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CASE NO.: Appeal (civil)  765 of 2007

PETITIONER: SRI RAJENDRA SINGH RANA & ORS

RESPONDENT: SWAMI PRASAD MAURYA & ORS

DATE OF JUDGMENT: 14/02/2007

BENCH: K.G. BALAKRISHNAN H.K. SEMA DR. AR. LAKSHMANAN, P.K. BALASUBRAMANYAN & D.K. JAIN

JUDGMENT: J U D G M E N T  (Arising out of SLP(C) No.4664 of 2006) [WITH S.L.P.(C) No. 4669 of 2006, S.L.P.(C) No.4671 of 2006,  S.L.P.(C) No.4677 of 2006, S.L.P.(C) No. 6323 of 2006,  S.L.P.(C) No. 10497 of 2006 and S.L.P.(C) No. 10498 of 2006]

P.K. BALASUBRAMANYAN, J.

1.              Leave granted. 2.              The elections for the constitution of the 14th  Legislative Assembly of the State of Uttar Pradesh were held in  February 2002.  Since, none of the political parties secured  the requisite majority, a coalition Government was formed,  headed by Ms. Mayawati, leader of the Bahujan Samaj Party  (hereinafter referred to as, ’B.S.P.’).  B.S.P was admittedly a  recognised national party.  The ministry was formed in May,  2002.  On 25.8.2003, the cabinet is said to have taken a  unanimous decision for recommending the dissolution of the  Assembly.  Based on it, on 26.8.2003, Ms. Mayawati  submitted the resignation of her cabinet.  Apparently, after the  cabinet decision to recommend the dissolution of the Assembly  and before Ms. Mayawati cabinet actually resigned, the leader  of the Samajwadi Party staked his claim before the Governor  for forming a Government.  On 27.8.2003, 13 Members of the  Legislative Assembly (hereinafter referred to as, ’M.L.As.’)  elected to the Assembly on tickets of B.S.P., met the Governor  and requested him to invite the leader of the Samajwadi Party  to form the Government.   Originally, 8 M.L.As. had met the  Governor and 5 others joined them later in the day, making up  the 13.  

3.              The Governor did not accept the recommendation of  Mayawati cabinet for dissolution of the Assembly.  On  29.8.2003, the Governor invited the leader of the Samajwadi  Party, Mr. Mulayam Singh Yadav to form the Government and  gave him a time of two weeks to prove his majority in the  Assembly.  On 4.9.2003, Mr. Swami Prasad Maurya, leader of  the Legislature B.S.P filed a petition before the Speaker in  terms of Article 191 read with the Tenth Schedule to the  Constitution of India, praying that the 13 B.S.P. M.L.As. who  had proclaimed support to Mulayam Singh Yadav before the  Governor on 27.8.2003, be disqualified in terms of paragraph  2 of the Tenth Schedule to the Constitution on the basis that  they had voluntarily given up their membership of B.S.P., their  original political party.  On 05.09.2003, a caveat was also filed

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on behalf of the B.S.P. before the Speaker of the Legislative  Assembly requesting the Speaker to hear the representative of  B.S.P. in case any claim of split is made by the members who  had left the Party.  On 06.09.2003, a request was made by 37  M.L.As., said to be on behalf of 40 M.L.As. elected on B.S.P.  tickets, requesting the Speaker to recognise a split in B.S.P. on  the basis that one third of the Members of the B.S.P.  legislature party  consisting of 109 legislators, had in a body  separated from the Party pursuant to a meeting held in the  M.L.A.’s hostel, Darulshafa, Lucknow on 26.8.2003.  The  Speaker took up the said application for recognition of a split,  the same evening.  He verified that the 37 Members who had  signed the application presented to him had in fact signed it  since they were physically present before him.  Overruling the  objections of Maurya, the leader of the legislature B.S.P., the  Speaker passed an order accepting the split in B.S.P. on the  arithmetic that 37 out of 109 comprises one third of the  Members of the legislature Party.  This group came to be  known as the Lok Tantrik Bahujan Dal.  But, the said Dal was  short lived.  For, the Speaker, a little later, on 6.9.2003 itself,  accepted that the said Dal had merged with the Samajwadi  Party.  It is relevant to note that in the order dated 6.9.2003,  the Speaker did not decide the application made by B.S.P.  seeking disqualification of 13 of its M.L.As. who were part of  the 37 that appeared before the Speaker and postponed the  decision on that application.  It appears that on 8.9.2003,  three more M.L.As. appeared before the Speaker stating that  they supported the 37 M.L.As. who had appeared before him  on 6.9.2003 and were part of that group. The Speaker  accepted their claim as well.  

