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PETITIONER: MAYAWATI

       Vs.

RESPONDENT: MARKANDEYA CHAND & ORS.

DATE OF JUDGMENT:       09/10/1998

BENCH: HON’BLE THE CHIEF JUSTICE,HON’BLE MR.  JUSTICE K.T.  THOMAS, ANDHON’BLE MR JUSTICE M.  SRINI VASAN.

ACT:

HEADNOTE:

JUDGMENT: JUDGMENTS The following Judgments of the Court were delivered: PUNCHHI, CJI: ------------ I  have  bestowed  great  care  in  reading  the  two elaborate but sharply cleaving draft Judgments prepared by my learned brethren, K.T.   Thomas,  J.   and M.  Srinivasan, J. resting on the provisions contained in the Tenth Schedule  of the Constitution.    I need to emphasis at the outset, in the context above, the importance of recording  of  events  which take  place  in  the  House,  which  means  either  House  of Parliament or the Legislative Assembly or, as  the  case  may be,  either House of the Legislature of State, because Clause (b) of Paragraph 3 provides that from the time of such split, such faction shall deemingly become  the  political  party... The  Speaker/Chairman in the nature of his role when informed of a spilt is administratively the time keeper and he has  to be definite  in  respect  of  the  time of such split.  Or is there any scope for procrastination?    He  is  the  Tribunal undoubtedly for quasi-judicial purpose. In Kihoto Hollohan V.  Zacnillnu & Others, 1992 Supp. (2) SCC, the majority, in Paragraph 109, has  summed  up  the nature  of  the  function  exercised  by the Speaker/Chairman under Paragraph 6(1) to be that of a Tribunal and  the  scope of  judicial  review  under  Articles 136, 226 and 227 of the Constitution  in  respect  of  an   order   passed   by   the Speaker/Chairman   under  Paragraph  6  to  be  confining  to jurisdictional  errors  only  vix.,  infirmities   based   on violation    of    constitutional    mandate,   mala   fides, non-compliance with rules of natural justice and  perversity. The  question however as to whether a Member of the house has become subject to disqualification must  arise  for  decision under  Paragraph 6(1) of the Tenth Schedule only on its being referred for decision of the Speaker/Chairman and not on  his own, whose  decision  shall  be  final.   The defence against disqualification  incurred  on  ground  of  defection   under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is not to apply to a case of split.  Is not  the  cognition of the Speaker/Chairman of the occurrence

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of split  not  administrative  in  nature,  unconnected  with decision making on disqualification is it an adjunct thereto? Kihoto Hollohan  is  silent  on  this  aspect.  If the act of cognoscing the time  of  such  split  is  the  administrative function  of  the  Speaker/Chairman,  the  scope  of judicial review of the said administrative act would, to my  mind,  be qualitatively  different  than  what  it  is when testing his quasi-judicial order as a Tribunal.  Kihoto Hollohan,  as  is evident from Paragraph 111 the report, apparently confines to decision  making by the Speaker/Chairman in Paragraph 6(1) on reference of the question of disqualification,  inviting  his decision,  and  leaves  his role under Paragraph 3 untouched. These determinations of importance, in my view, are necessary to be made before the  matter  can  be  examined  as  to  the perversity or otherwise of the Speaker’s decision, obligating him at a point of time to record categorically when the split took place  thereby  pinning the time of such split.  I opine therefore that the matter be  referred  to  the  Constitution Bench for decision. SRINIVASAN J. ------------ Leave granted. I  have  had  the  advantage  of  perusing  the draft judgment prepared by learned brother Thomas, J.  I am  unable to agree  with  the  same.    My  judgment in this case is as follows: A.  PRELUDE 1.Though  the  Anti-defection law contained in Articles 101,102,  190  and  191  and  the  10th   schedule   of   the constitution  was  born after a very long period of gestation (from 1967 to 1985), it has not had the desired effect.   The need  for  scrapping  it  and  ushering in a new law has been realized.  It is hoped that  before  a  new  law  is  enacted regard  will  be  had  to  the  following passage in Chawla’s Election Law and Practice (6th Edn.) p.1.589 :         "Looked at from a more fundamental angle, inasmuch as         the point of reference for every case of defection is         a  political  party, no reforms in the Anti Defecting         Law would be meaningful without a  deep  analysis  of         the   conception,  structure,  functioning  and  role         perception of political parties in our polity.         Parties  as  they  exist  and  operate  today         hardly  deserve  any  protection against defection by         their members.  If  parties  are  not  based  on  any         principles,  ideologies or programmes and if they are         not democratically run, there can be no  question  of         any  principles being involved in either defecting or         staying with a party. 2.The events in the Legislative Assembly of  the  State of  Uttar Pradesh after the general elections in 1996 justify the above view.  While expressing  my  concurrence  with  the above  view, I wish to point out with great dismay that those days of  statesmen  who  rendered  selfless  service  to  the country are gone and alas!  these are days of politicians who want the  country to serve them.  But the issues in this case have to be resolved by constitutional  measurement,  free  of any predilection. B. Chronology. 3.In the general elections to  the  U.P.    Legislative Assembly which took place in 1996 no political party obtained absolute majority.    There  was  an  agreement  between  the Bhartiya Janata Party (’BJP’ for short) and the Bahujan Samaj Party ("BJP’ for short) to support each other for running the Government.  The BSP had 67 MLAs  who  were  elected  on  its fold.   Pursuant  to the agreement the appellant belonging to

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BSP became the Chief Minister of  the  State  on  21.3.97  On 21.9.97  Kalyan  Singh  belonging to the BJP became the Chief Minister.  On 19.10.97 the appellant announced withdrawal  of participation and support of BSP to the coalition government. All   the   BSP   Ministers  resigned  from  the  Government. Immediately the Governor of  the  State  convened  a  special Session of  Assembly  at  11.00  A.M.    on 21.10.97 and told Kalyan Singh to prove his majority on the Floor of the House. On 20.10.97 the appellant issued a  whip  directing  all  BSP MLAs   to   remain   present  in  the  House  throughout  the proceedings on the next day and vote against  the  Motion  of Confidence to be moved by the Chief Minister. 4.      On 21.10.97 there was pandemonium and violence in the Assembly and several MLAs went  out  of  the  House.  In  the proceedings which followed, 222 Members of the Assembly voted in  favour  of the Government. There was no vote opposing the Motion. 5.In the  speeches  which  followed,  Mr.  Sardar Singh congratulated the speaker for being able to preside over  the Assembly without  getting  hurt.    He  narrated  as  to  how instructions were given by the appellant to  the  members  of BSP  to  indulge  in  violence  and cause confusion including causing hurt to the Speaker.  Markandeya Chand another member told the Speaker that along with him 23 others had  quit  the BSP  and  supported  the  Government. Respondents 1 to 12 had voted in support of the Motion. 6.On 24.10.97, 13 petitions were filed by respondents 1 to  12 as well as one Hari Krishan on the ground of violation of whip issued by her on 20.10.97.    The  petitions  invoked only   clause   2(1)(b)   of   the   Tenth  Schedule  to  the Constitution.   On  27.10.97  respondents  1  to  12   became Ministers and joined the Cabinet.  On 11.11.97 another set of 13  petitions  similar  to  those filed by the appellant were filed by one Mr.  R.K.  Chowdhary claiming the same relief on the same ground.  After removal of defects by amendments, the petitions were taken on file and  notice  was  ordered.    In these  proceedings  we  are  not  concerned with the petition against Hari Krishan which was later dismissed as  withdrawn. On  25.11.97  respondents  1 to 12 filed written statement in which is was inter alia  pleaded  that  a  split  took  place between  the  Members  of  the  BSP on 21.10.97 and more than 1/3rd Legislators of the BSP got separated.  It  was  averred that   the  appellant  had  instructed  the  members  of  her Legislature Party to disturb the proceedings of the  Assembly and cause  hurt  to  the  Speaker.  On the very next day i.e. 26.11.97 the  appellant  filed  a  replication  statement  in answer to  the  written  statement of the respondents.  there was no denial whatever  of  the  split  referred  to  in  the written statement.     The  only  plea  in  that  replication pertained  to  the  whip   issued   on   20.10.97   and   the non-withdrawal of the same by the appellant on 21.10.97. 7.   On  5.12.97  the  appellant  filed  an  application  for amendment  of  the  petition in which disqualification of the respondents was sought under  clause  2(1)(a)  or  the  Tenth Schedule.  The relevant part of the pleading was as follows:         "That it is clear from the perusal of  the  reply  of         the  respondent  filed  on  this petition on 25.11.97         that the respondent  has  voluntarily  given  up  the         membership of  Bahujan  Samaj  Vidhan  Dal.  That the         respondent had contested and  won  the  elections  of         Vidhan  Sabha on the ticket of BSP and in this manner         he is disqualified from the membership of the  Vidhan         Sabha. There  was  also  a  denial of the correctness of the Statement made by  Markandeya  Chand  on  the  Floor  of  the

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Assembly   on  21.10.97  that  23  Legislators  of  BSP  were supporting him. 8.  Inspect of opposition by the  respondents  the  amendment was allowed by the Speaker.  That order was challenged by the respondents in W.P.  No.  348 of 1998 on the file of the High Court of  Allahabad,  Lucknow  Bench.   That writ petition is said to be pending after notice.   Thereafter  an  additional written   statement  was  filed  by  Vansh  Narain  Singh  on 2.2.1998.  These was a narration of  the  split  in  BSP  and formation  of  new  group named as Jantantrik BSP (’JBSP’ for short).  The reasons for such a split were set out in detail. It was further stated that the members of JBSP were not  less than 1/3rd  of  the  total  number  of BSP MLAs.  It was also averred that the appellant and a few other members of the BSP started terrorizing and threatening the members of  the  JBSP with attack on their lives and also prevented their coming to and going  from  Lucknow.   There was also an allegation that signatures of some of those persons who had become members of JBSP were taken on blank papers by coercion.   The  appellant did not file any reply statement. 9.On 24.2.98  the  hearing  of  the matter started.  It continued on 25.2.98.   During  the  course  of  the  hearing respondents 1 to 12 filed two affidavits containing a list of 26 names  who  formed  part  of  the  group  on 21.10.97.  An explanation was given in the affidavits as to why  there  was delay in  furnishing  the  names  of those MLAs.  Some of the members mentioned in the list were present before the Speaker along with  the  respondents.    the  appellant  filed   nine affidavits on  the  same  day  around  7.40 P.M.  The hearing concluded on 25.2.98 and order were reserved. 10.Thereafter  on  4.3.98  and  10.3.98  the respondents filed another set of affidavits  repeating  almost  the  case already put forward.   On 16.3.98 R.K.  Chaudhary applied for certified copies  of  those  affidavits.    When   the   said certified  copies  were  furnished he was informed that if he had any submissions to be made in regard to those  affidavits he could present the same on 19.3.98 at 1.00 P.M.  No further affidavits were filed by the appellant or R K Chaudhary.  The speaker  pronounced  the  judgment  on 23.3.98 dismissing the petitions for disqualification.  He  recognized  19  MLAs  as forming a separate political party by the name JBSP. 11.It   is   that  judgment  of  the  Speaker  which  is challenged in this appeal.   Originally  S.L.P.    was  filed against respondents  1  to  12  only.    When the matter came before Court in 10.8.98, on the request  of  the  appellant’s counsel  the  Speaker  was added as a party (13th respondent) and the matter was adjourned to 25.8.98.  On the latter  date the following order was passed:         "Mr.   Sibal,  learned   senior   counsel   for   the         petitioner  states that the Speaker was got impleaded         as a party because of  the  first  respondent  having         raised  an  objection in his counter that the Speaker         should have been made a party.  Mr.    Sibal  further         states  that  the  Speaker,  otherwise, is a proforma         party and he need not file a counter." The matter was directed to be listed for  final  disposal  on 8.9.98  and  liberty was given to the counsel for respondents to file additional affidavits  if  necessary.  The  case  was heard on 8th to 10th, the afternoon of 11th and the afternoon of 14th.  C. FINDINGS OF THE SPEAKER 12.(i) The direction/whip dated 20.10.97 by the appellant was not issued in accordance with paragraph  2  (1)  of  the  Xth Schedule   of   the   Constitution   and   as   such  it  was unconstitutional and illegal with the result the  respondents

