined by the presiding officer of  the House; where the question is with reference to the  presiding officer himself, it will be decided by a member of the  House elected by the House in that behalf.

3.      The Bill seeks to achieve the above objects.

       The provisions of the Tenth Schedule to the Constitution which are  relevant for the decision of the present case are being reproduced below :

1.      Interpretation \026 In this Schedule, unless the context  otherwise requires, -

(a)     ’House’ means either House of Parliament or the  Legislative Assembly or, as the case may be, either  House of the Legislature of a State;

(b)     ’legislative party’, in relation to a member of a House  belonging to any political party in accordance with the  provisions of paragraph 2, 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)     ’paragraph’ means a paragraph of this Schedule. 2.      Disqualification on ground of defection \026 (1) Subject  to the provisions of paragraphs 4 and 5, a member of a House  belonging to any political party shall be disqualified for being  a member of the House -

(a)     if he has voluntarily given up his membership of such  political party; or

(b)     if he votes or abstains from voting in such House contrary  to any direction issued by the political party to which he  belongs or by any person or authority authorized by it in  this behalf, without obtaining, in either case, the prior  permission of such political party, person or authority and  such voting or abstention has not been condoned by such  political party, person or authority within fifteen days  from the date of such voting or abstention.   

Explanation \026 For the purposes of this sub-paragraph, - (a)     an elected member of a House shall be deemed to belong  to the political party, if any, by which he was set up as a  candidate for election as such member;

(b)     \005\005\005\005\005\005\005\005\005\005 (Omitted as not relevant)

(2)     An elected member of a House who has been elected as  such otherwise than as a candidate set up by any political party  shall be disqualified for being a member of the House if he  joins any political party after such election.

(3)     \005\005\005\005\005\005\005\005\005. (Omitted as not relevant) (4)     \005\005\005\005\005\005\005\005\005. (Omitted as not relevant)

6.      Decision on questions as to disqualification on ground  of defection \026 (1) If any question arises as to whether a  member of a House has become subject to disqualification

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

under this Schedule, the question shall be referred for the  decision of the Chairman or, as the case may be, the Speaker  of such House and his decision shall be final;

       Provided that where the question which has arisen is as  to whether the Chairman or the Speaker of a House has  become subject to such disqualification, the question shall be  referred for the decision of such member of the House as the  House may elect in this behalf and his decision shall be final.

(2)     All proceedings under sub-paragraph (1) of this  paragraph in relation to any question as to disqualification of a  member of a House under this Schedule shall be deemed to be  proceedings in Parliament within the meaning of article 122 or,  as the case may be, proceedings in the Legislature of a State  within the meaning of article 212. 7.      Bar of jurisdiction of courts. \026 Notwithstanding  anything in this Constitution, no court shall have any  jurisdiction in respect of any matter connected with the  disqualification of a member of a House under this Schedule.

6.      The underlying object and the purpose which the Tenth Schedule  seeks to achieve were explained as under in Kihoto Hollohan (supra) and it  will be useful to keep them in mind while interpreting its provisions :

"Para 13 :      These provisions in the Tenth Schedule give  recognition to the role of political parties in the political  process.  A political party goes before the electorate with a  particular programme and it sets up candidates at the election  on the basis of such programme.  A person who gets elected as  a candidate set up by a political party is so elected on the basis  of the programme of that political party.  The provisions of  Paragraph 2(1)(a) proceed on the premise that political  propriety and morality demand that if such a person, after the  election, changes his affiliation and leaves the political party  which had set him up as a candidate at the election, then he  should give up his membership of the legislature and go back  before the electorate.  The same yardstick is applied to a person  who is elected as an Independent candidate and wishes to join a  political party after the election."   