4.              On 29.9.2003, Writ Petition No. 5085 of 2003 was  filed in the High Court of Judicature at Allahabad before the  Lucknow Bench challenging the said order of the Speaker.  On  1.10.2003, it came up before a Division Bench of the High  Court, and it is seen from the Order Sheet maintained by the  High Court that the Writ Petition was directed to be listed on  8.10.2003 for further hearing.  It was adjourned to 13.10.2003  and then again to 22.10.2003 and to 29.10.2003 and further  to 5.11.2003.  It is recorded in the Order Sheet that on  5.11.2003, learned counsel for the writ petitioner was heard in  detail.  No order was passed, but the matter was adjourned to  the next day at the request of counsel, who was apparently  representing the Advocate General of the State.  From  6.11.2003, the matter was adjourned to 10.11.2003 and on  the request of the learned Advocate General, it was directed to  be listed on 14.11.2003.  The same day, the Speaker before  whom the petition filed by the writ petitioner Maurya seeking  disqualification of 13 of the members of the B.S.P. was  pending, after noticing what he had done earlier on 6.9.2003  and 8.9.2003, passed an order adjourning the petition seeking  disqualification, on the ground that it would be in the interests  of justice to await the decision of the High Court in the  pending Writ Petition since the decision therein on some of the  issues, would be relevant for his consideration.  It was  therefore ordered that the petition for disqualification may be  placed before him for disposal and necessary action after the  High Court had decided the Writ Petition.

5.              In the High Court, the Writ Petition had a  chequered career.  On 14.12.2003, when it came up, it was  directed to be listed the next week before the appropriate  Bench.  On 16.4.2004, it was directed to be put up on

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22.4.2004.  On 22.4.2004, it was dismissed for default with an  observation that neither any counsel on behalf of the writ  petitioner nor on behalf of the Speaker was present.  It may be  noted that on 5.11.2003, the High Court had recorded that it  had heard counsel for the writ petitioner in full and the  adjournment for further hearing was at the behest of the  Advocate General.  Even then, on 22.4.2004, the High Court  chose to dismiss the Writ Petition for default on the ground  that counsel on both sides were not present.  An application  for restoration was filed on 27.4.2004 and this application was  kept pending for about 8 months until on 20.12.2004, an  order was passed recalling the order dated 22.4.2004  dismissing the Writ Petition for default and restoring it to its  original number with a further direction to list the Writ  Petition before the appropriate Bench on 4.1.2005.  On  4.1.2005, the Writ Petition was adjourned at the request of the  Advocate General to the next day.  On 5.1.2005, it was noticed  by the Bench that the matter appeared to have been heard in  detail at the admission stage and the Writ Petition had neither  been admitted nor any notice ordered to the respondents and  counsel for the writ petitioner was again heard on the question  of admission and the application for interim relief he had filed  and it was recorded that he had concluded his arguments with  the further direction to put up the Writ Petition the next day.   On 6.1.2005, it was recorded that counsel for the writ  petitioner did not press for interim relief at that stage and  hence the application for interim relief was being rejected.  

6.              On 6.1.2005, the Writ Petition was admitted after  hearing counsel for the writ petitioner and some counsel who  appeared for the respondents.  Notices were ordered to be  issued to the opposite parties, the group of M.L.As. who had  moved the Speaker for recognition of a split.  After some  further postings, on 18.2.2005, orders were passed regarding  service of notice and the Writ Petition was directed to be  posted for hearing on 10.3.2005. On 10.3.2005, finding that  there was some attempt at evasion of notices, the court  ordered substituted service of notices and directed the listing  of the Writ Petition on 11.4.2005.  On 11.4.2005, service of  notice was declared sufficient and the matter was directed to  be posted on 2.5.2005 for hearing.  After a number of  adjournments mainly at the instance of the respondents in the  Writ Petition, arguments were commenced.  On 12.5.2005,  counsel for the writ petitioner concluded his arguments and  the case was further adjourned to 25.5.2005 for further  hearing after taking certain counter affidavits on record.   Ultimately, the argument of one of the counsel for the  respondents was started and the matter was adjourned to  6.7.2005 for completion of his arguments and for arguments  by other counsel for the respondents in the Writ Petition.