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are  not  liable  to be disqualified under that paragraph for voting contrary to it. (ii) The petitions filed by the appellant did not fulfill the requirements of ’The Members  of  Uttar  Pradesh  Legislative Assembly  (Disqualification  on  grounds of Defection) Rules, 1987’ (hereinafter referred to as the Rules) in  as  much  as they  did  not  contain  a  statement  of  material facts and consequently the petitions where liable to be dismissed under Rule 8 (ii) of the said rule. (iii)  The  appellant  had  in  fact  issued  a  direction on 21.10.97 to the B.S.P.  M.L.As for creating disturbances  and committing  violence  in the House on that date and therefore the  direction  issued  by  her  earlier  on   20.10.97   was superseded/withdrawn/waived  and  made  ineffective. As such, the respondents could not be disqualified  for  having  voted contrary to the direction dated 20.10.97. (iv) there was a split in the B.S.P.  on 21.10.97 as a result of which there arose a faction and  26  M.L.As  mentioned  in annexures  1  and  2  of Chowdhary Narender Singh’s affidavit dated 24.2.98 who were more than 1/3rd  members  of  the  BSP Legislature  Party  constituted a group representing the said faction.  Constituted a group became the ’original  political party’ known  as  JBSP.   The members of the said group where entitled to protection of para 3 of the Xth Schedule  of  the Constitution.   Further,  after  the  split  of  the  BSP and formation of the group of 26 MLAs on 20.10.97,  there  was  a further  split in the JBSP on 15.1.98 as a result of which 19 MLAs continued to remain members of JBSP Legislature Party. (v)     As  a  result of the aforesaid findings the petitions filed  by  the  appellant  and   the   petitions   filed   by R.K.Chaudhary  were  dismissed. The 19 persons set out in the order were dismissed. The 19 persons set  out  in  the  order were declared as members of JBSP in the Assembly. 13.   Mr Kapil Sibal who appeared for the appellant submitted that the order of the  Speaker  suffers  from  jurisdictional errors  based  on  violation  of the constitutional mandates, non-compliance with rules of Natural Justice and  perversity. He  stated  expressly  that he was not attacking the order on grounds of bias or mala fides though they were raised in  the S.L.P. 14.Dr.  L.M.  Singhvi argued  on  behalf  of  the  first respondent while  Mr.   Ashok Desai represented respondents 2 and 3.  Mr.  R.K.  Jain argued for respondents 4,5 and 6  and Mr.   K.N.  Balgopal  represented  the  7th  respondent.  The substance  of  the  contentions  urged  on  behalf   of   the respondents is as follows: The  order  of  the  Speaker  is  a  well structured one. The findings of facts rendered by him are based on  the  evidence on record. The order does not suffer from any perversity. Nor is  it  vitiated  by  violation of Constitutional mandates or principles of Natural Justice.  Even  if  the  order  is  set aside,  the  matter has to go back to the Speaker for a fresh decision in accordance with the judgment of this Court. E.  ARTICLE 145(3) OF THE CONSTITUTION 15.  In the midst of his arguments Dr.  Singhvi  invited  our attention  to Article 145(3) of the Constitution of India and submitted that  as  the  case  involves  several  substantial questions of law as to the interpretation of the Constitution it should  be  heard  by minimum number of five Judges.  When the said submission was  made,  arguments  had  already  been heard for  two  days.  The Hon’ble the Chief Justice observed that there is an ’Interpretation Clause’ in the Xth  Schedule and  every  question  of law is not a substantial question of law.  Dr.   Singhvi  did  not  persist  the  matter  further. However Mr.    Ashok  Desai who argued on the last day of the

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hearing handed over a paper setting out proposed  substantial questions   of   law/questions   as   to   interpretation  of Constitution.  He has mentioned 9 questions therein.   In  my view  question  numbers 4 and 9 therein fall within the ambit of Article 145(3).  They read as follows:         "4.   The manner, authority, and  other  requirements         of  a  valid whip for disqualification under Clause 2         (1) (b) of the Xth Schedule, especially  the  meaning         of  expressions  "political party’ and of ’any person         or authority authorised".               "9.    Whether order  of  speaker  refusing  to         disqualify   members   of  house  be  substituted  by         disqualification in course or judicial review". F. DISCUSSION ------------- 16.   The contentions of  the  appellant’s  counsel  can  be classified   under   three   main  heads  (i)  violation  of constitutional Mandates  (ii)  violation  of  principles  of Natural Justice; (iii)  Perversity.     (i)  Violation of Constitutional Mandates.          This can be sub divided into two: (a) violation of para 2 (1) (b); (b)  violation  of para 2 (1) (a) of the Xth Schedule of the Constitution. A common defence to grounds under both sub paras (a) &  (b), is  available  in  para  3. If the situation contemplated in para 3 is proved, neither para (a) nor para  (b)  will  help the appellant. Para 2(1) is in the following terms:         "2.    Disqualification  on ground of defection - (1)         Subject to the provisions of paragraphs 3,4 and 5,  a         member  of  a  House belonging to any political party         shall be disqualified  for  being  a  member  of  the         House, -         (a)    if  he has voluntarily given up his membership         of such political party; or         (b) If he votes or abstains from voting in such House         contrary  to  any  direction  issued by the political         party to  which  he  belongs  or  by  any  person  or         authority  authorized  by  it in this behalf, without         obtaining, in either case, the  prior  permission  of         such  political  party,  person or abstention has not         been condoned by  such  political  party,  person  or         authority  within  fifteen days from the date of such         voting or abstention.         Explanation - For the purposes of this sub-paragraph,         (a)  an elected member of a House shall be deemed  to         belong  to  the  political party, if any, by which he         was set up  as  a  candidate  for  election  as  such         member;         (b)   a nominated member of a House shall, -               (i)   Where  he  is  a  member of any political         party on the date of his nomination as  such  member,         be deemed to belong to such political party;         (ii)  in  any  other case, be deemed to belong to the         political party of which he becomes, or, as the  case         may  be,  first becomes a member before the expiry of         six months from the date on which he takes  his  seat         after  complying  with the requirements of article 99         or, as the case may be, article 188".         Para 3 reads as follows:-         3. Disqualification on ground  of  defection  not  to         apply in 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 the split in

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       his original political 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 -         (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 authorised 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."                (a)  Violation of para 2 (1) (b) 17.   Apart  from  the  defence  under  para 3, an additional defence relating to para 2 (1) (b) has been  raised  in  this case.   That  has  been  accepted by the Speaker and findings have been rendered accordingly.   Though  it  is  a  question involving  interpretation  of a provision in the constitution and requires to be decided  by  a  Bench  of  at  least  five Judges, I am bound to express my opinion here as the case has been heard  fully  by  this  Bench.   Both parties argued the question  at  length  before  the  Speaker  and  invited  his findings.   Before us also, the appellant’s counsel argued it at length and the respondents’ counsel replied.  Hence it  is necessary to express an opinion. 18.   The  argument  of  the appellant is that the expression ’political party’ in sub-para (b) means ’political  party  in the House’,  in  other  words, the ’Legislature Party’.  This argument runs counter to the  definition  contained  in  para 1(c).   According  to  that  definition,  ’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.  The  expression  ’original political party’ is used in para 3 only.  Para 2, does not at all use the expression ’original political party’ .  The said expression  in para 3 is equated to the expression ’political party’ in para 2(1).  The definition clause  in  para  1  (c) does  not  make  any distinction between sub para (a) and sub para (b) of para 2.  But the  appellant’s  counsel  wants  to make such  a distinction.  According to him ’political party’ in sub para (a) would refer to ’original political party’ but the same expression in sub para (b) would refer only  to  the ’Legislature Party’.    The  term  ’Legislature Party’ having been defined in para 1(b) could well have been used in para 2 (1)  (b)  instead  of  the  term  ’political  party’  if  the intention  of  the  Parliament  was  to  refer  only  to  the Legislature Party. 19.  There is another feature in Para 3 (b)  which  negatives the appellant’s  argument.   According to para 3(b), from the time of split in the original political party such as the one referred to in the  first  part  of  the  para,  the  faction referred to therein shall be deemed to be the political party to  which  the  concerned  member belongs for the purposes of sub-para (1) of para 2 and to be his original political party for the purposes of paragraph 3.   The  entire  sub-paragraph (1)  of  para  2  is referred to therein meaning thereby both clauses (a) and (b) of the sub-para 1 and no  distinction  is

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made between  the  two  clauses.    Hence for the purposes of clause ’a’ as well as clause ’b’ the faction referred  to  in the  first  part of para 3 shall be deemed to be the original ’political party’ mentioned in para 3.  It is thus clear that ’political party’ in clause (b) of sub-para (1) of para 2  is none  other than ’original political party’ mentioned in para 3. 20.  The argument that the context in para 2 (1) (b) requires to equate ’political party’  with  ’legislature  party’  even though   the  definition  clause  reads  differently  is  not acceptable.  A reading of sub para  (b)  the  Explanation  in para 2 (1) places the matter beyond doubt that the ’political party’  in  sub  para  (b)  refers to the ’original political party’ only and not to the Legislature Party.   According  to the  explanation,  for the purpose of the entire sub para, an elected member of the 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.    Certainly,  the Legislature  Party could not have set up the concerned member as a candidate for election. 21.According to learned counsel for the  appellant,  the Legislature Party may have to take decisions on urgent matter in  the  House  and  as  it represents the original political party in the House,  whatever  direction  is  issued  by  the Leader  of  such  Legislature  Party  must  be  regarded as a direction issued by the political party.  There is  no  merit in this  contention.   When the provision in the constitution has taken care to make a distinction between the  Legislature Party and the original Political party and prescribe that the direction  should  be one issued by the political party or by any person or authority authorised in this behalf,  there  is no  meaning  in  saying  that  whatever  the  Leader  of  the Legislature Party directs must be regarded  as  that  of  the original political party. 22.     The  reason is not far to seek. Disqualification of a member elected by the people is a  very  serious  action  and before  that  extreme step is taken, it should be proved that he acted contrary to the direction issued by the party  which set him up as a candidate for election. 23.  In ’Hollohan’ 1992 Supp (2) 651, the majority dealt with the expression ’any direction’ in Para 2(1) (b) and held that the objects and purposes of the Xth Schedule define and limit the contours  of  the  meaning of the said expression.  It is advantageous to extract para 122 of the judgment which  reads as follows:-         "While  construing  Paragraph  2(1)  (b) it cannot be         ignored  that  under  the  Constitution  Members   of         Parliament  as well as of the State legislature enjoy         freedom of speech in the House though this freedom is         subject to the provisions of the constitution and the         rules and standing orders regulating the Procedure of         the House [Article 105 (1) and Article 194 (1)].  The         disqualification imposed by paragraph 2(1)(b) must be         so construed as not to unduly  impinge  on  the  said         freedom of  speech  of  a  Member.    This  would  be         possible if Paragraph  2(1)(b)  is  confined  in  its         scope  by  keeping  in view the object underlying the         amendments contained in the Tenth  Schedule,  namely,         to  curb the evil or mischief of political defections         motivated by the lure  of  office  or  other  similar         considerations.  The said object would be achieved if         the disqualification incurred on the ground of voting         or  abstaining from voting by a member is confined to         cases where a change of government is  likely  to  be         brought about or is prevented, as the case may be, as

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       a  result  of  such voting or abstinence or when such         voting or abstinence is on a matter which was a major         policy and programme on which the political party  to         which the Member belongs went to the polls.  For this         purpose the direction given by the political party to         a  Member belonging to it, the violation of which may         ential  disqualification  under  Paragraph   2(1)(b),         would  have  to  be  limited  to  a vote on motion of         confidence or no  confidence  in  the  government  or         where  the  motion  under  consideration relates to a         matter which was an integral policy and programme  of         the   political  party  on  the  basis  of  which  it         approached the electorate.  The voting or  abstinence         from  voting by a Member against the direction by the         political party on such  a  motion  would  amount  to         disapproval of the programme on the basis of which he         went  before  the  electorate and got himself elected         and such voting  or  abstinence  would  amount  to  a         breach   of   the   trust   reposed  in  him  by  the         electorate". 24.   If  the direction referred to in para 2 (1)(b) is to be restricted to the two kinds referred to in the said  passage, there  is  no  doubt  that  ’political party’ in para 2(1)(b) refers only to the ’original political party’ as it  is  only such party  which  could  issue  such  direction.    In  such matters, the members of the House would  certainly  be  given sufficient  notice  in  advance  and original political party would have  sufficient  time  to  take  decisions  and  issue directions. 25.  In ’The Journal of  Parliamentary  Information’.    1993 (Vol.39).  Article  19.    Anti  -  Defection  Law - Split In parties by D. Sripada Rao @ p.p. 104 and 105, it is stated as follows:-             "It is not as though the schedule does  not  take         into  its  fold  the outside events and organisation.         The Schedule mentions the direction of the  political         parties.  etc.  in Clause (b) of sub-para (1) or para         2. The direction of a member of the House can be from         a functionary of a political party outside the  House         according  to  the  constitution  of  the  respective         parties.  The  label  which  a  member  carries   and         ultimately  goes  to constitute his Legislature Party         under rule 4(2) is an agency outside the House.         A member is disqualified for giving up that label and         not the  membership  of  the  Legislature Party.  The         operation  of  the  Schedule   is   not   exclusively         intramural  or  confined  to  the  four  walls of the         House, where  the  Speaker’s  writ  runs.    If   the         intention  of the Parliament in enacting the schedule         is to confine the Speaker merely to count the members         of the Legislature Party there is no need to  mention         ’the  original  political  party’ in paras 3 and 4 in         connection  with  split  or  merger.  A  party  split         outside  the  House  without  the  support  of  1/3rd         members inside the House renders it to wipe  out  its         identity  in  the House and the House and the Members         who engineer a split  in  Legislature  Party  without         there  being  a  corresponding  split  in  the  party         outside make themselves vulnerable  to  forego  their         seat  in  the  House  albeit their command over 1/3rd         legislature party". The above passage shows that no  distinction  can  be made  between  sub  para  (a)  and sub para (b) vis a vis the meaning of the term ’political party’ and that it means  only the original political party.