7.      Paragraph 2 of the Tenth Schedule lays down the contingencies under  which a member of the House belonging to any political party shall be  disqualified for being a member of the House and they are enumerated in  sub-paras (1), (2) and (3).   Sub-para (2) deals with a situation where a  member of the House elected as an independent candidate joins any political  party after such election and sub-para (3) deals with a situation where a  nominated member of the House joins any political party after the expiry of  six months from the date on which he takes a seat.   Sub-para (1) deals with  a situation where a member of a House belonging to any political party  voluntarily gives up his membership of such political party.   It also deals  with a situation where he votes or abstains from voting  in the House,  contrary to any direction issued by the political party to which he belongs,  without obtaining prior permission of such political party and such voting or  abstention has not been condoned by such political party within fifteen days  from the said voting or abstention.   The scrutiny of the provisions of sub- para (2)  would show that a member of a House belonging to any political  party becomes disqualified for being a member of the House if he does  some positive act which may be either voluntarily giving up his membership  of the political party to which he belongs or voting or abstention from  voting contrary to any direction issued by the political party to which he  belongs and in the case of an independent or nominated member on his  joining a political party.   On the plain language of paragraph 2, the  disqualification comes into force or becomes effective on the happening of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

the event.   Paragraph 4 is in the nature of an exception to paragraph 2 and  provides for certain contingencies when the rule of disqualification will not  apply in the case of merger of political parties.   Paragraph 6 says that where  any question arises as to whether a member of the House has become  subject to disqualification under the Schedule, the same shall be referred for  the decision of the Chairman or, as the case may be, the Speaker of the  House and his decision shall be final.   Therefore, the final authority to take  a decision on the question of disqualification of a member of the House  vests with the Chairman or the Speaker of the House.    It is to be noted that  the Tenth Schedule does not confer any discretion on the Chairman or  Speaker of the House.   Their role is only in the domain of ascertaining the  relevant facts.  Once the facts gathered or placed show that a member of the  House has done any such act which comes within the purview of sub- paragrah (1), (2) or (3) of Paragraph 2 of the Tenth Schedule, the  disqualification will apply and the Chairman or the Speaker of the House  will have to make a decision to that effect.   

8.      Paragraph 6 of Tenth Schedule attaches finality to the decision of the  Chairman or the Speaker of the House on a question as to whether a  member of a House has become subject to disqualification under the  Schedule. Paragraph 7 excludes the jurisdiction of the Court in respect of  any matter connected with disqualification of a member of a House under  the Schedule. as it says that notwithstanding anything in the Constitution, no  Court shall have any jurisdiction in respect of any matter connected with the  disqualification of a member of House under this Schedule.   This provision  being in the Constitution itself, unlike a statutory provision, it effects the  power of judicial review of the High Court and Supreme Court under  Articles 226, 227 and 136 of the Constitution.   Further, in view of the  provision contained in sub-paragraph (2) of paragraph 6 the proceedings in  relation to disqualification of a member of the House shall be deemed to be  proceedings in Parliament within the meaning of Article 122 or in the  Legislature of a State within the meaning of Article 212, as the case may be.    These are identical provisions which provide that validity of any  proceedings in Parliament or Legislature shall not be called in question on  the ground of any alleged irregularity in procedure.  The vires of Tenth  Schedule was challenged on several grounds including the ground that the  power of judicial review being part of the basic structure of the Constitution,  cannot be taken away by a constitutional amendment.   The issue was  considered by a Constitution Bench in Kihoto Hollohan v. Zachillhu & Ors.  1992 (Supp) 2 SCC 651, where Venkatachaliah, J. speaking for the majority  held as under in para 111 of the reports :       

               "In the result, we hold on contentions (E) and (F) :

That the Tenth Schedule does not, in providing for an  additional ground, for disqualification and for adjudication  of  disputed disqualifications, seek to create a non-justiciable  constitutional area.  The power to resolve such disputes vested  in the Speaker or Chairman is a judicial power.

       That Paragraph 6(1) of the Tenth Schedule, to the extent  it seeks to impart finality to the decision of the  Speakers/Chairman is valid.  But the concept of statutory  finality embodied in Paragraph 6(1) does not detract from or  abrogate judicial review under Articles 136, 226 and 227 of the  Constitution insofar as infirmities based on violations of  constitutional mandates, mala fides, non-compliance with  Rules of Natural Justice and perversity, are concerned.  