7.              Meanwhile, on 7.9.2005, the Speaker passed an  order rejecting the petition filed by Maurya for disqualification  of 13 M.L.As. of B.S.P.  It may be noted that the Speaker had  earlier adjourned that application for being taken up after the  Writ Petition was decided.  Meanwhile, the arguments went on  in the High Court and the Writ Petition was directed to be put  up on 17.8.2005 for further arguments.  The matter was  adjourned to the next day and again to subsequent dates.  

8.              On 8.9.2005, an application was made on behalf of  the respondents seeking dismissal of the Writ Petition in view

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of the order of the Speaker dated 7.9.2005 dismissing the  application seeking disqualification of 13 M.L.As. filed by the  writ petitioner.  The said application was dismissed the same  day.  On 9.9.2005, arguments were heard and the matter was  adjourned for further hearing.

9.              On 21.10.2005, an application was made on behalf  of the writ petitioner praying for an amendment of the Writ  Petition.  It was directed to be listed granting time to the  respondents in the Writ Petition to file objections.  On  22.11.2005, the Order Sheet records an order by one of the  judges as follows:

"The matter was listed today only for  consideration and disposal of the amendment  application together with application for  further hearing and by 4.00 PM arguments  with respect to amendment application could  be concluded.  As indicated in the order  passed on the application brother M.A. Khan  (J) took out a typed and signed ’order’ rejecting  the application for amendment. Like previous  order, brother Hon’ble M.A. Khan again took  out a duly typed and signed judgment/ his  opinion and directed the bench Secretary to  place the same on record as his "judgment" in  the main writ petition.  The draft of the said  judgment was also not circulated to me nor  was I ever been consulted by him.  It is further  pointed out that brother Hon’ble M.A. Khan (J)  did not indicate at any time that he had  already written out the judgment.  Further at  no point of time, I had indicated to brother  M.A. Khan (J) that the judgment in the writ  petition may be prepared by him.  It goes  without saying that neither the orders passed  on the application nor the so called judgment  on the merits of the writ petition have been  dictated in the open court by brother Hon’ble  M.A. Khan(J)."

10.             Apparently, in view of these happenings, the learned  Chief Justice constituted a Full Bench for hearing the Writ  Petition.  The amendment prayed for was allowed and the Writ  Petition ultimately heard finally and disposed of by the  judgment under appeal.   As per the judgment under appeal,  the Writ Petition was dismissed by the learned Chief Justice  while the other two learned Judges quashed the orders of the  Speaker and directed the Speaker to reconsider the matter  with particular reference to the petition for disqualification of  13 M.L.As. filed by the writ petitioner and pass appropriate  orders.  Feeling aggrieved, these appeals have been filed.  

11.             Whatever may be our ultimate decision on the  merits of the case, we must express our unhappiness at the  tardy manner in which a matter of some consequence and  constitutional propriety was dealt with by the High Court.   More promptitude was expected of that court and it should  have ensured that the unfortunates happenings (from the  point of view of just and due administration of justice) were  avoided.  Though we are normally reluctant to comment on the  happenings in the High Court, we are constrained to make the  above observations to emphasis the need to ensure that no  room is given for criticism of the manner of working of the

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institution.   

12.             The respondents in the Writ Petition, the M.L.As.  constituting 37 B.S.P. members who left the party, are the  appellants in all the appeals except the appeal arising out of  Special Leave Petition (Civil) No. 6323 of 2006 filed by the writ  petitioner \026 Maurya.  Whereas, the respondents in the Writ  Petition challenge the decision of the majority of the Bench  remitting the matter to the Speaker, the writ petitioner, in his  appeal challenges the order of remand made by the majority  on a plea that on the pleadings and the materials available,  the High Court ought to have straightaway allowed the petition  filed by the writ petitioner for disqualification of the 13 M.L.As.    According to him, a remand was unnecessary and considering  the circumstances, a final order ought to have been passed by  the High Court.