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26.  It has been rightly held by the Speaker that there is no material  whatever  to  hold  that  the  direction  issued on 20.10.97 was issued by the B.S.P.  or that the appellant  was authorized by  the  BSP  to  issue such a direction.  Neither before the speaker non before  us  any  such  plea  was  even raised. 27.    There is also no difficulty in accepting  the  finding of  the  Speaker that the direction dated 20.10.97 was not in accordance with the law laid down by this court in ’Hollohna’ - In para 123, it is said:            "Keeping  in  view  the   consequences   of   the         disqualification i.e., termination of the membership         of  a  House;  it  would  be  appropriate  that  the         direction   or   whip   which   results   in    such         disqualification   under  Paragraph  2(1)(b)  is  so         worded  as  to  clearly  indicate  that  voting   or         abstaining   from   voting   contrary  to  the  said         direction   would   result    in    incurring    the         disqualification  under  Paragraph  2(1)(b)  of  the         Tenth Schedule so  that  the  member  concerned  has         fore-knowledge  of the consequences flowing from his         conduct in voting or abstaining from voting contrary         to such a direction". Mr.   Sibal’s contention that such a warning as mentioned in the above passage is necessary only when whips are issued on unimportant matters and that the above passage in ’Hollohan’ is misunderstood by the Speaker is unsustainable.  A reading of paras 122 and 123 in ’Hollohan’  clearly  shows  that  no meaning  can  be  given to para 123 other than that given by the Speaker. 28.      Hence I hold that the Speaker has not violated para 2(1)(b) of the Tenth Schedule. (b)  Violation of Para 2(1)(a)      ------------------------- 29.  The attack of the appellant on the factual findings  of the  Speaker  could  be  more conveniently and appropriately considered when I discuss violation of principles of Natural Justice and perversity.  Under this head,  I  would  discuss the question of law raised by Mr.  Sibal. 30.      The meaning to be given to the work ’split’ in Para 3 is left open in ’Hollohan’. In Para 124, it is said:         "There are some submissions as to the exact import of         a  "split"  -  whether  it  is  to  be  understood an         instantaneous, one time event or  whether  a  ’split’         can be  said  to  occur  over  a period of time.  The         hypothetical poser  was  that  if  one-third  of  the         members of a political party in the legislature broke         away  from  it  on  a  particular  day and a few more         members joined the splinter group a  couple  of  days         later, would the latter also be a part of the ’split’         group.  This  question  of  construction issues.  The         meaning to be given to "split"  must  necessarily  be         examined  in  a  case in which the question arises in         the context of its particular facts.  No hypothetical         predications can or need be made.   We,  accordingly,         leave  this  question to be decided in an appropriate         case". 31.   Issue No. 6 framed by the Speaker is as follows:-            "Whether on 21.10.97 a group was formed in Bahujan         Samaj  Party  Legislature  Party under paragraph 3 of         Tenth Schedule of the constitution  representing  the         group  which  had  arisen  as  a  result  of split in         Bahujan Samaj Party and whether there were  at  least         one-third  members of Bahujan Samaj Party Legislature         Party in such group? If yes, its effect.

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There is no dispute before us as to the  correctness  of  the issue as framed. There is also no difference of opinion among the two sides as to the meaning of para 3. 32.   The only question of law raised by Mr. Sibal relates to the maintainability of  the  plea  of  split  in  default  of compliance with Rule 3 of the Rules. According to the learned counsel,  the  Rules,  having  been framed in exercise of the powers conferred by para 8 of the Tenth Schedule  for  giving effect to the provisions of the schedule, have the same force as  constitutional  mandates and non-compliance thereof would disentitle the concerned party from invoking  the  provisions of the constitution. Rule 3(1) of the Rules reads thus:         "3.  (i) The leader of each legislature party,  other         than  a  legislature  party  consisting  of  only one         member shall within thirty days from the date of  the         first   sitting   of   the   House,  or,  where  such         legislature party is formed after such  date,  within         thirty  days  from  the date of its formation, and in         either case within such further period as the Speaker         may for sufficient cause allow, furnish the following         to the Speaker, namely:-         (a) a statement in writing in Form I  containing  the         names  of  members  and  other  particulars  of  such         legislature party:         (b) names and designations of each such member of the         legislature  party  who  has been chosen as leader of         that party or authorized for the purposes referred to         in clause (f) of rule 2, to act as, or  to  discharge         the functions of, such leader;            (c)  names and designations of such members of the         legislature  party  who  have been authorised for the         purposes  of  these  rules  to  correspond  with  the         Speaker;         (d) a copy of the constitution and rules (by whatever         name  called)  of  such  legislature party and of the         political party to which its members are affiliated". 33.   Learned counsel submits that in the present case though the split was  alleged  to  have  taken  place  on  21.10.97. Markandeya  Chand,  the  leader of JBSP did not within thirty days from the said date or for that matter till 25.2.98,  the day  on which the arguments before the Speaker were concluded furnish the statement etc. as set out  in  thee  Rule.  Hence according  to  him the respondents were not entitled to raise the plea of split in this case. 34.  According to him the decision of this Court in  Ravi  S. Naik Versus  Union  of  India and Another etc.  1994 Supp (2) S.C.C.  641 is not correct and it  requires  reconsideration. It is therefore argued that thee order of the Speaker placing reliance  on  the said ruling is erroneous and has to be seat aside. 35.  Before  referring  to  Ravi  S.    Naik  (supra) I would consider the question on first principles.   Para  3  of  the Tenth  Schedule  excludes  the operation of para 2 (1)(a) and (b) where a member of a House makes a claim that he  and  any other  member  of  his legislature party constitute the group representing a faction which has arisen  as  a  result  of  a split in his original political party and such group consists of not less than one third of the members of such legislature party.   The  following are the conditions for satisfying the requirements of the para:     (i)   A split in the original political party giving rise to a faction.     (ii)  The faction is represented by a group  of  MLAs  in the House. (iii) Such group consists not less  than  one  third  of  the

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members of  legislature  party to which they belong.  For the purpose of  that  para  all  the  three  conditions  must  be fulfilled.   It  is not sufficient if more than 1/3rd members of a legislature party form a  separate  group  and  give  to itself  a  different  name without there being a split in the original political party.  Thus the factum of  split  in  the original  party  and  the  number  of  members in the ’group’ exceeding 1/3rd of the members of the legislature  party  are the conditions to be proved. 36.   Rule  3  provides  for furnishing of information to the speaker.  Rule 6 provides for recording of  such  information in a  register  to  be maintained by the Secretary.  Will the recording of information in the register conclude  the  issue relating  to  the  two  requirements  of  para 3 of the Tenth Schedule?  There is not even a provision for  presumption  as to  the correctness of the entries in the register maintained under Rule 6.  The entries would at best only show that  such and  such  information was furnished by such and such member. The entries in the register  cannot  have  any  other  effect whatever. 37.   Rule  10 enables the Speaker to issue from time to time such directions as he may consider necessary in regard to the detailed working of the rules.  Will such directions also  be considered as constitutional mandates? 38.   Rules  7,8  and  9  set  out  the procedure for seeking disqualification of a member.  In this case the petitions for disqualifications were filed even on 24.10.97 long before the expiry of the period of 30 days specified in  Rule  3.    The question  of  disqualification  had  to  be  decided in those petitions.  The power  to  decide  disputed  disqualification under  Para  6(1) of the Tenth schedule is ’preeminently of a judicial complexion’.  The Speaker  or  the  Chairman  acting under Para 6(1) is a Tribunal (See ’Hollohna’ 1992 Supp.  (2) S.C.C.651).  Can the entries in the register maintained under rule  6  by the Secretary have the effect of establishing the two conditions required for para 3 of the Tenth Schedule?  It can if at all be only a piece of evidence in support  of  the claim of  one  party.    If  as  contended by the appellant’s counsel, failure to comply with the  rule  will  prevent  the raising  of  a plea of split, the compliance of the rule must have  the  effect  of  conclusively  proving  the  conditions required for  para  3.    That  will  lead  to  an  anomalous situation.  When a disqualification proceeding  is  initiated against  the members who claim the benefit of para 3 they can defeat the proceeding by furnishing some information  to  the Speaker  under Rule 3 and getting it recorded in the Register under rule 6.    Thus  a  matter  which  has  to  be  decided judicially  under  Para  6(1)  of  the Tenth schedule may get decided administratively by compliance  of  Rules  3  and  6. Undoubtedly  such a status cannot be given to the rules which are only procedural.  If the contention  of  Mr.    Sibal  is accepted, form will stand exalted over substance. 39.  Now I  shall  advert  to ’Ravi S.  Naik’ 1994 Supp.  (2) S.C.C.  641.  Both the learned Judges who  decided  the  case were party to the majority Judgment in "Hollohan’.  it is too much  to  say that they had not properly understood their own dictum in ’Hollohan’, the Bench dealt with the facts of  each appeal separately.   The Bench observed in C.A.  3390 of 1993 as follows:        "...  The 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

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      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.  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. 40.   Again in Civil Appeal 2904 of  1993.  the  Bench  dealt with Paras 2 and 3 of the 10th Schedule and said:         "  As  noticed  earlier  paragraph  2  of  the Tenth         Schedule provides for disqualification on the ground         of defection if the conditions laid down therein are         fulfilled and  paragraph  3  of  the  said  schedule         avoids  such  disqualification  in  case  of  split.         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 and the         burden to prove the requirements of paragraph  3  is         on the member who claims that there has been a split         in  his  original  political  party and by virtue of         said split the disqualification under paragraph 2 is         not attracted.  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, layon  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.         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  total  number  of  members  in  the         legislature party of the MGP (the original political         party) was   eighteen.    In  order  to  fulfil  the         requirements of  paragraph  3  Naik’s  group  should

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       consist   of   not   less  than  6  members  of  the         legislature party of the MGP.  Naik has claimed that         at the time of split on December 24, 1990 his  group         consisted  of  eight  members  whose  signatures are         contained in the declaration, a copy  of  which  was         filed with the reply dated February 13, 1991.         The Speaker has held that the  split  had  not  been         proved  because  no  intimation  about the split has         been given to him in accordance with rules 3  and  4         of the Disqualification rules.  We find it difficult         to endorse   this   view.     Rule  3  requires  the         information  in  respect  of  matters  specified  in         clauses  (a)  (b)  and  (c)  of  sub-rule  (1) to be         furnished in the prescribed form  (Form  1)  to  the         Speaker  by  the  leader  of  the  legislature party         within 30 days after the first sitting of the  House         or  where such legislature is formed after the first         sitting, within 30 days after its formation.  rule 4         relates to information  to  be  furnished  by  every         member  to  the  Secretary  of  the  Assembly in the         prescribed form (Form III).  In respect of a  member         who  has taken his seat in the House before the date         of commencement of the Disqualification  Rules,  the         information  is  required  to be furnished within 30         days from such date.  In respect  of  a  member  who         takes  his  seat in the House after the commencement         of the Disqualification rules such  information  has         to  be  furnished  before  making and subscribing an         oath  or  affirmation  under  Article  188  of   the         Constitution and taking his seat in the House.  rule         4 has no application in the present case because the         stage  for  furnishing  the required information had         passed  long  back  when  the   members   made   and         subscribed  to  oath  and  affirmation  after  their         election in 1989.  Rule 3 also comes into play after         the split and the failure on the part of the  leader         of  the  group that has been constituted as a result         of the split does not mean that there  has  been  no         split.   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.  In the present case the         split  was  sought  to  be proved by the declaration         dated December 24, 1990 whereby eight MLAs belonging         to  the  MGP  declared  that  they  had  constituted         themselves  into  a  group  known as Maharashtrawadi         Gomantak Party (Ravi Naik Group).   A  copy  of  the         said  declaration was submitted along with the reply         filed by Naik on February 13, 1991 and the  original         declaration bearing the signatures of the eight MLAs         was  produced  by  the  advocate for Naik during the         course  of  the  hearing  before  thee  Speaker   on         February 13,   1991.      The   genuineness  of  the         signatures on the said declaration was not  disputed         before the  Speaker.   One of the signatories of the         declaration, namely, Dharma Chodankar,  had  written         to  the  Speaker  that  his signatures were obtained         forcibly.  That may have a bearing on the number  of         members constituting the group.  But the fact that a         group  was  constituted  is  established by the said         declaration."         [Emphasis supplied]         With respect, I express my whole  hearted  agreement         with  the  reasoning.  The  ruling  does  not at all         require  re-consideration.  The  contention  of  the         appellant  is  therefore  rejected.  I hold that the

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       Speaker has not violated any of  the  constitutional         mandates.         (II)  Violation of principles of Natural Justice               ------------------------------------------- 41.  Under this head, the argument of the appellant  relates to  two affidavits filed on 25.2.98 six on 4.3.98 and one on 10.3.98.  The two affidavits filed on 25.2.98 were  that  of Narinder Singh  and  Markandeya  Chand.  They were presented when the arguments were proceeding.  The same  was  objected to by the counsel who was appearing for the appellant before the  Speaker  on  the  ground that they had been filed after 9.2.98 which was the last day to produce evidence.   In  the copy   of  the  proceedings  dated  25.2.98,  the  following statement is found:    "Whether the above affidavits be placed on record and  be read  in evidence or not will be considered presently during arguments". According to the appellant, the Speaker  did  not  pass  any order  thereafter  to  take  the affidavits on record but he relied on them in his order and thus violated the principles of Natural Justice as the appellant had  no  opportunity  to controvert the averments in the affidavits. 42.    In his order, the Speaker has stated as follows:         "When we resumed  the  hearing  at  6.00  P.M.    on         25.2.98 the respondents’ counsel Shri A Kumar made a         request  that the presence of 6 MLAs who were in the         division of the BSP on 21.10.97  be  noted  and  the         affidavits  of  Chaudhary  Narendra  Singh  and Shri         Markandeya Chand be read in  evidence.    These  six         MLAs  were Sarvasri Munna Lal Maurya, Rajendra Singh         Patel, Jai Narain Tewari, Ved Prakash,  Shiv  Ganesh         Lodhi and  Qasim Hasan.  The names of all these MLAs         are  mentioned  in  Annexure  I  to  the   aforesaid         affidavits.         Similarly,  the  petitioners  also produced Sarvasri         Haji Akbar Husain, Ram Ratan Yadav,  Vibhuti  Prasad         Nishad,  Shiv  Charan  Prajapati,  Ram Kripal Singh,         Chootey Lal Rajbhar and Matesh Chandra  Sonkar  MLAs         and   requested   that   their   presence   on   the         petitioners’ side be also noted.  The names of these         persons also find place in Annexure I  to  the  said         affidavits.         The  presence of all the adovementioned MLAs         presented by both sides was accordingly noted.         So  far  as  the  affidavits  of   Chaudhary         Narendra  Singh  and Markandeya Chand are concerned,         the petitioners counsel  strongly  objected  to  the         same  on  the ground that the respondents were given         last opportunity of file affidavit by 9.2.1998 which         date has expired and hence the affidavits should not         be taken or record.         On being asked whether the petitioners would         like to file reply to the said affidavit in case the         same  is  placed on record, the petitioners’ counsel         Shri Umesh Chandra stated that he would not file any         reply but would object to taking the same on record.         During the course of arguments  Shri  Umesh  Chandra         referred  to  some paragraphs of this affidavit also         to contend that there was no division  of  the  BSP.         (Underlining mine)         I find that for determining the  controversy         completely  and  finally  it  is  in the interest of         justice  to  place  the  affidavits  on  record  and         particularly  when  the  petitioners  do not want to         file any reply to the same.