       That the deeming provision in Paragraph 6(2) of the  Tenth Schedule attracts an immunity analogous to that in  Articles 112(1) and 212(1) of the Constitution as understood  and explained in Keshav Singh case (AIR 1965 SC 745) to  protect the validity of proceedings from mere irregularities of  procedure.  The deeming provision, having regard to the words

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

’be deemed to be proceedings in Parliament’ or ’proceedings in  the legislature of a State’ confines the scope of the fiction  accordingly."

       This authoritative pronouncement clearly lays down that the decision  of the Chairman or the Speaker of the House can be challenged on very  limited grounds, namely, violation of constitutional mandate, mala fides,  non-compliance with rules of natural justice and perversity and further a  mere irregularity in procedure can have no bearing on the decision.  

9.      The question as to when a member of a House belonging to a political  party can be said to have given up his membership of such political party  has been considered in two later decisions of this Court.   In Ravi S. Naik v.  Union of India  1994 (Supp.) 2 SCC 641 two M.L.A.s, Bandekar and  Chopdekar, had been elected on the ticket of MGP party, but they  accompanied the leader of Congress (I) Legislative Party when he met the  Governor to show that he had the support of 20 MLAs.   On this conduct  alone, the Speaker held that they had given up membership of the MGP  party and disqualified them for being a member of the House.   The decision  of the Speaker under which he held that the two MLAs shall be disqualified  for being a member of the House under paragraph 2(1)(a) of the Schedule  was upheld by this Court.   The scope and amplitude of paragraph 2(1)(a)  was explained as under in para 11 of the reports :

"11.    \005\005\005\005The said paragraph provides for  disqualification of a member of a House belonging to a  political party "if  he has voluntarily given up his membership  of such political party".  The words "voluntarily given up his  membership" are not synonymous with "resignation" and have  a wider connotation.  A person may voluntarily give up his  membership of a political party even though he has not  tendered his resignation from the membership of that party.   Even in the absence of a formal resignation from membership  an inference can be drawn from the conduct of a member that  he has voluntarily given up his membership of the political  party to which he belongs".

10.     In G. Viswanathan & Ors. v. Hon’ble Speaker Tamil Nadu  Legislative Assembly & Ors. 1996 (2) SCC 353 the appellants had been  elected as members of the Legislative Assembly in 1991 as candidates of  AIDMK party but they were expelled from the said party on 8th January,  1994.   The Speaker declared them as unattached members of the Assembly  on 16th March, 1994.   Sometime thereafter, an MLA informed the Speaker  that the appellants had joined MDMK party and, therefore, they should be  disqualified from membership of the Assembly.   After calling for their  explanation the Speaker held that they had incurred the disqualification  under paragraph 2(1)(a) of the Tenth Schedule and had ceased to be  members of the Assembly.   The main contention raised on behalf of the  appellants was that paragraph 2(1)(a) of the Tenth Schedule comes into play  only to disqualify a member who voluntarily gives up his membership of  that political party that had set him up as a candidate, and not when he is  expelled from the party and declared "unattached" i.e. not belonging to any  political party.   It was further contended that para 2(a) will apply only when  a member himself of his own volition gives up his membership of the party.    Any member thrown out will cease to be a member of the party that had set  him up as a candidate and if he joins another party thereafter, it will not be a  case of "voluntary giving up his membership of the political party" that had  set him up as a candidate for the election.   It was held that if the contention  urged on behalf of the appellants is accepted, it will defeat the very purpose  for which the Tenth Schedule came to be introduced and would fail to  suppress the mischief, namely, breach of faith of the electorate.   The  principle on which such a view was taken was explained as under in para 11  of the reports :