13.             Article 191 of the Constitution of India deals with  the disqualification for membership of legislative assemblies  just like Article 102 deals with disqualification for membership  to the Houses of Parliament.  Article 102 and Article 191 came  to be amended by the Constitution (Fifty-second Amendment)  Act, 1985 with effect from 1.3.1985 providing that a person  shall be disqualified for being a member of either Houses of  Parliament or of Legislative Assembly or Legislative Council of  a State if he is so disqualified under the Tenth Schedule to the  Constitution of India.  The Tenth Schedule was also added  containing provisions as to disqualification on ground of  defection.  The constitutional validity of this amendment was  challenged before this Court in KIHOTO HOLLOHAN Vs.  ZACHILLHU & ORS. [(1992) 1 S.C.R. 686].  This Court upheld  the validity of the amendment subject to the finding that  paragraph 7 of the Tenth Schedule to the Constitution of India  required ratification in terms of Article 368(2) of the  Constitution of India and it had not come into force, so that  there was no need to pronounce on the validity of paragraph 7  to the extent it precluded a judicial review of the decision of  the Speaker.  But it held that judicial review could not be kept  out, though such review might not be of a wide nature.  We  are proceeding to examine the relevant aspects in the light of  that decision.   

14.              The application by writ petitioner - Maurya to the  Speaker, in the present case, was made under paragraph 2 of  the Tenth Schedule to the Constitution on the ground that the  13 Members who met the Governor on 27.8.2003 had  voluntarily given up their membership of B.S.P., their original  political party as defined in the Tenth Schedule.  The claim on  behalf of the M.L.As. sought to be disqualified and those who  claimed to have gone out with them from B.S.P. is that the  disqualification at the relevant time is subject to the provisions  of paragraphs 3, 4 and 5 of the Tenth Schedule and since  there has been a split in B.S.P in terms of paragraph 3 of the  Tenth Schedule and a subsequent merger of the 40 M.L.As.  with the Samajwadi Party in terms of paragraph 4 of the Tenth  Schedule, they could not be held to be disqualified on the  ground of defection in terms of paragraph 2(1)(a) of the Tenth  Schedule.  The Speaker, as noticed, did not pass any order on  the application for disqualification of 13 M.L.As. made by  Maurya, the leader of the B.S.P. Legislature Party in terms of  paragraph 2 of the Tenth Schedule but proceeded to pass an  order on the petition filed by 37 M.L.As. before him, claiming  that there has been a split in B.S.P. and they constituted one

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third of the Legislature Party which had 109 members.  When  he passed the order on the claim of the M.L.As. who had left  B.S.P.,  the then Speaker postponed the decision on the  petition for disqualification filed by Maurya, later adjourned it  to await the decision in the Writ Petition, but still later, the  successor Speaker went back on that order and proceeded to  dismiss it after entertaining an alleged preliminary objection  even while the Writ Petition was still pending and it was being  argued, on the ground that he had already recognised the  split.

15.             It was thereafter that the writ petitioner sought for  an amendment of the Writ Petition which was subsequently  allowed.   

16.             We will now revert to the action that triggered the  controversy.  Eight of the M.L.As. of B.S.P. followed by five  other members of B.S.P. handed over identically worded letters  to the Governor on 27.8.2003.  A running translation of the  letters is as under:

"We under mentioned M.L.As. whose  signatures are marked below humbly request  you that Shri Mulayam Singh Yadav Ji be  invited to form Government because the public  of Uttar Pradesh neither want election nor  want President Rule."

These members were the members who belonged to B.S.P. and  they were requesting the Governor to invite the leader of the  opposition to form the Government.  It is based on this action,  that Maurya, the leader of the Legislature B.S.P., had filed the  petition before the Speaker seeking disqualification of these 13  members on the ground that they had voluntarily left B.S.P.,  recognised by the Election Commission as a national party.  It  was while this proceeding was pending that on 6.9.2003, an  application for recognition of a split was moved by the 37  M.L.As. before the Speaker.  Since the leader of B.S.P. had  filed a caveat before the Speaker, the Speaker chose to hear  the caveator while passing the order.    Considering the nature  of the controversy involved, it appears to be proper to quote  the said representation or application made by the 37 M.L.As.  before the Speaker.  The running translation of the same  reads:

"We, the following Members of the Legislative  Assembly, are notified as Members belonging  to Bahujan Samaj Party.   There is  dissatisfaction prevalent among the members  of BSP on account of dictatorial approach,  wrong policies and misbehaviour towards the  Members as practiced by the BSP Leader Km.  Mayawati.  Being aggrieved on account of the  aforesaid reasons, Members, office bearers and  workers of the Bahujan Samaj Party held a  meeting in Darulsafa on 26.08.2003.  All  present unanimously stated that Km.  Mayawati is occupied with fulfilment of her  personal interests alone at the cost of interests  of the State of U.P. and society.  