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       Again in another place, it is stated as follows:         The  various  applications, pleadings and affidavits         filed after the petition  was  amended  on  5.12.97,         have  already  been stated earlier in this order and         they need not be repeated here.   Reference  to  the         relevant   applications,  pleadings  and  affidavits         shall made where considered necessary.   Suffice  it         to  say  that  in  order  to  finally and completely         adjudicate upon the controversy, and in the interest         of justice, and particularly  keeping  in  view  the         serious  consequences  flowing from disqualification         of a member of the Assembly.  I have taken on record         all the applications and affidavits filed even after         9.2.1998.  Parties  have  been  afforded  sufficient         opportunity to meet the case of each other. 43.  In the S.L.P.  a ground is raised that the averment  in the  order  that  the appellant’s counsel said that he would not file any reply to the affidavits is factually incorrect. But there is no denial whatever in the SLP of  the  averment that  during  the  course  of  arguments  Shri Umesh Chandra referred to  some  paragraphs  of  that  affidavit  also  to contend that  there  was  no  division  of  the  BSP.    No. argument  was  also  advanced  before  us  challenging   the correctness of  that averment.  When the appellant’s counsel had himself relied on portions of the  affidavits  filed  on 25.2.98,  there  is  no substance in the contention that the Speaker had taken them on record  behind  the  back  of  the appellant.   There  is  also  no substance in the contention that the appellant had  no  opportunity  to  controvert  the contents of   those  affidavits.    On  the  very  same  day (25.2.98) the appellant filed an application and  affidavits of nine MLAs at 7.40 P.M.  She could have then said whatever she wanted to say about the contents of the affidavits filed by the  respondents.    It  is not the case of the appellant that Speaker did not permit her to  file  any  affidavit  in reply to  the  said affidavits of the respondents.  the only objection to the reception of the affidavits in question was that it was filed after  the  expiry  of  the  time  granted earlier to file a list of members of BSP.  The appellant was represented  by  practising  lawyers who knew very well that the Speaker had ample powers to condone the delay in  filing the affidavits.   In the Proceedings of 25.2.98 it is stated towards the end that "learned counsel for the two sides  had made their submissions on factual and legal aspects".  It is not  the  case  of  the  appellant  that  any  argument with reference to the said affidavits was shut out.  Moreover the contents of the affidavits filed on  25.2.98  are  almost  a repetition   of  the  contents  of  the  Additional  Written Statement filed on 2.2.98 plus the two annexures  containing the  names  of  26  members  who formed the group of JBSP on 21.10.97 and 18 members who continued in the group till then besides a plea of split within split.  I  do  not  find  any violation  of  the  principles  of  Natural  Justice  in the Speaker’s taking on record the two affidavits filed  by  the respondent on 25.2.98. 44.   The other affidavits said to have been taken on record without notice to the appellant were  filed  on  4.3.98  and 10.3.98.  According to the respondents those affidavits were filed in reply to the nine affidavits filed by the appellant on 25.2.98  at  7.40  P.M.   According to them the appellant filed them without serving copies on the  and  they  had  to obtain copies from the office of the Speaker on 27.2.98.  It is  stated by the appellant that the affidavits filed on her behalf were presented before the Speaker in  the  course  of arguments in  the  presence of counsel for the parties.  The

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proceedings of the Speaker dated 25.2.98  do  not  make  any reference to  the  said  affidavits.  The endorsement on the margin of the application of the appellant dated 25.2.98 and the affidavits filed therewith prove that they were filed in the office of the Secretary to the Speaker at 7.40 P.M.  and on the same day, thee Speaker has made an endorsement in the margin  directing  the  placing  of  the   application   and affidavits on  record.    Whatever  it may be, it is not the case of the appellant that copies of those  affidavits  were served on  the  respondents  or  their counsel.  There is no record to prove such service. 45.     The Speaker has dealt with this matter in his  order as follows:-         "The  petitioners  themselves had filed 9 affidavits         at 7.40 P.M.  on  25.2.1998  while  hearing  on  the         petitions  was  going on. Copies of these affidavits         were not served on respondents on  25.2.1998.  Their         counsel  obtained  it  on  27.2.1998  i.e. after the         orders were reserved on the case on  25.2.1998.  The         respondents  filed  6 affidavits dated 25.2.1998 and         27.2.1998 by means of an application dated  4.3.1998         which specifically stated that these affidavits were         being  filed  in reply to the said 9 affidavits. The         affidavit of Shri Ram Ratan Yadav filed on 10.3.1998         is almost entirely the same as the affidavits  filed         by the petitioners on 25.2.1998.         One  more  fact  needs  to  be stated at this stage.         Shri R.K.      Chaudhary,   petitioner,   sent    an         application/letter dated 16.3.1998 asking for copies         of the affidavits filed on behalf of the respondents         after the  order  was  reserved  on  25.2.1998.  The         copies of these affidavits were sent  to  Shri  R.K.         Chaudhary  along  with  a  letter dated 17.3.1998 in         which he was informed that copies of the  affidavits         filed  by  the petitioner on 25.2.1998 were received         by the respondents  counsel  on  27.2.1998  and  the         affidavits  filed  alongwith  the  application dated         4.3.1998 were filed in reply thereof.    Along  with         the  said  letter,  a copy of the affidavit filed by         Shri Ram Ratan Yadav dated 10.3.98 was also sent  to         Shri R.K.  Chaudhary.  It was specifically mentioned         in  the  letter of 17.3.98 that in case he wanted to         submit anything he may appear before me  on  19.3.98         at 1.00  P.M.   Information of this date was sent to         the respondents also.  On  19.3.98  the  respondents         Chaudhary   Narendra   Singh  and  Markandeya  Chand         appeared along with their counsel Shri A  Kumar  and         Sri N.K.  Pandey.  On behalf of the petitioners Shri         Daya Ram Pal, President of the U.P.  BSP handed over         a letter of Shri R.K.  Chaudhary that the purpose of         the  letter  dated 17.3.98 was not clear and as such         the same be made clear.  In reply to this letter  of         Shri R.K.    Chaudhary,  a letter was sent to him on         19.3.98 informing him that if he wanted to file  any         reply  to  the  said affidavit or submit anything in         his favour or to file anything, he may do  the  same         on that date   i.e.     19.3.98.    Nobody  appeared         thereafter on behalf of  the  petitioner  Shri  R.K.         Chaudhary nor  filed  any  document.   The aforesaid         letters have been placed on  the  records.    In  my         view, in the particular circumstances of the case no         prejudice  has  been caused to any of the parties by         admitting the aforesaid affidavits on record". 46.     Again the Speaker has stated thus in his order:-         "Since the facts stated about the  split  and  threat

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       etc.   in the affidavits of Sri Vans Narain Singh and         others filed on 2.2.1998  and  the  affidavits  dated         25.2.1998  of  Shri  Markandeya  Chand  and Chaudhary         Narendra Singh, (including the allegations  of  split         within  split)  and  the  facts  stated  in  the  six         affidavits  filed  through  the   application   dated         4.3.1998   have   not   been   controverted   despite         opportunity having been given to the petitioner  Shri         R.K.   Chaudhary  (who  was  also  looking  after the         petitions of Ms Mayawati), I prefer to place reliance         on them and hold  that  there  was  a  split  in  the         Bahujan  Samaj  Party on 21.10.1997 and a faction had         risen as a result of this split  in  the  BSP  and  a         group  of  BSP  MLAs consisting of 26 BSP MLAs (whose         names are mentioned in Annexure I to  the  affidavits         of  Chaudhary  Narendra  Singh  and  Shri  Markandeya         Chand,  filed  on  25.2.1998)  was   constituted   on         21.10.97  itself  representing the faction which thus         arose and that this group known as Jantantrik BSP". 47.  An objection  is  taken  before  us  in  the  course  of arguments  that R K Chaudhary never represented the appellant in the proceedings before the speaker and notice to him  will not amount  to  notice  to the appellant.  No such ground has been taken in the S.L.P.  There is no denial  in  the  S.L.P. of  the  averment found in the order of the Speaker that R.K. Chaudhary was looking after the petitions of  the  appellant. Without  challenging  the correctness of the statement in the S.L.P.  it is not open to counsel for the appellant to  raise the  contention  for  thee  first  time  in the course of his arguments.  In the order of the Speaker dated 7.11.97  it  is stated that R.K.   Chaudhary MLA and D.R.  Verma, Ex Chairman Legislative Assembly came and produced  two  letters  of  the appellant before the Speaker which shows that R.K.  Chaudhary did represent the appellant in these proceedings.  In fact he filed  petitions  for  disqualification  only on 11.11.97 and those petitions were nothing but repetition of the  petitions filed by  the  appellant.    In  the  circumstances it is not possible for this Court to say that the averment made by  the Speaker in  his  order that R.K.  Chaudhary was looking after the petitions filed by the appellant is not correct. 48.   While I am unable to accept the factual contention that the appellant had no opportunity to controvert the affidavits filed before the Speaker on 25.2.98, 4.3.98 and 10.3.98, I am of the opinion that even so there  is  no  violation  of  the principles of  natural  justice.    This  court  has  in  The Chairman, Board of Mining Examination and Chief Inspector  of Mines  of Mining Examination and Chief Inspector of Mines and Another versus Ramjee (1977) 2  S.C.C.    256  discussed  the principles of natural justice and said:         "Natural justice is no unruly horse, no lurking  land         mine, nor  a judicial cure-all.  If fairness is shown         by the decision maker to the man  proceeded  against,         the  form,  features  and  the  fundamentals  of such         essential processual propriety being  conditioned  by         the  facts  and  circumstances  of each situation, no         breach of  natural  justice  can  be  complained  of.         Unnatural   expansion  of  natural  justice,  without         reference to the administrative realities  and  other         factors of a given case, can be exasperating.  We can         neither  be  finical  nor  fanatical  but  should  be         flexible yet firm in this jurisdiction.  No man shall         be hit below the belt - that is the conscience of the         matter"         "But  then  we  cannot look at law in the abstract or         natural justice as a mere artifact.  Nor can  we  fit

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       into   a   rigid  mould  the  concept  of  reasonable         opportunity"         "These general observations must  be  tested  on  the         concrete  facts  of  each  case  and  every minuscule         violation does not spell illegality.  If the totality         of circumstances satisfies the court that  the  party         visited  with  adverse  order  has  not suffered from         denial  of  reasonable  opportunity  the  Court  will         decline  to  be  punctilious  or  fanatical as if the         rules of natural justice were sacred scriptures". 49.   It has not been proved by the appellant that there is a failure of substantial justice. In the absence  of  bias  and malafides,  the  contention  that the order of the Speaker is vitiated by violation of principles of natural justice has to fail. (III)  PERVERSITY ----------------- 50.  One of the contentions urged under  this  head  is  that speaker   has   by  unduly  delaying  the  proceedings  acted perversely.  Though learned senior counsel  stated  expressly in  the  course of his arguments that he is not alleging bias or personal mala fides against the Speaker,  in  the  written submissions given by him, it is stated as follows:         "The Hon’ble Speaker by not deciding the  petitioners         expeditiously  and by allowing the BJP time to garner         support for  the  purposes  of  the  defence  of  the         respondents  under  paragraph 3 has acted contrary to         the constitutional mandate". The said  submission  is  not  permissible  in  view  of  the statement expressly  made  and  referred  to  above.   In any event, merely because there is  a  delay  in  concluding  the hearing, the  order  cannot  be  said  to  be  perverse.  The Speaker has framed the question  properly  as  to  whether  a split  as  alleged  by  the  respondents  had  taken place on 21.10.97 and whether it was supported by acceptable evidence. This Court in exercise  of  its  power  of  limited  judicial review has only to see whether the findings arrived at by the Speaker  are  perverse  in  the sense in which the expression "perversity" has been understood by  this  court  in  several decisions.   I  am  unable to accept that as a matter of law, delay in  the  completion  of  proceedings  would  by  itself vitiate the order passed by him. 51.   But  I  wish to add that it is absolutely necessary for every Speaker to fix a time schedule in  the  relevant  rules for  disposal of the proceedings for disqualification of MLAs or MPs.    In  my  opinion  all  such  proceedings  shall  be concluded  and  orders  should  be  passed within a period of three weeks from the date on which the petitions are taken on file. 52.   Before considering the relevant findings of the Speaker which are said to be perverse by the appellant, it is  better to refer to the rulings which define perversity. 53.   As  pointed  out  already  in  Kihoto  Hollahan  versus Zachillhu and others  1992  Supp.    (2)  S.C.C.    651   the constitution  Bench  has laid down that the power of judicial review vis-a-vis the order of  the  speaker  under  paragraph 6(1)  of  the  Tenth  schedule  is confined to jurisdictional errors only based on  violation  of  constitutional  mandate, mala  fides,  non  compliance of rules of natural justice and perversity. 54.   In Associated Provincial Picture  Houses,  Ltd.  Versus Wednesbury  Corporation  1947  Vol  2 All England Reports 680 Lord Greene, M.R.  dealt with a case where the proprietors of a Cinema  theatre  sought  a  declaration  that  a  condition imposed  by the Wednesbury Corporation on grant of permission