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

"11.    It appears that since the explanation to para 2(1) of the  Tenth Schedule provides that an elected member of a House  shall be deemed to belong to the political party, if any, by  which he was set up as a candidate for election as such  member, such person so set up as a candidate and elected as a  member, shall continue to belong to that party.  Even if such a  member is thrown out or expelled from the party, for the  purposes of the Tenth Schedule he will not cease to be a  member of the political party that had set him up as a  candidate for the election.  He will continue to belong to that  political party even if he is treated as ’unattached’.  The further  question is when does a person "voluntarily give up" his  membership of such political party, as provided in para  2(1)(a)?  The act of voluntarily giving up the membership of  the political party may be either express or implied.  When a  person who has been thrown out or expelled from the party  which set him up as a candidate and got elected, joins another  (new) party, it will certainly amount to his voluntarily giving  up the membership of the political party which had set him up  as a candidate for election as such member."

11.     In the present case, the Chairman of the Legislative Council has held  that the petitioner had been elected to the Legislative Council on the ticket  of the Indian National Congress but he contested the parliamentary election  as an independent candidate.   On these facts a conclusion has been drawn  that he has given up his membership of Indian National Congress.   This  being a matter of record, the petitioner could not possibly dispute them, and  that is why he has admitted these facts in the writ petition as well.  In such a  situation there can be no escape from the conclusion that the petitioner has  incurred the disqualification under paragraph 2(1)(a) of the Schedule and  the decision of the Chairman is perfectly correct.   

12.     Paragraph 8 gives the rule making powers and it provides that the  Chairman or the Speaker of a House may make rules for giving effect to the  provisions of the Tenth Schedule.   Clause (d) of sub-para (1) of this rule  provides that the Rule may provide the procedure for deciding any question  referred to in sub-para (1) of paragraph 6 including the procedure for any  inquiry which may be made for the purpose of deciding such question.   In  exercise of the power conferred by paragraph 8 of the Tenth Schedule, the  Chairman, Bihar Legislative Council has made the Bihar Legislative  Council Members (Disqualification on ground of Defection) Rules, 1994  (hereinafter referred to as "the Rules").   Rule 3 of the Rules provides that  the leader of each legislature party shall furnish to the Chairman a statement  in writing containing the names of members of such political party.   Sub- rules (1) and (6) of Rule 6 and Sub-rules (1) and (2) of Rule 7 read as under:                   6.      REFERENCES TO BE BY PETITIONS.

(1)     No reference of any question as to whether a member has  become subject to disqualification under the Tenth  Schedule shall be made except by a petition in relation to  such member made in accordance with the provisions of  this rule. (2)     \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005........ ........         \005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005\005 \005\005.

(6)     Every petition shall be signed by the petitioner and  verified in the manner laid down in the Code of Civil  Procedure, 1908 (5 of 1908), for the verification of  pleadings.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

7.      PROCEDURE (1)     On receipt of a petition under rule 6, the Chairman shall  consider whether the petition complies with the  requirements of that rule.

(2)     If the petition does not comply with the requirements of  rule 6, the Chairman shall dismiss the petition and  intimate the petitioner accordingly.