Hence, it was unanimously resolved that  the Bahujan Samaj Party be split up and a

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new faction in the name of Loktantrik Bahujan  Dal be constituted under the Leadership of  Shri Rajendra Singh Rana, Member Legislative  Assembly.  We, the undersigned Members of  Legislative Assembly have constituted a  separate group which represents the new  faction arising out of the split.  Our number is  more than one third of the total number of  Members of the erstwhile Bahujan Samaj Party  of the Legislative Assembly.

It is, therefore, requested that the  aforesaid Loktantrik Bahujan Dal be  recognised as a separate group within the  Legislative Assembly and a separate  arrangement for their seating inside the  Assembly be made."

It was signed by 37 M.L.As.

17.             It is on this application that the Speaker passed an  order the same evening and it is that order that is the subject  matter of challenge in the Writ Petition filed before the High  Court.  The order of the Speaker records that as per the  contents of the application, a meeting of members, office  bearers and Members of Legislative Assembly belonging to  B.S.P. was held on 26.8.2003 in the Darulshafa and in this  meeting, it was unanimously resolved that a new faction in the  name of Loktantrik Bahujan Dal under the leadership of  Rajendra Singh Rana be constituted.  The Speaker proceeded  to reason that the number of members who have constituted  the group are seen to be 37 out of 109 and that would  constitute one-third of the total number of Legislators  belonging to B.S.P.  In view of the objections raised by Maurya,  who had filed the caveat before him, the Speaker verified  whether 37 members had signed the representation or  application.  Since they were present before him and were  identified, he proceeded on the footing that 37 M.L.As. of  B.S.P. had appeared before him with the claim.  The Speaker  noticed the contention of the caveator that the burden of  proving any split in the original political party lay on the 37  M.L.As. and that unless they establish a split in the original  political party, they could not resort to paragraph 3 of the  Tenth Schedule to the Constitution and claim that there has  been a split in the political Party and consequently they have  not incurred disqualification under paragraph 2 of the Tenth  Schedule.   Further, overruling the contention of the caveator  that the decision relating to the split could be taken only by  the Election Commission and overruling the contention that  the original 13 members who had left the Party or voluntarily  given up their membership of the Party did not constitute one- third of the total number of the Legislators belonging to B.S.P.  and hence they are disqualified, the Speaker proceeded to say  that the first condition to satisfy the requirement of paragraph  3 of the Tenth Schedule was only that the members must have  made a claim that the original legislature Party had split and  they should show that  as a consequence, the legislature Party  has also split and that the split group had one-third of the  members of the legislature Party.  Therefore, the Speaker    taking note of the one-third legislators before him proceeded  on the basis that it would be sufficient if a claim is made of a  split in the original political Party. The Speaker formulated the  position thus: "Under para 3 following conditions have to be

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fulfilled:-

1.      The making of a claim by any  Member of a House that he and  some other members of his  legislature party have constituted a  group representing a faction which  has arisen as a consequence of split  in his original political party.

2.      The newly constituted group has at  least one third of the total number  of members of such legislature  party.  

               If in a case the aforesaid two  conditions are fulfilled, the person making  such a claim and the other members will not  be disqualified from the membership of the  Legislative Assembly on the grounds  mentioned in para 2 of the 10th Schedule."

The Speaker also overruled the argument that only 13 M.L.As.  had originally quit the original political party and they should  be disqualified and the others subsequently joining them  would not improve the position. The Speaker proceeded to  observe that he had to decide the question of disqualification  of the 13 M.L.As. raised by Maurya functioning as a Tribunal  and he would be taking a decision thereon at the appropriate  time.  It was thus that the claim of 37 members of a split, was  recognised by the Speaker. The Speaker thus did not decide  whether there was a split in the original political party, even  prima facie.

18.             The same day, the Speaker also entertained another  application from the 37 M.L.As. and ordered that he was  recognising the merger of the Lok Tantrik Bahujan Dal in the  Samajwadi Party.  

19.             The Speaker had relied on an observation in Ravi S.  Naik Vs. Union of India [(1994) 1 S.C.R. 754] to justify the  acceptance of the position adopted by the 37 M.L.As. for  recognition of a split that it was enough if they made a claim of  split in the original political party.  In paragraph 36 of that  judgment, after setting down the two requirements as :

(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.  

This Court observed: "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."