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for Sunday performances to be held in that cinema  was  ultra vires.  The  Court dismissed the action. The relevant passage in the judgment reads as follows:         "In the present case we have heard a great deal about         the meaning  of  the word "Unreasonable".  It is true         the discretion must be exercised  reasonably.    What         does that   mean?      Lawyers   familiar   with  the         phraseology commonly used in relation to the exercise         of  statutory  discretions   often   use   the   word         "unreasonable" in  a  rather comprehensive sense.  It         is frequently used as a general  description  of  the         things that must not be done.  For instance, a person         entrusted  with  a  discretion  must  direct  himself         properly in law.  He must call his own  attention  to         the matters  which  he is bound to consider.  He must         exclude from  his  consideration  matters  which  are         irrelevant to the matter that he has to consider.  If         he  does  not obey those rules, he may truly be said,         and often  is  said,  to  be  acting  "Unreasonably".         Similarly,  you  may have something so abuser that no         sensible person could ever dream that it  lay  within         the powers of the authority...."    After referring to a judgment of Theatre de Luxe (Halifax) Ltd. versus Gledhill (5) (1915) 2 K.B. 49 the  learned  Judge observed:         "  I  do not find in any of the language that he used         any justification for thinking that  it  is  for  the         court to decide the question of any justification for         thinking  that  it  is  for  the  court to decide the         question of  reasonableness  rather  than  the  local         authority. I do not read him as in any way dissenting         from  the view which I have ventured to express, that         the task of the court is not to decide what it thinks         is reasonable, but to decide  whether  the  condition         imposed  by  the  local  authority  is  one  which no         reasonable authority, acting within the four  corners         of their jurisdiction, could have decided to impose". 55.    In  "Judicial Review of Administrative Action" 5th ed. at P.549 it is stated as follows:         "Unreasonableness"   is   sometimes  used  to  denote         particularly extreme behavior, such as acting in  bad         faith,  or a decision which is "perverse" or "absurd"         - implying that the decision-maker has taken leave of         his senses". 56.   In CCSU versus Minister for Civil Service (1984) 3  All E.R. 935 Lord Diplock observed:         "By  ’irrationality’  I  mean  what  can  by  now  be         succinctly     referred     to     as     ’Wednesbury         unreasonableness’  (see Accociated Provincial Picture         Houses Ltd. versus Wednesbury Corporation 1947 Vol. 2         All E.R. 680, (1948) 1 K.B. 223).  It  applies  to  a         decision  which  is  so  outrageous in its defence of         logic or accepted moral standards  that  no  sensible         person who had applied his mind to the question to be         decided could have arrived at it". 57.     In Nottinghamshire County Council versus Secretary of the Environment and another appeal 1986 Vol 1  All  E.R.  199 Lord Scarman observed as follows:         "Such an examination by a court  would  be  justified         only  if  a  prima  facie  case  were to be shown for         holding that the Secretary of State had acted in  bad         faith   or  for  an  improper  motive,  or  that  the         consequences of his guidance were so absurd  that  he         must have taken leave of his senses". 58.    In Tata Cellular versus Union of India (1994) 6 S.C.C.

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651, a Three Judge Bench of this court to  which  one  of  us (M.M. Punchhi, J., as His Lordship then was) was a party, the law was stated thus:         "...Shortly   put,   the   grounds   upon   which  an         administrative  action  is  subject  to  control   by         judicial review can be classified as under:         (i)    Illegality:    This   means the decision-maker         must understand correctly the law that regulates  his         decision making power and must give effect to it.         (ii)        Irrationality,     namely,     wednesbury         unreasonableness.         (iii)    Procedural impropriety" 59.  In  Union  of  India  and another versus G.  Ganavutham (1997) 7  S.C.C.      463   this   court   has   interpreted reasonableness  and  rationality  which  are two grounds for judicial review.    The  Court  referred  to  the  rule   in Wednesbury (supra) and observed:         "Therefore    to    arrive    at    a   decision   on         "reasonableness" the Court has to  find  out  if  the         administrator  has left out relevant factors or taken         into account irrelevant factors.  The decision of the         administrator must have been within the  for  corners         of  the  law,  and  not  one which no sensible person         could have reasonably arrived at,  having  regard  to         the  above principles, and must have been a bona fide         one.  The decision could be one of many choices  open         to  the  authority  but  it was for that authority to         decide upon the choice  and  not  for  the  Court  to         substitute its view". 60.   The order of the Speaker has to be tested in the light of the above principles only in order to decide  whether  it is perverse.    The  Speaker has taken note of the following circumstances for accepting the case of the respondents: (i)    Markandeya  Chand  announced  on  the  floor  of  the Assembly on 21.10.97 that under his leadership 23  MLAs  got separated  from  BSP and they formed one group. This was not controverted by the appellant or the other members of BSP. (ii)    In spite of such announcement, the petition filed by the appellant on 24.10.97 did not invoke  paragraph  2(1)(a) of  the  Tenth  Schedule  for disqualifying the respondents. There was no mention whatever about the split  announced  in the Assembly. (iii)   In the petitions filed by R.K. Chaudhary on 11.11.97 the  position  was  the  same. There was no reference to the split announced in the Assembly. (iv)   On 13.11.97 applications were filed for amendment  of the  petitions  which  were allowed by the speaker but there was no reference in these applications either to  the  split or to paragraph 2 (1)(a) of the Tenth Schedule. (v)  On 25.11.97 the respondents filed the written statement in which it was stated that a split had occurred as a result of  which  there  was  more  than  one  third  of  the   BSP legislators under  the  leadership  of Markandeya Chand.  On 26.11.97 appellant filed a reply/rejoinder.   There  was  no denial  of the split referred to in the written statement of the respondents. (vi) On 5.12.97 applications for amendment of the  petitions were  filed  in which there was only a denial of correctness of the statement made by Markandeya Chand  in  the  Assembly that  23  legislators  of BSP were with him. In Paragraph 7A and 7B of the petitions which were introduced  by  the  said amendment  there  was  no  dispute  of  the  factum of split pleaded by the respondents. (vii) On 2.2.98 an additional written statement was filed by Vansh Narain Singh setting out the  facts  relating  to  the

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split and  formation of JBSP.  There was also a reference to the threat caused by the appellant to JBSP members  and  the fact that  they were prevented from going to Lucknow.  There was also an allegation that signatures were taken  on  blank papers from  such  members.  The averments in the additional written statement were never controverted. (viii) The affidavits filed by the appellant on 25.2.98 were sworn to in November, 1997.  There was  no  explanation  for the same.    Three  of  the affidavits were contradicted and controverted by the dependents thereof.  The stamp papers on which the affidavits had been prepared were  issued  on  the same  day  and  the  names  of the persons to whom the stamp papers were issued were not written by the stamp vendor. (ix) The list of persons who joined JBSP on 21.10.97 was for the first time disclosed on 25.2.98 only but  the  appellant had  obtained  affidavits  from  9  of  the in November 1997 itself.  That shows that the appellant  knew  that  those  9 MLAs were at that time in the group led by Markandeya Chand. (x)  The video cassettes and other records filed in the case revealed that the appellant had instigated violence  in  the Assembly on  21.10.97  and  disrupted the proceedings.  That itself probablises the version that the MLAs  who  supported the  respondents were kept under threat by the appellant and prevented from going to Lucknow for some time.   The  matter is  one of oath against oath and the affidavits filed by the respondents and the other evidence  produced  by  them  were acceptable. 61.      All  the above circumstances referred to and relied on by  the  Speaker  are  quite  relevant  and  germane  for deciding the issue whether there was a split on 21.10.97 and whether  the group led by Markandeya Chand had not less than one third members of the BSP legislature party. 62.  Apart from this, the Speaker has considered the various facts relied on by the appellant  and  discussed  the  same. According to the appellant the following are the facts which would disprove the case of the respondents:         (a)   That a claim was made by  Markandeya  Chand  in         the  Assembly  that he had 23 BSP MLAs along with him         who got separated but the respondents who are  12  in         number were the only members of the BSP who had voted         in support of the Motion of Confidence on that day.         (b)   Those 12 persons became Ministers on 27.10.97.         (c)  In  spite  of  several opportunities having been         given and inspite  of  expiry  of  the  time  finally         granted till 9.2.98, the respondents did not disclose         the names of the members of the JBSP who were said to         be 26 in number.         (d)    When  the list was given on 25.2.98 there were         only 17 members in all in JBSP.         (e)   The respondents  have  not  complied  with  the         mandatory  provisions  of Rule 3 of the Rules inspite         of extension of time granted by the Speaker. 63.   All the above circumstances relied on by the  appellant have  been referred to and discussed in detail by the Speaker in his order. If any of them had been ignored,  it  could  be said  that  his  order  is vitiated. But that is not the case here. When there is no bias or mala fide, the  acceptance  of one  party’s  statement  on  facts and rejection of the other cannot be canvassed before this Court. 64.   The  appellant’s  counsel argued that the Speaker is in error in proceeding on the basis that the  averments  in  the affidavits filed on 25.2.98 on behalf of the respondents were not  controverted  by  the  appellant  and  the  Speaker  has overlooked that in the application filed by the appellant  on 25.2.98   along   with   nine   affidavits   they  have  been

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specifically controverted.    It  is  also  argued  that  the Speaker  is  in  the wrong in rejecting the affidavits of the MLAs filed by the appellant on  the  ground  that  they  were sworn in  November  1997 on different dates.  It is submitted by learned counsel that the appellant started collecting such affidavits from all the members of the BSP from 6.11.97 after the respondents claimed that they had  24  members  in  their group  and  that  she  could get them only when the concerned MLAs were available in LUCKNOW. 65.  The above arguments are fallacious.  The first  of  them negatives the other plea of the appellant that no opportunity was give to her to controvert the averments in the affidavits of the respondents filed on 25.2.98.  It is already seen that the  relevant  averments  were  all  made  in  the additional written statement filed on 2.2.98 and the appellant  did  not file any reply thereto.  The averments setting out the reason for  the  split  in  the  party on 21.10.97 and the averments describing the way in which the appellant kept the MLAs under threat and forced  them  to  sign  blank  papers  were  never controverted.   That  is  a crucial circumstance relied on by the Speaker and he cannot be faulted thereor.    The  Speaker has  drawn  an  inference  that the appellant knew that the 9 MLAs whose affidavits were  filed  by  her  on  25.2.98  were members of the group of the respondents when it was formed on 21.10.97  and  that  is  why  she got affidavits from them in November 1997 by force.  In the S.L.P.  the said inference of the Speaker has not been traversed.  There is no averment  in the S.L.P.    or  any  other  record  that  the appellant got affidavits from November’ 97 onwards  of  all  the  MLAs  who continued to  be  in  the  BSP.    In the absence of any such record, an argument advanced by counsel at the fag end of the arguments cannot be accepted. 66.     The reasoning of the  Speaker  is  in  the  following passages:-         "The   affidavits  of  the  respondents  thus  remain         uncontroverted and there is nothing on the record  to         disbelieve  them.  On  the other hand, the statements         made on  oath  in  the  respondents’  affidavits  are         corroborated   by  the  following  materials  on  the         record:-         (i)  Statement of Shri Sardar Singh made on the floor         of the House on 21.10.97 while speaking on the motion         of confidence.  The petitioners have  not  filed  any         evidence  to  controvert the statement of Shri Sardar         Singh,  which  was  made  on  the   first   available         opportunity.         (ii) Admission in Paragraph 3  of  the  9  affidavits         filed  on  behalf  of  the respondents that there was         anarchy in the House on 21.10.97.   These  affidavits         have  been  sworn  in the month of November, 1997 and         are totally silent on the points  of  Ms.  Mayawati’s         direction given on 21.10.97.         (iii) Video cassettes recording the proceedings dated         21.10.97  of  the  House   unmistakably,   and   with         prominence, show Ms.  Mayawati instigating, exhorting         and  directing the BSP MLAs sitting behind her and on         her side, to come to the well of the House and create         disturbance.  It may be noticed the Speaker was being         attacked by BSP MLAs and  other  opposition  MLAs  by         suing(sic)  wooden loud speaker box, microphones etc.         The video cassettes of Enadu, BI, Zee, ANITV channels         may be referred to in this behalf.   These  cassettes         are on the record.  Still photographs taken from some         of  the  video cassettes have also been placed on the         record.

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       (iv)  The  fact  that  violence  was  committed,  and         disturbance  created, in the House at the instance of         Ms.   Mayawati  and  some   other   opposition   MLAs         immediately  after  the recital of ’Vande Matram’ was         over and the Speaker was attacked.  This is precisely         what Ms.  Mayawati had directed her  MLAs  to  do  on         21.10.97."