13.     It may be noted that under Paragraph 8, the Chairman or the Speaker  of a House is empowered to make rules for giving effect to the provisions of  the Tenth Schedule.  The rules being delegated legislation are subject to  certain fundamental factors.  Underlying the concept of delegated legislation  is the basic principle that the legislature delegates because it cannot directly  exert its will in every detail.  All it can in practice do is to lay down the  outline.  This means that the intention of the legislature, as indicated in the  outline (that is the enabling Act), must be the prime guide to the meaning of  delegated legislation and the extent of the power to make it.    The true  extent of the power governs the legal meaning of the delegated legislation.   The delegate is not intended to travel wider than the object of the  legislature.  The delegate’s function is to serve and promote that object,  while at all times remaining true to it.  That is the rule of primary intention.   Power delegated by an enactment does not enable the authority by  regulations to extend the scope or general operation of the enactment but is  strictly ancillary.  It will authorise the provision of subsidiary means of  carrying into effect what is enacted in the statute itself and will cover what  is incidental to the execution of its specific provision.  But such a power will  not support attempts to widen the purposes of the Act, to add new and  different means of carrying them out or to depart from or vary its ends.(see  Section 59 in chapter Delegated Legislation in Francis Bennion’s Statutory  Interpretation 3rd Edn.).  The aforesaid principle will apply with greater rigour  where rules have been framed in exercise of power conferred by a  constitutional provision.  No rules can be framed which have the effect of  either enlarging or restricting the content and amplitude of the relevant  constitutional provisions.  Similarly, the rules should be interpreted  consistent with the aforesaid principle.                14.     Shri Mishra has submitted that as provided in sub-rule (6) of Rule 6  of the Rules, the petition filed by Shri Salman Rageev had to be signed and  verified in the manner laid down in the Code of Civil Procedure (for short   ’CPC’) for verification of pleadings and, therefore, in terms of sub-rule (4)  of Order VI Rule 15 CPC an affidavit in support of the petition had to the  filed.  Since the requisite affidavit had not been filed, the requirement of the  Rule had not been complied with, and  the petition was liable to be  dismissed in view of sub-rule (2) of Rule 7 of the Rules.   The Chairman of  the House had, therefore, no authority or jurisdiction to initiate any  proceedings or to hold that the petitioner had become disqualified for being  a member of the House.   The question which requires consideration is  whether the provisions of Rules 6 and 7 are so mandatory in nature that   even a slight infraction of the Rules would render the entire proceedings  initiated by the Chairman invalid, or without jurisdiction.    

15.     It may be noticed that the nature and degree of inquiry required to be  conducted for various contingencies contemplated by paragraph 2 of Tenth  Schedule may be different.   So far as clause (a) of paragraph 2 (1) is  concerned, the inquiry would be a limited one, namely as to whether a  member of the House belonging to any political party has voluntarily given  up his membership of such political party.   The inquiry required for the  purpose of clause (b) of paragraph 2(1) may, at times, be more elaborate.    For attracting clause (b) it is necessary that the member of the House (i)  either votes or abstains from voting (ii) 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; (iii) without obtaining the prior permission of  such political party, person or authority; and (iv) such voting or abstention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

has not been condoned by such political party, person or authority within  fifteen days from the date of such voting or abstention.   Therefore, for the  purpose of clause (b), inquiry into several factual aspects has to be  conducted.   It may be noticed that clause (b) does not say that the prior  permission has to be in writing and, therefore, it can be oral as well.   Similarly, the manner in which condonation has to be expressed has not  been indicated.  Therefore, for holding that a member of a House has  incurred a disqualification under Clause (b) of paragraph 2(1) findings on  several aspects will necessarily have to be recorded.  Similarly, for  application of paragraph 4, inquiry has to be made whether the original  political party merged with another political party, whether the member of  the House has become member of such other political party or, as the case  may be, of a new political party formed by such merger or whether he has  not accepted the merger and opted to function as a separate group.    