But the Speaker failed to notice the following sentence in  paragraph 38 of the same judgment wherein it was stated: "As to whether there was a split or not has to

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be determined by the Speaker on the basis of  the material placed before him."  

Thus, there was no finding by the Speaker that there was a  split in the original political party, a condition for application  of paragraph 3 of the Tenth Schedule.

20.             Now we may notice the position adopted by the High  Court in the judgment under Appeal while dealing with the  Writ Petition filed by Maurya challenging the order of the  Speaker.  The learned Chief Justice took the view that the  Speaker was justified in finding a split on the basis of a claim  of split in the original political party and one-third members of  the legislature party separating by taking into account all  events upto the time of his taking a decision on the question of  split.  The learned Chief Justice held that the snowballing  effect of a split could be taken note of and that the Speaker  had not committed any illegality in not considering and  deciding the petition filed by Maurya seeking disqualification  of 13 M.L.As. in the first instance and in keeping it pending.   He thus upheld the decision of the Speaker.  But the other two  learned judges, though they gave separate reasons, basically  took the view that the Speaker was in error in not deciding the  application seeking disqualification of the 13 members first  and in proceeding to decide the application for recognition of a  split made by the 37 legislators before him.  Since the  proceeding arose out of a petition seeking a disqualification in  terms of paragraph 2 of the Tenth Schedule to the  Constitution, in terms of paragraph 6 of the Tenth Schedule, a  decision on the claim for disqualification could not be kept by,  even while recognising a split.  They therefore quashed the  order of the Speaker and directed the Speaker to reconsider  the question of defection raised by the writ petitioner \026  Maurya, in the light of the stand adopted by some of the  M.L.As. before the Speaker that there has been a split in terms  of paragraph 3 of the Tenth Schedule and so they have not  incurred the disqualification in terms of paragraph 2 of the  Tenth Schedule.  This majority view and the interference with  the order of the Speaker is challenged by the various  respondents in the Writ Petition forming the group of 37.  The  writ petitioner himself has challenged that part of the order  which purports to remand the proceeding to the Speaker by  taking up the position that on the materials, the High Court  ought to have straightaway held that the defence under  paragraph 3 of the Tenth Schedule to the Constitution has not  been made out by the 37 members of B.S.P. and that the 13 of  them in the first instance and the balance 24 in the second  instance stood disqualified in terms of paragraph 2(1)(a) of the  Tenth Schedule to the Constitution.   

21.             Elaborate arguments have been raised before us on  the interpretation of the Tenth Schedule, the content of the  various paragraphs and on the facts of the present case.   Based on the arguments it is first necessary to deal with the  scope and content of the Tenth Schedule in the light of the  object with which it was enacted.

22.             The Constitution (Fifty-Second Amendment) Act,  1985 amended Articles 102 and 191 of the Constitution by  introducing sub-articles to them and by appending the Tenth  Schedule introducing the provisions as to disqualification on  the ground of defection.   They were introduced to meet the  threat-posed to democracy by defection.  A ground of

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disqualification from the membership of the Parliament or of  the Assembly on the ground of defection was introduced.  The  constitutional validity of the amendment and the inclusion of  the Tenth Schedule was upheld by this Court in Kihoto  Hollohan (supra) except as regards paragraph 7 thereof,  which was held to require ratification in terms of Article 368(2)  of the Constitution.  It is not in dispute that paragraph 7 of  the Tenth Schedule is not operative in the light of that  decision.  The constitution Bench held that the right to decide  has been conferred on a high dignitary, namely, the Speaker of  the Parliament or the Assembly and the conferment of such a  power was not anathema to the constitutional scheme.   Similarly, the limited protection given to the proceedings  before the Speaker in terms of paragraph 6 of the Tenth  Schedule to the Constitution was also justified even though  the said protection did not preclude a judicial review of the  decision of the Speaker.  But that judicial review was not a  broad one in the light of the finality attached to the decision of  the Speaker under paragraph 6(1) of the Tenth Schedule and  the judicial review was available on grounds like gross  violation of natural justice, perversity, bias and such like  defects.  It was following this that the Ravi S. Naik (supra)  decision was rendered by two of the judges who themselves  constituted the majority in Kihoto Hollohan (supra) and the  observations above referred to but which were explained  subsequently, were made.  Suffice it to say that the decision of  the Speaker rendered on 6.9.2003 was not immune from  challenge before the High Court under Articles 226 and 227 of  the Constitution of India.  