       "The video cassettes clearly show that Ms.   Mayawati         instigated  and abetted the commission of violence in         the House on 21.10.1997 in which  microphones,  table         tops   and  sound  boxes  were  pulled  up  from  the         legislators’  and  reporters’  table  and  used   for         assaulting the  Speaker  and  others.  Their acts are         criminal in nature.  Apatment of these acts is also a         crime.  There is prima facie evidence in the  present         petitions to  show  that  Ms.   Mayawati is quilty of         this offence".         "Now it is to be seen as to whether as matter of fact         a faction had arisen as a result of split in the  BSP         and  the  respondents have made a claim that they and         other  members  of  the  BSP  Legislature  party  had         constituted a group representing that faction.         Paragraph 11 of the affidavits of Sarvsri Vans Narain         Singh and other respondents filed on  2.2.98  clearly         states  that in the background of directions given by         Ms.  Mayawati to the BSP MLAs when they  had  sat  in         the   cars   for   coming   to  the  Assembly,  these         respondents and other MLAs of the BSP,  whose  number         was  not  less  than one-third of the total number of         the BSP MLAs, sat in the lobby, discussed the  matter         and at that very moment there was a split amongst the         BSP  MLAs  and these member of the BSP, who separated         from the BSP,  formed  a  separate  group  under  the         leadership  of  Shri  Markandey  Chand  and  that the         number of such members was not less than one-third of         the BSP members.  It is further averred that  it  was         not  possible  for  them to remain members of the BSP         any more  and  that  the  fact  was  stated  by  Shri         Markandey Chand  in the House on 21.10.97.  Paragraph         12 of the said affidavits further state that  as  was         apparent  from  the statement of Shri Markandey Chand         there was a split in the BSP and there were 23 member         (MLAs) after that split with him and  this  became  a         separate group.    The timings of the split was given         before the Speaker came to the sitting of  the  House         on 21.10.1997.             The     averments   in   these   affidavits   are         corroborated by the statement of Shri Markandey Chand         given on the floor of the House on  21.10.1997  which         was read in evidence by agreement of parties.              The  petitioners  did  not file any reply to the         said affidavits".         "These is no  sufficient  reason  to  disbelieve  the         averments in   these  affidavits.    They  have  been         corroborated in material particulars by  circumstance         and other  materials on record.  The reason given for         splitting the BSP has been found to be true as it  is         supported  by  the actual happening of violent events         in the House on 21.10.1997 which took  place  at  the         active  instigation  exhortation  and abetting of Ms.         Mayawati herself.  The video cassettes and  the  news         reports  of  the proceedings of the House of 21.10.97         further support this.  Then  the  statement  of  Shri         Sardar  Singh  about the split and its cause and Shri

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       Markandey Chand’s statement about the split both made         on the first available opportunity on  the  floor  of         thee House  on  21.10.97  itself  are  there.    Shri         Markandey Chand informed the House  of  the  fact  of         split in BSP by 23 BSP MLAs under his leadership.              Another fact which  supports  the  case  of  the         respondents  is  that,  apart  from  the respondents,         there were many BSP MLAs who did not  participate  in         the   disorder   or   violence   in  the  House.  The         respondents say that they were those who were in  the         group  of  BSP  MLAs  causing  split.  This  fact  of         non-participation of several BSP MLAs in disorder  or         violence is corroborated by the video cassettes".         "Further,  the  petitioners  counsel  had  stated  on         26.11.97  that  he  did  not  propose  to  file   any         documentary  evidence  except  those  filed  with the         petitions.   These  affidavits  have  been   suddenly         produced on 25.2.98 when Chaudhary Narendra Singh and         Shri   Markandey   Chand   filed   their   affidavits         disclosing the names of 26 MLAs and  further  setting         up the  case  of split within split.  The contents of         these affidavits are not supported by the  events  of         21.10.1997.   There  is  no  reason  why their recent         affidavits were not filed.  In fact they do create az         suspicion in the mind that they had been obtained  by         the  petitioners  under  threat  as  alleged  by  the         respondents". 67.  There is not even an attempt to explain any of the above features relied on by the  Speaker  for  rejecting  the  nine affidavits filed  by  the appellant on 25.2.98.  Nor is there any argument against the reliance placed by  the  Speaker  on the video tapes showing how the appellant instigated the MLAs to  resort  to  violence  and  disturb the proceedings in the Assembly on 21.10.97.  The question before this Court is  not whether  on the facts and circumstances of the case there was a split as alleged by the respondents  on  21.10.97  but  the question  is whether the conclusion arrived at by the Speaker after taking note of all the aforesaid circumstances for  and against  the  respondents  is  so  unreasonable  or absurd or perverse that he must have taken leave of his  senses.    The speaker   has   not  left  out  any  relevant  material  from consideration; nor has he referred to any irrelevant  matter. In  the  facts  and  circumstances of this case it can not be said that no reasonable or sensible person  who  had  applied his  mind to the question to be decided could have arrived at the findings  given  by  the  Speaker.    It  should  not  be forgotten while dealing with this question of perversity that according  to  the  appellant’s  counsel there was no bias or mala fide on the part of the Speaker.  If  the  materials  on record  are  considered  on that basis it can at best be said that, if at  all,  two  conclusions  were  possible  and  the Speaker has  chosen  one  of them.  In the circumstances I do not find any perversity  in  the  findings  rendered  by  the Speaker.   It  is  worth  recalling  the observations of Lord Fraser of Tullybelton in Re Amin (1983) 2  All  E.R.  864  at page  868,  that  "Judicial  review is concerned not with the merits of a  decision  but  with  the  manner  in  which  the decision  was  made...  Judicial review is entirely different from an ordinary appeal". 68.  The Speaker has considered the question of split  within split alleged to have taken place in JBSP.  It is unnecessary for the  purpose of this case to go into that question.  Such a subsequent split in JBSP is referred to by the  respondents only  for  the  purpose  of explaining how there were only 19 members in that group on 25.2.98.  The only relevant question

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is whether there was a split on 21.10.97 and the group  which got  separated  from  the  BSP consisted of not less than one third members of the BSP legislature party.    That  question having  been answered in favour of the respondents, it is not necessary to go into the question whether there was a further split in  JBSP  and  if  so,  the  effect  thereof.     After considering the materials on record, I am of the opinion that the  findings  arrived  at by the Speaker are not vitiated by perversity.          G. SEQUEL TO JUDICIAL REVIEW 69.  In the view I have taken it is not necessary for  me  to consider  the  question  whether this Court should decide the entire matter here in the event of setting aside the order of the Speaker or remand the matter for fresh  disposal  by  the Speaker in  accordance  with the judgment of this Court.  For the sake of completion.  I wish to express my opinion on that question too.  If the order of  the  Speaker  is  to  be  set aside, I am of the view that the matter should go back to the Speaker for  fresh  decision.  It is not the function of this Court to substitute itself in place of the Speaker and decide the questions which have arisen in the case. Learned  counsel for  the  appellant  placed  reliance on the judgment of this court  in  Bengal  Chemical  &  Pharmaceutical  Works   Ltd., Calcutta   versus Their workmen1959 Supp. (2) S.C.R. 136. The law as stated in that case is as follows:         ".....A free and liberal exercise of the power  under         Art.  136 may materially affect the fundamental basis         of  such  decisions,  namely,  quick solution of such         disputes to achieve industrial peace.    Though  Art.         136  is  couched in widest terms, it is necessary for         this Court to exercise its discretionary jurisdiction         only in cases where awards are made in  violation  of         the    principles   of   natural   justice,   causing         substantial and grave injustice to parties or  raises         an  important  principle  of industrial law requiring         elucidation and  final  decision  by  this  court  or         discloses   such   other   exceptional   or   special         circumstances which merit the consideration  of  this         Court". I  do  not  know  how  this passage would help the appellant. This Court has only said that interference under Article  136 is  necessary  (1)  where awards are made in violation of the principles of natural justice causing substantial  and  grave injustice  to  parties (2) where the case raises an important principle of law requiring elucidation and final decision  of this  Court  and  (3)  where  the  case  discloses such other exceptional circumstances which merit  the  consideration  of this Court.    the passage cannot be interpreted to mean that after setting aside the order of thee  Tribunal  the  factual questions could  be  decided  by this Court.  Learned counsel referred also to Hindustan Tin  Works  Pvt.    Ltd.    versus Employees of Hindustan  Tin Works Pvt.  Ltd.  1979 (1) S.C.R. 563.  The Court relied upon the passage in Bengal Chemical  & Pharmaceutical   Work   Ltd.,  (supra)  extracted  above  and modified the award.  That  ruling  also  does  not  help  the appellant in any manner. 70.    In vice Chancellor, Utkal University versus S.K. Ghosh 1954  S.C.R.  883  the Constitution Bench held that it is not the function of Courts of law to substitute their wisdom  and discretion  for  that  of  the  persons to whose judgment the matter in question is entrusted by the law. 71.    When the Tenth Schedule has expressly constituted  the Speaker  or  the  Chairman  as  the case may be to decide the question of disqualification and attach finality thereto,  it is  not  for  this Court to consider the facts and decide the

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said question by substituting itself  in  the  place  of  the Speaker.  If  the order of the Speaker is set aside on any of the grounds mentioned in ’Hollohan’ (supra) by exercising the power of limited judicial review, the consequential course to be adopted is to leave the matter to the  Speaker  to  decide afresh in accordance with law.          H. CONCLUSION 72.    The Speaker has found on the basis of the records that the appellant instructed the members of the BSP to indulge in violence and disrupt  the  proceedings  in  the  Assembly  on 21.10.97.  It  is also found that the allegations made by the respondents that the members of  the  JBSP  were  kept  under threat  by the appellant and prevented from entering Lucknow. In view of such finding also which is supported  by  records, the  discretionary  jurisdiction  under  Article  136  of the Constitution  should  not  be  exercised  in  favour  of  the appellant.        For  all  the above reasons this appeal deserves to be and is hereby dismissed. THOMAS, J. ---------        Leave granted. Twelve  MLAs of Bahujan Samaj Party ("BSP" for short) crossed floor of the House in the Legislative Assembly of  the  State of  Uttar  Pradesh  (UP)  and  voted in favour of a motion of confidence moved by the Chief Minister of the  State.    Soon thereafter  all  those twelve MLAs were made Ministers in the State cabinet headed by Chief  Minister  Shri  Kalyan  Singh. Appellant  (MS Mayawati) who is the leader of BSP Legislature Party complained that the twelve MLAs who defected (they  are arrayed   as   respondents  in  this  appeal)  have  incurred disqualification for membership of the Assembly. the  Speaker of  the  Assembly,  by  the  impugned  order  exonerated  the respondents from the tentacles of disqualification  envisaged in  the Xth schedule to the Constitution of India. Hence this appeal by special leave. There  is  no need to elaborate on the facts as they, by themselves, are compendious.  Elections held to the  Uttar Pradesh  Vidhan Sabha (Legislative Assembly) in 1996 resulted in a hung Assembly as no  political  party  secured  absolute majority.  However,  appellant  Ms.    Mayawati  became Chief Minister of the State as her party consisting of 67  MLAs  in the  Assembly was supported by the MLAs belonging to Bhartiya Janata Party (BJP).  But she demitted  the  office  of  Chief Minister  on  29.9.1997  as  per an understanding between the aforesaid two parties.  On the next day  Shri  Kalyan  Singh, leader  of the BJP Legislature Party became Chief Minister on the assumption that BSP would support him.  But  contrary  to the  said  assumption  BSP  withdrew  support to Kalyan Singh Government on 17.10.1997.  Kalyan Sing was thereupon directed by the Governor to prove  that  he  enjoyed  the  support  of majority MLAs  in  the Assembly.  On 20.10.1997 the appellant Ms Mayawati issued a whip to all the MLAs of her party in the following terms.         "You are hereby informed that you should  be  present         in  the  Session  of  the  UP Legislative Assembly on         21.10.1997 from 11 A.M.  till the end of the  sitting         and  vote  against  the Motion of Confidence moved by         the BJP Government". On 21.10.1997 twelve MLAs from  BSP  (respondents)  voted  in favour  of  the  motion  of  confidence  moved by Shri Kalyan Singh.  A violent pandemonium broke out inside the  House  in which  a  number of MLAs were assaulted by some other members and consequently  no  business  could  be  transacted.     On 24.10.1997  appellant  filed  a  petition  before the Speaker

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under Rule 7 of The  Members  of  Uttar  Pradesh  Legislative Assembly  (Disqualification  on  Grounds of Defection) Rules, 1987 which will hereinafter be referred to  for  convenience, as "Disqualification Rules" for a declaration that the twelve respondents  became  disqualified as per Paragraph 2(1)(b) of the Xth Schedule of the Constitution.  When respondents  took up  the  plea that they, along with some more MLAs, the total of which reached 23 in number, have formed themselves into  a new  political  party by name Janatantrik Bahujan Samaj Party (for short JTBSP).  Appellant thereupon moved  for  amendment of  the  petition  on  5.12.1997  seeking incorporation of an additional ground for disqualification which is envisaged  in Paragraph 2(1)(a)  of  the  Xth Schedule.  Additional written statement  was  filed  by  the  respondents  to  the  amended petition. As  the  names  of  all  the 23 MLAs who allegedly formed the split have not  been  furnished,  the  Speaker  directed  the respondents to  file  a  list of such names by 29.1.1998.  As they failed to give names on that day also the  Speaker  gave another date as a last chance and posted it to 9.2.1998.  But respondents  failed to furnish the names of such MLAs even by that extended time, and instead again they pleaded  for  more time.   On  25.2.1998  a list of 26 MLAs was furnished to the Speaker claiming that they were the MLAs who formed  a  split on 21.10.1997. The speaker  passed  the  impugned  order  holding  that  (1) respondents are not liable to be disqualified under Paragraph 2(1)(b)  of the Xth Schedule on the syllogism that the person who issued the direction on 20-10-1997 is not proved to be an authorised person.  (2)  Such  direction  was  superseded  by another  oral  direction  which  was  subsequently issued and hence on  disqualification  would  visit  on  the  ground  of non-compliance with  the  former  direction.  (3) At any rate the whip issued on 20-10-1997 was ineffective  since  it  was silent as to the consequences of its non-compliance.  (4) Nor are the respondents liable to be disqualified under Paragraph 2(1)(a)  of the Xth Schedule because they belong to a faction which came into being as sequel to a split which arose in the BSP on 21-10-1997 consisting of not less than  1/3rd  of  the total members of the Legislature Party of the BSP.      It  would  be advantageous to consider first whether the disqualification envisaged in  sub-clause  (a)  of  Paragraph 2(1)  of the Xth Schedule should have visited the respondents because it is admitted by  the  respondents  themselves  that they  ceased to be members of BSP from 21-10-1997 as they had formed a new political party (JTBSP). Such severance from BSP is sought to be protected from  disqualification  by  seeking shelter under the umbrella of Paragraph 3 of the Xth Schedule which is extracted below:         "3.  Disqualification on ground of defection  not  to         apply in  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 the split in         his original political 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- (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 authorised by it in that behalf         without obtaining the prior permission of such party,