16.      Sub-rule (1) of Rule 6 says that no reference of any question as to  whether a member has become subject to disqualification under the Tenth  Schedule shall be made except by a petition in relation to such member  made in accordance with the provisions of the said Rule and sub-rule (6) of  the same Rule provides that every petition shall be signed by the petitioner  and verified in the manner laid down in the Code of Civil Procedure for the  verification of pleadings.   The heading of Rule 7 is ’PROCEDURE".   Sub- rule (1) of this Rule says that on receipt of petition under Rule 6, the  Chairman shall consider whether the petition complies with the requirement  of the said Rule and sub-rule (2) says that if the petition does not comply  with the requirement of Rule 6, the Chairman shall dismiss the petition.   These rules have been framed by the Chairman in exercise of power  conferred by paragraph 8 of Tenth Schedule.  The purpose and object of the  Rules is to facilitate the job of the Chairman in discharging his duties and  responsibilities conferred upon him by paragraph 6, namely, for resolving  any dispute as to whether a member of the House has become subject to  disqualification under the Tenth Schedule.   The Rule being in the domain  of procedure, are intended to facilitate the holding of inquiry and not to  frustrate or obstruct the same by introduction of innumerable technicalities.  Being subordinate legislation, the Rules cannot make any provision which  may have the effect of curtailing the content and scope of the substantive  provision, namely, the Tenth Schedule.   There is no provision in the Tenth  Schedule to the effect that until a petition which is signed and verified in the  manner laid down in the CPC for verification of pleadings is made to the  Chairman or the Speaker of the House, he will not get the jurisdiction to  give a decision as to whether a member of the House has become subject to  disqualification under the Schedule.  Paragraph 6 of the Schedule does not  contemplate moving of a formal petition by any person for assumption of  jurisdiction by the Chairman or the Speaker of the House.   The purpose of  Rules 6 and 7 is only this much that the necessary facts on account of which  a member of the House becomes disqualified for being a member of the  House under paragraph 2, may be brought to the notice of the Chairman.   There is no lis between the person moving the petition and the member of  the House who is alleged to have incurred a disqualification.   It is not an  adversarial kind of litigation where he may be required to lead evidence.    Even if he withdraws the petition it will make no difference as the duty is  cast upon the Chairman or the Speaker to carry out the mandate of the  constitutional provision, viz. the Tenth Schedule.  The object of Rule 6  which requires that every petition shall be signed by the petitioner and  verified in the manner laid down in the CPC for the verification of  pleadings, is that frivolous petitions making false allegations may not be  filed in order to cause harassment.   It is not possible to give strict  interpretation to Rules 6 and 7 otherwise the very object of the Constitution  (Fifty-second Amendment) Act by which Tenth Schedule was added would  be defeated.  A defaulting legislator, who has otherwise incurred the  disqualification under paragraph 2, would be able to get away by taking the  advantage of even a slight or insignificant error in the petition and thereby  asking the Chairman to dismiss the petition under sub-rule (2) of Rule 7.    The validity of the Rules can be sustained only if they are held to be  directory in nature as otherwise, on strict interpretation, they would be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

rendered ultra vires.

17.        The petition filed by Shri Salman Rageev was signed and verified in  the following manner :

"All the facts stated in this petition are true and correct to my  knowledge and belief and no part of it is false.

                                               Sd/- (Salman Rageev)                                                 M.L.C.                                                 10.06.2004"

18.     There cannot be any dispute that sub-rules (1), (2) and (3) of  Order  VI Rule 15 CPC were complied with.   Learned counsel for the petitioner  has, however, laid great emphasis on the fact that Shri Salman Rageev had  not filed any affidavit in support of his petition and consequently the  provisions of sub-rule (4) of Order VI Rule 15 CPC which provides that the  person verifying the pleadings shall also furnish an affidavit in support of  his pleadings were not complied with.    For the reasons stated earlier, we  are of the opinion that the provisions of Rules 6 and 7 are directory in nature  and on account of non-filing of an affidavit as required by sub-rule (4) of  Order VI Rule 15 CPC, the petition would not be rendered invalid nor the  assumption of jurisdiction by the Chairman on its basis would be adversely  effected or rendered bad in any manner.    A similar contention was raised  before a Bench presided by Venkatachaliah, C.J. in Ravi S. Naik v. Union  of India 1994 (Supp.) 2 SCC 641, but was repelled. The relevant portion of  para 18 of the reports is being reproduced below :

"18.    \005\005\005\005The Disqualification Rules have been framed  to regulate the procedure  that is to be followed by the Speaker  for exercising the power conferred on him under sub- paragraph (1) of paragraph 6 of the Tenth Schedule to the  Constitution.  The Disqualification Rules are, therefore,  procedural in nature and any violation of the same would  amount to an irregularity in procedure which is immune from  judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as  construed by this Court in Kihoto Hollohan case 1992 (Supp) 2  SCC 651.  Moreover, the field of judicial review in respect of  the orders passed by the Speaker under sub-paragraph (1) of  paragraph 6 as construed by this Court in Kihoto Hollohan  case is confined to breaches of the constitutional mandates,  mala fides, non-compliance with Rules of Natural Justice and  perversity.  We are unable to uphold the contention of Shri Sen  that the violation of the Disqualification Rules amounts to  violation of constitutional mandates.  By doing so we would be  elevating the rules to the status of the provisions of the  Constitution which is impermissible.  Since the  Disqualification Rules have been framed by the Speaker in  exercise of the power conferred under paragraph 8 of the Tenth  Schedule they have a status subordinate to the Constitution and  cannot be equated with the provisions of the Constitution.   They cannot, therefore, be regarded as constitutional mandates  and any violation of the Disqualification Rules does not afford  a ground for judicial review of the order of the Speaker in view  of the finality clause contained in sub-paragraph (1) of  paragraph 6 of the Tenth Schedule as construed by this Court  in Kihoto Hollohan case."     

19.     Shri Mishra has next submitted that the Chairman of the Bihar  Legislative Council did not afford an opportunity of personal hearing to the  petitioner and he also relied upon certain material, copy of which was not  furnished to the petitioner and consequently the rules of natural justice have  been violated.   We do not find any substance in the contention raised.   

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

Initially, the Secretary of the Bihar Legislative Council sent a letter dated  19th May, 2004 to the petitioner stating that the petitioner had contested the  election for Bihar Legislative Council as a candidate of Indian National  Congress and that information had been received that he had contested the  Parliamentary Election, 2004 as an independent candidate.   Attention of the  petitioner was invited to Article 191 (2) and Tenth Schedule to the  Constitution of India and he was asked to submit his clarification within  seven days.    The petitioner gave a reply to this letter on 25th May, 2004  wherein he requested to supply him a photocopy of the information received  by the Secretariat of Bihar Legislative Council and prayed for 15 days’ time  to explain his position after obtaining advice from legal experts.    Thereafter, Shri Salman Rageev gave a petition to the Chairman on 10th  June, 2004, details of which have already been given earlier.   In pursuance  of this petition, the Secretary of the Bihar Legislative Council sent a letter  dated 12th June, 2004 to the petitioner stating the relevant facts and asking  him to submit his written reply to the Chairman of the Council within one  week.   The copy of the petition submitted by Shri Salman Rageev was  enclosed.   The petitioner gave a reply to this petition on 18th June, 2004,  wherein he only raised objection about the maintainability of the petition  alleging non-compliance of sub-rule (6) of Rule 6 of the Rules and prayed  for its dismissal under sub-rule (2) of Rule 7 of the Rules.   He also prayed  for opportunity of personal hearing on the aforesaid points.   He sent another  letter to the Secretary of the Legislative Council on 19th June, 2004, wherein  he reiterated the same grounds.  A communication was then sent by the  Secretary on 19th June, 2004 informing the petitioner that he should appear  in the office of the Chairman at 1.30 p.m. on 22nd June, 2004 for a personal  hearing.   The petitioner then addressed a letter to the Secretary on 22nd  June, 2004, wherein he again pressed for rejection of the petition under sub- rule (2) of Rule 7 of the Rules and also sought 15 days’ time in order to  obtain advice from legal experts.   A reply was then sent by the Secretary on  22nd June, 2004 informing him that the Chairman had fixed 1.30 p.m. on  25th June, 2004 for personal hearing and he should appear in his office at the  said time.  On 25th June, 2004, the petitioner sent a letter to the Secretary  that he had fallen sick and prayed for 10 days’ further time.   The facts  stated above would show that the Chairman of the Bihar Legislative Council  had afforded ample opportunity of personal hearing to the petitioner but he  himself did not avail of it.   Regarding the complaint of non-supply of the  copy of the letter sent by Prof. Arun Kumar, leader of Indian National  Congress in Bihar Legislative Council, whereby he had informed that the  petitioner Shri Mahachandra Prasad Singh had ceased to be a member of   Indian National Congress for violating the party discipline is concerned, the  only relevant fact stated therein is that the petitioner had been elected as a  member of the Bihar Legislative Council on a Congress ticket but he had  contested the parliamentary election as an independent candidate.   These  facts have never been disputed by the petitioner in his replies, which he  submitted before the Chairman of the Legislative Council and have also  been admitted in paragraphs 5 and 7 in the present writ petition.   Therefore,  the non-supply of copy of the letter of the leader of the Congress Legislative  Party has no bearing at all as no prejudice can be said to have been caused  to the petitioner and consequently in the facts of the present case, no  principle of natural justice can be said to have been violated.  