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       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". Two conditions are sine qua  non  for  avoiding  the disqualification  when  any  member of the House voluntarily gives up membership of his original political  party.  First is  that  the member concerned should have made a claim that the  split  in  the  original  Political  Party  has  arisen resulting in the constitution of a group in its Legislature Party   representing  a faction thereof. Second is that such group should consist of not less than 1/3rd of  the  members of such Legislature Party. In  order  to  establish  that  the first condition has been fulfilled the first respondent (Shri Markandeya  Chand)  has made  a  statement in the House on 21-10-1997 that the split of BSP Legislature Party had arisen consisting  of  a  group which  represents  a  faction  of not less than 1/3rd of the members thereof.  It appears that the Speaker has  proceeded on  the assumption that a claim has been made as provided in the said Paragraph. Regarding the second condition the Speaker held that  "there was  a  split in the Bahujan Samaj Party on 21-10-1997 and a faction had arisen as a result of the split in the BSP and a group consisting of 26 BSP MLAs was constituted on  21-10-97 itself  representing  the  faction  which did arise and that group is known as Janatantrik BSP".        According  to  the respondents, the aforesaid finding being a finding of fact is not amenable to challenge  as  it was  rendered  by  the Speaker of the Assembly on whom alone the jurisdiction is conferred  to  determine  such  disputed fact. The scope of judicial scrutiny on matters pertaining to  the decision  of  a  Speaker passed under Paragraph 6 of the Xth Schedule has been elaborately considered by  a  Constitution Bench  in support of the plea that Xth Schedule is liable to be struck  down  as  violative  of  basic  features  of  the Constitution was    that:      "the   investiture   of   the determinative and adjudicative jurisdiction in  the  Speaker would,  by  itself,  vitiate  the provision on the ground of reasonable likelihood of bias and lack of  impartiality  and therefore   denies   the   imperative   of   an  independent adjudicatory machinery.  The Speaker is  elected  and  holds office  on  the  support  of  the  majority party and is not required to resign his membership  of  the  political  party after his election to the office of the Speaker".        Venkatachaliah,  J (as the learned Chief Justice then was) has delved into the importance of  the  office  of  the Speaker  and  found that the Speaker holds a high, important and  ceremonial  office,  he  is  the  very  embodiment   of propriety  and  impartiality  and  he  performs wide ranging functions including the performance of  important  functions of a judicial character, and observed thus:      "It  would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of  this jurisdiction  would  be  vitiated  for  violation of a basic feature  of  democracy.  It  is  inappropriate  to   express distrust  in  the high office of the Speaker, merely because some of the Speakers are alleged, or  even  found,  to  have discharged  their  functions  not  in keeping with the great traditions of that high office. The robes of the Speaker  do change and elevate the man inside."

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    Accordingly,    the    contention   that   vesting   of adjudicatory functions in  the  Speaker  would  vitiate  the provision  on the ground of likelihood of political bias was rejected. Paragraph  6 of the Xth Schedule renders the decision of the Speaker final.    The  Constitution  Bench  considered   its validity in  Kihoto  Hollohan  (supra).    In  the  majority judgment it was held that the finally clause in Paragraph  6 does  not  completely  exclude the jurisdiction of the court under  articles  136,  226  and  227  of  the  Constitution. Ultimately the Constitution Bench upheld the validity of the Xth Schedule  subject  to the aforesaid rider.  However, the Bench further held that the scope of  judicial  scrutiny  is limited  to ascertain whether the decision of the Speaker is vitiated by jurisdictional errors viz.   "infirmities  based on   violation   of   constitutional  mandate,  mala  fides, non-compliance   with   rules   of   natural   justice   and perversity." Shri  Kapil Sibal, learned senior counsel who argued for the appellant focussed on the contention that  the  decision  of the Speaker that on 21.10.1997 a split has arisen in the BSP comprising  of  more than 23 MLAs is vitiated by perversity. Of course learned counsel  also  contended  that  there  was violation of constitutional mandate, and non-compliance with rules of  natural justice.  But ultimately the stress of the attack was confined to the ground of perversity.   According to  the counsel no authority conferred with the jurisdiction would have come to such a conclusion on the  facts  of  this case.   In the above context it was submitted by the counsel that a split can be recognized by a Speaker only  if  it  is followed  up  by  the  steps  prescribed  in  Rule  3 of the Disqualification Rules, as per which the Leader of the split faction should have furnished to the Speaker with in  thirty days  from  the  date  of  its  formation of the faction the following particulars:  (a) a statement in writing in Form-I containing the names of the members and other particulars of the faction; (b) names and designations of  such  member  of the  faction  who  has been chosen its leader; (c) the names and designations of such members who  have  been  authorised for  the  purposed  of  the  Rules  to  correspond  with the Speaker; (d) a copy of the Constitution and Rules of the new legislature party and of the political party  to  which  its members are affiliated. "Legislature  Party" is defined in Paragraph 1(b) of the Xth Schedule.  It includes the group consisting of  all  members of  the House for the time being belonging to that political party formed in accordance with  Paragraph  3.    Hence  the faction  consisting  of  not  less than 1/3rd members of the parent legislature party which was constituted as  a  sequel to  the  split  arisen  therefrom  is  also  deemed  to be a legislature party.    The  leader  of  such   newly   formed legislature  party  is  also  obliged  to  comply  with  the requirements contained in Rule  3  of  the  Disqualification Rules.      According    to    thee    learned    senior   counsel, non-compliance with the Rules would lead to  the  inevitable consequence that respondents cannot be heard to contend that there  was a split in BSP as envisaged in Paragraph 3 of Xth Schedule. Dr.  L.M.  Singhvi, learned senior counsel  who  argued  for some  of  the respondents contended that non-compliance with the Rules would not  by  itself  establish  that  the  split pleaded by the respondents did not take place.  According to the  learned  counsel,  Rules  are  only procedural and they cannot get the status of of  constitutional  provisions  and

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cannot be  equated therewith.  He relied on the observations of a two Judge Bench of this Court in Ravi S Naik  Vs  Union of India (1994 Suppl(2) SCC 641) that Disqualification Rules are procedural in nature and any violation of the same would only  amount to an irregularity in procedure which is immune from judicial scrutiny.  Shri Ashok Desai and Shri RK  Jain, the  other  two  learrned senior counsel who also argued for some of the remaining respondents  supported  the  aforesaid contention.   As  against  the plea made by Shri Kapil Sibal that the observation in Ravi S.Naik needed  re-consideration all  the  other  senior counsel pointed that the two learned judges in Revi S.Naik have only adopted the reasoning of the Constitution Bench in Kihoto Hollohan  on  that  aspect  and hence it is not liable to be disturbed. Learned  judges who decided Ravi S.Naik were considering the contention that petitions filed before the Speaker  did  not fulfil  the  requirements  of Rule 6(5)(a)(b) and (6) of the Disqualification rules  inasmuch  as  those  petitions  were bereft  of facts on which petitioner therein was relying and also for not appending copies of the documents and  evidence in  those petitions. It was hence contended before the Bench that such petitions were liable  to  be  dismissed  on  that count  alone.  Learned  Judges, while dealing with the above contention have observed thus:         "The 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  Xth         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." In Kihoto Hollohan the  Constitution  Bench,  while  dealing with the deeming provision contained in Para 6(2) of the Xth Schedule,  made the observation that the immunity adumbrated therein is only for the irregularities  of  the  procedures. In  this  context  is  is  worthwhile  to  refer to the next observations made by the Bench in the succeeding portion  in Kihoto Hollohan:         "The   very   deeming  provision  implies  that  the         proceedings of disqualification are,  in  fact,  not         before  the  house; but only before the Speaker as a         specially designated authority. The  decision  under         Paragraph 6(1) is not the decision of the House, nor         is  it  subject  to  the  approval by the House. The         decision operates  independently  of  the  House.  A         deeming  provision  cannot by its creation transcend         its own power.  There  is,  therefore,  no  immunity         under Articles 122 and 212 from judicial scrutiny of         the  decision  of the Speaker or Chairman exercising         power under Paragraph 6(1) of the Tenth Schedule." We  will not say that rules of procedure are on par with the constitutional mandate incorporated in the Xth  Schedule  of the Constitution.   Nonetheless, the procedure prescribed in the Disqualification Rules are meant to be followed for  the purpose for  which  they  are  made.  It is by virtue of the authority   conferred   by    the    Xth    Schedule    that Disqualification  Rules are formulated "for giving effect to the provisions of this Schedule." What would  have  happened if  the  Rules  have  not  been  formulated  as  enjoined by Paragraph 8 of the Xth Schedule?  The provisions of the  Xth Schedule would  remain  ineffective.  So the Rules cannot be

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read in isolation from the provisions of the  Xth  Schedule, in stead  they  must be read as part of it.  Of course, mere violation of a Rule is not enough to constitute violation of the provisions  of  the  Xth  Schedule.    When  a   certain procedure  is required by the Rules to be adopted for giving effect  to  the  provisions   of   the   Constitution,   the non-adopted  of  the  procedure  would  very  much  help the authorities to decide whether there  was  violation  of  the constitutional provision envisaged in the Xth Schedule. Before  a  claim  is  made  by  a  member of the House under Paragraph 3 of the Xth Schedule a  split  in  the  political party should have arisen.  Such a split must have caused its reaction  in  the  Legislature  Party also by formation of a group consisting of not less than one third of  the  members of that  Legislature  party.    We have to bear in mind that clause (b) of Paragraph 3 mandates that "for the purposes of this paragraph" such factions shall  be  deemed  to  be  the original  political  party of the member concerned "from the time of such split." What is the  overt  act  through  which formation  of  such a group can be perceived by the Speaker? It is in this context that Rule 3  of  the  Disqualification Rules assumes   relevance   and   importance.    Unless  the particulars required in the rule are furnished how would the Speaker know, authoritatively, of the formation  of  such  a group?   Ordinarily  such  information  must be furnished as early as possible.  But there can be rare cases in which  it may  not be possible, due to situational reasons, to furnish the particular soon after the formation  of  such  a  group. But  the  30  days  time  provided  in the Rule is not to be understood  as  any  indication   to   dispense   with   the promptitude in  furnishing  those  particulars.  The time 30 days fixed in Rule 3 must be  treated  as  the  outer  limit within   which   the  Speaker  should  be  informed  of  the particulars required.  So the need for compliance with  Rule 3 is  not  a  bare formality.  Insistence on compliance with the Rule is, therefore, to  enable  the  Speaker  to  decide whether the protection envisaged in the 3rd Paragraph can be afforded to the members concerned.       We are of the opinion that a Speaker has  to  consider the  repercussions of non-compliance of a particular rule in the Disqualification Rules  to  ascertain  how  far  it  has affected the credibility of the case of a claimant who seeks protection under Paragraph 3 of the Xth Schedule.      The  Speaker  has  accepted the plea of the respondents that there was a split as envisaged in Paragraph  3  of  the Xth  Schedule. the said finding can be subjected to judicial scrutiny only in the  limited  sphere  indicated  in  Kihoto Hollohan  (supra) viz. whether "the infirmities are based on violation   of   constitutional   mandate,    mala    fides, non-compliance   with  the  rules  of  natural  justice  and perversity."  This is a case where appellant did not succeed in showing a case of mala fides or non-compliance  with  the rules of natural justice as for the conclusion arrived at by the  Speaker.  As  pointed out earlier the main endeavour of the learned counsel was to show  that  the  finding  of  the Speaker  is  vitiated  by  perversity  in the sense that the conclusion is so unreasonable that no  tribunal  would  have arrived at it on the given facts. It  is  suggested  on  behalf of the respondents that if the conclusion of the Speaker is based on some materials  it  is immune  from  judicial  interference  because  of  two broad restrictions.  First  is  the  extremely  limited  scope  of judicial  scrutiny which is permitted by law as indicated by the Constitution Bench in Kihoto Hollohan.   Second  is  the positional   height  of  the  Speaker  as  a  constitutional