20.     The third submission of Shri Mishra has hardly any substance.   In  view of explanation (a) appended to sub-paragraph (1) of paragraph 2 of the  Tenth Schedule, the petitioner shall be deemed to belong to Indian National  Congress Party by which he was set up as a candidate for contesting the  election for member of Legislative Council in the year 1998.   By contesting  the parliamentary election as an independent candidate, he voluntarily gave  up the membership of the Congress Party.   In G. Viswanathan & Ors. v.  Hon’ble Speaker Tamil Nadu Legislative Assembly & Ors. (supra), the  Bench quoted with approval the observations made in Ravi S. Naik v. Union  of India (supra) in para 11 of the reports that even in the absence of a formal  resignation from membership, an inference can be drawn from the conduct  of a member that he has voluntarily given up his membership of the political  party to which be belongs.   On the facts of the present case, it cannot be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

said that the finding arrived at by the Chairman of the Legislative Council   that the petitioner gave up the membership of the Indian National Congress  Party to which he belonged is one which could not reasonably and possibly  have been arrived at.

21.     For the reasons discussed above, there is no merit in the writ petition  and the same is hereby dismissed with costs.

CIVIL WRIT PETITION NO.370 OF 2004

Shiva Nandan Prasad Singh                                    ..      Petitioner -vs-  Hon. Chairman, Bihar Legislative Council & Ors.       ... Respondents          

1.      The petitioner was elected as member of Bihar Legislative Council as  a candidate of Indian National Congress Party in 1998.   He filed his  nomination papers for contesting the parliamentary election held in May,  2004 as a candidate of Samajwadi party.   The Secretary of the Legislative  Council sent a letter dated 19th May, 2004 asking the petitioner to clarify his  position.  On 12th June, 2004, another letter was sent to him asking him to  submit his explanation on the basis of a petition filed by Shri Salman  Rageev on 10th June, 2004.  The letter was accompanied by the copy of the  petition.  The petitioner gave a reply on 18th June, 2004 raising objection  regarding non-compliance of Rules 6 and 7(2) of the Rules.  The Chairman  fixed 22nd June, 2004 for personal hearing, on which date the petitioner  appeared and made request for some more time, on which 25th June, 2004  was fixed.  Thereafter, the Chairman passed the impugned order dated 26th  June, 2004 holding that the petitioner is disqualified for being a member of  the House under paragraph 2(1)(a) of the Tenth Schedule and Article 191(2)  of the Constitution and the seat held by him in the Council had become  vacant.

2.      No new point has been urged by Shri P.S. Mishra in the present case.    It is admitted in paras 4 and 6 of the writ petition that the petitioner had  been elected as member of the Legislative Council in the year 1998 as a  candidate of the Indian National Congress party and that he filed his  nomination papers for contesting the parliamentary election held in May  2004 as a candidate of Samajwadi Party.   This factual position was not  disputed by the petitioner in the replies given by him to the Chairman of the  House.  In such circumstances, there cannot be even a slightest doubt that  the petitioner has voluntarily given up his membership of the Indian  National Congress party.   No exception can, therefore, be taken to the  decision taken by the Chairman of the House that the petitioner has incurred  the disqualification for being a member of the House under paragraph  2(1)(a) of the Tenth Schedule and Article 191(2) of the Constitution and the  seat held by him had fallen vacant.

3.      The writ petition lacks merit and is dismissed with costs.