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functionary upon  whom  the  jurisdiction  is  conferred  to determine the  disputes  under the Xth Schedule.  Shri Ashok Desai, learned senior  counsel  contended  for  the  extreme position   that  if  the  conclusion  reached  by  the  said functionary is a possible  conclusion  it  stands  insulated from   any   outside   interference  including  by  judicial exercise. The said extreme proposition may lead to the situation that, no matter, however illegal the order may be,  it  cannot  be touched if  its  author  is  the  Speaker.    I am unable to concede such an immunity to any  constitutional  functionary to  be  above law or to have unfettered jurisdiction to pass unreasonable orders with  immunity.    The  test  cannot  be whether  it  is  possible  for  the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that  it  is  possible. The  test  is  whether the conclusion or the finding made by the Speaker is so unreasonable or so unconscionable that  no tribunal should have arrived at it on the given materials. Parameters  for  scrutinising  what  is unreasonable are, of course, nebulous.  What appears to be reasonable to one  man may be  unreasonable  to  another  and  vice  versa.  It was perhaps that approach which made Lord Hailsham to  make  his quaint   comment  that  two  reasonable  persons  can  reach diametrically opposite conclusion on the same set  of  facts without  either  of  them  forfeiting  the  credential to be reasonable.  However, the test of perversity has now  bogged down to  this:    No  conclusion  can  be dubbed as perverse unless the unreasonableness is of such a dimension  that  no authority  vested  with  the jurisdiction would have come to such a  conclusion.    Even  the  oft   quoted   "Wednesbury principle of reasonableness" as propounded by Lord Greene MR (Picture House  vs.    Wednesbury  Corporation - 1947 (2 all England Report 680) has not changed the said approach. Shri Ashok Desai, learned Senior Counsel made  an  endeavour to  show  that  the  aforesaid  principle  is a check on the courts from apperceiving a decision reached by an  authority (vested with  power  to  decide)  as  unreasonable.  Learned Master of Rolls (Lord Greene) has observed thus:         "In the present case we  have  heard  a  great  deal         about  the meaning of the word "unreasonable." It is         true the discretion must  be  exercised  reasonably.         What  does  that  mean?  Lawyers  familiar  with the         phraseology  commonly  used  in  relation   to   the         exercise  of statutory discretion often use the word         "unreasonable" in a rather comprehensive  sense.  It         is  frequently  used as a general description of the         things that must not be done........      Similarly,         you  may  have  something so absurd that no sensible         person could ever  dream  that  it  lay  within  the         powers  of  authority............Theoretically it is         true to say - and in practice it may operate in some         cases - that, if a decision on a competent matter is         so unreasonable that no reasonable  authority  could         ever have come to it, then the courts can interfere.         That, I think, is right." No  departure  from the said principle is warranted, more so because the Wednesbury ratio has gained approval  of this  Court  in  a  number  of decisions (vide Sitaram Sugar Company Limited vs. Union of India - 1990 (3) SCC 223;  Tata Cellular  vs.  Union  of  India - 1994 (6) SCC 651; Union of India vs. Ganayutham - 1997 (7) SCC 463. The Speaker has, in the impugned order, adverted  to the following facts to support his conclusion:         (1)    In  the  affidavit files by Shri Vansh Narain

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       Patel (6th respondent) and others on 2.2.1998 it  is         mentioned  that  a split was formed on 21-10-1997 at         the lobby of the House when "not less than 1/3rd  of         the  total members of BSP MLAs discussed and decided         to separate from BSP under the  leadership  of  Shri         Markandeya  Chand  (1st  respondent).  The number of         such MLAs is mentioned in the affidavit as 23.         (2)     Appellant and her followers did not file any         reply to the said affidavits.         (3)     On 21-10-1997 Shri Vansh Narain  Patel  (6th         respondent) announced on the floor of the House that         more than 1/3rd MLAs of the BSP have come out of the         party.         (4)       Even  though  the  respondents  failed  to         mention the names of the 23 MLAs who formed  such  a         faction  in split of opportunities granted including         the  last  opportunities  granted  on 9/2/1998, they         disclosed the names of 26 MLAs of the BSP who formed         the split, in the affidavit filed on 25-2-1998.         (5)     the facts stated in the said affidavits have         not been controverted  "despite  opportunity  having         been given."         In   substance   the   crucial   circumstance  which persuaded the Speaker to rely  on  the  ipse  dixit  in  the affidavit  filed  by Markandeya Chand and Vansh Narain Patel on 25-2-1998 is that appellant has not controverted it. It must be remembered that it is an undisputed  fact that  at no time the number of BSP MLAs who voted for Kalyan Singh’s government had reached the number 23 (which  is  the minimum   number   necessary   to  constitute  the  required percentage for forming a split as envisaged  under  the  3rd Paragraph of   the  Xth  Schedule).    It  must  further  be remembered that the number of individual MLAs who  held  out that  they left BSP had never reached 23 either then or even now.  (Of course appellant had admitted that in addition  to 12 respondents who had defected on 21-10-1997 some more MLAs subsequently  crossed  the floor and their number was only 5 and thus the total number of defectors reached 17). It what the Speaker has pointed out is correct (that the  assertion  contained  in the affidavit filed by R-1 and R-6 on 25-2-1998 have not been controverted despite granting opportunity to do so) it  is  not  proper  to  question  the conclusion  arrived at by the speaker that there was a split as envisaged in the Third Paragraph of the Xth Schedule.  If that is the position this Court  will  not  probe  into  all other  criticisms  made  against  the  order  passed  by the Speaker.  But a scrutiny of the materials first  shows  that as  a  matter of fact no opportunity whatsoever was given to the appellant to  controvert  the  assertions  made  in  the affidavit of  25-2-1998.  The evisceration of the Speaker to the contrary is without any  foundation.    The  proceedings minuted  by  the  Speaker  himself on 25-2-1998 at 6.00 P.M. contained the following entries after referring to  the  two affidavits   being   filed   by  Shri  Narendra  Singh;  and Markandeya Chand:         "The same  was  objected  to  by  Shri  Umesh  Chand         learned  counsel  for  the  petitioner on the ground         that those affidavits have been filed after 9-2-1998         which was the last date to produce evidence. Whether         the above affidavits should be taken  on  record  or         not,  or  whether they should be read in evidence or         not, will be considered presently during argument." The second glaring feature which has winched to  the fore  during  judicial scrutiny is that the appellant had in fact strongly  controverted  the  stand  of  the  respondent

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regarding  formation  of  a  split. On the same day when 6th respondent filed the affidavit (i.e.  25.2.1998)  specifying thee  names  of  26  MLAs,  the  appellant  had,  on her own initiative,  filed  a  petition  at  7.40   P.M.   pointedly repudiating the above claim of the respondents. The relevant passage from the said petition is extracted below:         "Today  at  about  4  P.M. I have been informed that         Shri Narendra Singh submitted an additional list  of         9  MLAs  in  addition to the above referred (2+5=17)         MLAs before you, claiming that they were  also  with         him and that they have not returned to the BSP.... I         submit  that  the  above  referred  claims  of  Shri         Narendra  Singh  are  totally  false  and   baseless         excepting  the  above  referred  12 MLAs. Other MLAs         belong to the BSP and they  are  continuing  in  the         BSP." Appellant had produced affidavits of  9  MLAs  along with the  said  petition.    All  such  affidavits contained averments forcefully repudiating  the  claim  of  the  first respondent  that on 21-10-1997 he got the support of 23 MLAs of BSP. All those  affidavits  are  identically  worded  and hence the following passage from one alone need be extracted below: "That the dependent was  present  in  the  session  of  U.P. Legislative Assembly held on 21.10.1997 under the Leadership of Ms.    Mayawati  and he had to leave the House because of chaos/disorder in the House along with his Leader, otherwise he would have cast his vote against the Trust  Motion  moved by  Sri  kalyan  Singh  Ministry in accordance with the whip dated 20.10.1997 issued by the leader  of  said  Legislative party.         That the deponent has been continuously opposing the         statement   given   by   Sri  Markandey  Chandra  on         21.10.1997  on  the  floor  of  the  House  and  the         statement of said Sri Markandey Chandra in the House         that  he enjoys the support of 23 Members of Bahujan         Samaj  Party  in  the  U.P.  Legislature  is  wholly         incorrect." Now  the contention is that the said affidavits were procured in November 1997 and hence they cannot  be  answers to  the  affidavits  of  the 1st respondent dated 25.2.1998. Explanation of the appellant for  that  is  very  important. According  to the learned counsel for the appellant, she has been collecting affidavits  of  all  the  MLAs  who  loyally remained  in  the party since 1st respondent made a claim on 21.10.1997 that 23 MLAs have gone out of  her  party.    She could get affidavits only one by one from all those MLAs who remained  in  the party so that she could show them whenever the need arose.  Where was the opportunity for the appellant to produce the affidavits of 9 MLAs until 25.2.1998 when for the first time 1st respondent proclaimed the  names  of  267 MLAs who have defected on 21.10.1997?  But when we perceived the  promptitude  with  which  appellant controverted it and supported her statement with thee affidavits of  all  the  9 MLAs,  we  fell  that  it  is  very  unfortunate that she is accused of the charge that she  has  not  controverted  thee affidavits filed by the respondents on 25.2.1998. Thus   the   basis   of  Speaker’s  conclusion  i.e. appellant has not denied the assertion  of  the  respondents made in  the  affidavit dated 25.2.1998 is non-existent.  If so, the Speaker must necessarily  have  other  materials  to decide  that  the  number  of  deserters reached the crucial limit of 23.  Even on the day when 1st respondent  announced in  the  Assembly  (21.10.1997)  that  23 BSP MLAs under his leadership have separated from the parent party and  decided

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to  support Kalyan Singh’s Government the fact remained that only 12 MLAs (who are the respondents) voted  in  favour  of the Government.    The  other  MLAs  who are alleged to have joined the faction repudiated the allegation in unmistakable terms.  Thus when admittedly the  number  of  BSP  MLAs  who supported  Kalyan  Singh’s  Government had never reached the figure  23  at  any  time,  even  subsequently,   and   when respondents  could  never even mention the names of those 23 MLAs  at  any  time  in  spite  of  the   Speaker   granting opportunities  to  them  for that purpose including the last opportunity  on  9.2.1998,  it  is  a  perverse  conclusion, overlooking  the  aforesaid formidable circumstances that 23 MLAs had  split  from  the  BSP  on  21.10.1997.    We  have absolutely   no   doubt   that   no  authority  vested  with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made  available to him. The  danger  involved  in upholding such a conclusion of the Speaker merely relying on the ipse dixit  of  the  defectors can be illustrated thus:  From one Legislature Party (having a  strength  of  say one hundred members) two MLAs, A and B, defected and when they were confronted with the  consequence of  disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them  31 more MLAs of their party have also gone out of the Party and A and  B  mentioned their names also.  But all those 31 MLAs repudiated the allegations.  In  such  a  case  the  Speaker holds  that the two defectors have the protection of the 3rd Paragraph for the simple reason that the  Speaker  chose  to believe their  ipse  dixit.    Such a syllogism, if adopted, would  be  be  preposterous  and   revolting   to   judicial conscience  from  any  standard  of reasonableness and would toll  the  death  knell  of  the  Constitutional  philosophy enshrined in  the Xth Schedule.  The finding in the impugned order is  not  materially  different  from  the  afore-cited illustration. I,  therefore,  unhesitatingly hold that the finding of the Speaker that a split arose in the BSP  on  21.10.1997 forming  a  group  representing  a faction consisting of not less than 1/3rd of the members of the Legislature  party  of BSP is  vitiated by perversity.  The corollary of it is that the 12 respondents who have defected from  the  BSP  on  the said  date  cannot  escape  from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule.      In  the light of our above finding it is unnecessary to consider the next question relating  to  sub-clause  (b)  of Paragraph  2(1)  of  the Xth schedule because such a venture would only be of academic utility now. Learned  senior  counsel for the respondents made an alternative contention that in the event  this  court  holds that  the finding of the Speaker is perverse the next course to be adopted is to remit the matter to the Speaker for  his final decision.    Learned  counsel  cited some decisions of this Court which held the proposition that  it  is  not  the function  of  courts  of  law to substitute their wisdom and decision for that of the authority  to  whose  judgment  the matter in   question   is  entrusted  by  law.    [The  Vice Chancellor, Utkal University vs.   S.K.    Ghosh  (1954  SCR 883), Mansukh  Lal  Vithaidas  Chauhan vs.  State of Gujarat {1997 (7) SCC 622]. Learned counsel then invited our  attention  to  the following  passage from Fraser’s speech in Re Amin {1983 (2) All England Reports 864}.         "Judicial  review  is  entirely  different  from  an         ordinary appeal. It is made effective by  the  court

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       quashing   the   administrative   decision   without         substituting  its  own  decision,  and  is   to   be         contrasted   with  an  appeal  where  the  appellate         tribunal substitutes its own decision on the  merits         for that of the administrative officer." The above passage has been quoted with approval by a three Judge Bench of this Court in Tata Celluiar vs Union of India [1994 (6) SCC  651]. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision  it  is  necessary  that after  exercising  judicial scrutiny the matter must go back to such authority for fresh decision.  But  in  the  present case the  situation  is  different.   A remit to the Speaker will not serve  any  additional  purpose  because  there  is nothing further  for  him  to  decide.   As the respondents, having given up their membership from the  parent  political party  voluntarily,  have  sought to insulate such severance with the cover provided in Paragraph 3 of the  Xth  Schedule the  only issue to be decided is whether the respondents are entitled to such protection.  When this Court found that the aforesaid protection is not available to them under  law  in substitution  of the contra finding made by the speaker, its inevitable sequetor is that all the twelve respondents stand disqualified under Paragraph 2(1) of the Xth Schedule of the Constitution. The impugned order would stand thus altered. I may point out, in this context, that the action of the Speaker, in allowing  the  12  respondents  to  register their  votes  in  a  "composite poll" held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh  and  Sri  Jagdambika Pal  -  a  rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before  this  Court  in  special  Leave  Petition (Civil) No.4495 of 1998.  This Court then noted in the Order dated  27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against  196  MLAs  (who  supported  Sri Jagdambika  Pal)  the  votes  of  12  respondents  were also counted.  However, the Court did not in that case pursue the said criticism made  against  the  Speaker  mainly  for  the following reasoning:         "Even  when those 12 members are taken to have voted         in favour of Sri  Kalyan  Singh,  their  votes  when         substracted from those polled still leaves him to be         the    one    having    majority   in   the   House.         Correspondingly, those 12 votes do  not  go  to  Sri         Jagdambika Pal who would still be in minority." Presumably  on  the  above  premise it was submitted before us that disqualification of 12 respondents would  not affect  the  government  of  Sri  Kalyan  Singh  which  even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended  to disturb  the government of Sri Kalyan Singh in any manner so long as he commands majority in  the  Legislative  Assembly. But  that  aspect cannot detract us from exercising power of judicial review of the impugned verdict.      In the result this appeal is  allowed  by  declaring that the twelve respondents stand disqualified to be members of  the U.P. Legislative Assembly under Paragraph 2(1)(a) of the Xth Schedule of the Constitution of India. New Delhi. October 9, 1998.