23.             Learned counsel for the writ petitioner raised an  interesting argument.  He submitted that the Speaker in terms  of paragraph 6 of the Tenth Schedule was called upon to  decide the question of disqualification and only to a decision  by him on such a question, that the qualified finality in terms  of paragraph 6(1) got attached and not to a decision  independently taken, purporting to recognise a split.  He  pointed out that in this case, the Speaker had not decided the  petition for disqualification filed against the 13 M.L.As., and  the Speaker had only proceeded to decide the application  made by 37 members subsequently for recognising them as a  separate group on the ground that they had split from the  original B.S.P. in terms of paragraph 3 of the Tenth Schedule.   He submitted that no such separate decision was  contemplated in a proceeding under the Tenth Schedule since  the claim of split was only in the nature of a defence to a claim  for disqualification on the ground of defection and it was only  while deciding the question of defection that the Speaker could  adjudicate on the question whether a claim of split has been  established.   When an independent decision is purported to  be taken by the Speaker on the question of split alone, the  same was a decision outside the Tenth Schedule to the  Constitution and consequently, the decision of the Speaker  was open to challenge before the High Court just like the  decision of any other authority within the accepted parameters  of Articles 226 and 227 of the Constitution.  In other words,  according to him, the qualified finality conferred by paragraph  6(1) of the Tenth Schedule was not available to the order of the  Speaker in this case.   

24.             On behalf of the 37 M.L.As., it is contended that it  is not correct to describe paragraphs 3 and 4 of the Tenth  Schedule merely as defences to paragraph 2 and the allegation

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of defection, that paragraphs 3 and 4 confer independent  power on the speaker to decide a claim made under those  paragraphs.  It is submitted that reliance placed on paragraph  6 and the contention that a question of disqualification on the  ground of defection must arise, before the Speaker could  decide as a defence or answer, the claim of split or the claim of  merger was not justified.  Whatever be the decisions that were  taken by the Speaker in terms of paragraph 3, paragraph 4 or  paragraph 2 of the Tenth Schedule, enjoyed the qualified  immunity as provided in paragraph 6 of the Tenth Schedule.

25.             In the context of the introduction of sub-Article (2)  of Article 102 and Article 191 of the Constitution, a proceeding  under the Tenth Schedule to the Constitution is one to decide  whether a Member has become disqualified to hold his  position as a Member of the Parliament or of the Assembly on  the ground of defection.  The Tenth Schedule cannot be read  or construed independent of Articles 102 and 191 of the  Constitution and the object of those Articles.  A defection is  added as a disqualification and the Tenth Schedule contains  the provisions as to disqualification on the ground of  defection.  A proceeding under the Tenth Schedule gets started  before the Speaker only on a complaint being made that  certain persons belonging to a political party had incurred  disqualification on the ground of defection.  To meet the claim  so raised, the Members of the Parliament or Assembly against  whom the proceedings are initiated have the right to show that  there has been a split in the original political party and they  form one-third of the Members of the legislature of that party,  or that the party has merged with another political party and  hence paragraph 2 is not attracted.  On the scheme of Articles  102 and 191 and the Tenth Schedule, the determination of the  question of split or merger cannot be divorced from the motion  before the Speaker seeking a disqualification of a member or  members concerned.  It is therefore not possible to accede to  the argument that under the Tenth Schedule to the  Constitution, the Speaker has an independent power to decide  that there has been a split or merger of a political party as  contemplated by paragraphs 3 and 4 of the Tenth Schedule to  the Constitution.  The power to recognise a separate group in  Parliament or Assembly may rest with the Speaker on the  basis of the Rules of Business of the House.  But that is  different from saying that the power is available to him under  the Tenth Schedule to the Constitution independent of a claim  being determined by him that a member or a number of  members had incurred disqualification by defection.  To that  extent, the decision of the Speaker in the case on hand cannot  be considered to be an order in terms of the Tenth Schedule to  the Constitution.  The Speaker has failed to decide the  question, he was called upon to decide, by postponing a  decision thereon.  There is therefore some merit in the  contention of the learned counsel for the B.S.P. that the order  of the Speaker may not enjoy the full immunity in terms of  paragraph 6(1) of the Tenth Schedule to the Constitution and  that even if it did, the power of judicial review recognised in  the court in Kihoto Hollohan (supra) is sufficient to warrant  interference with the order in question.   

26.             In a sense, this aspect may not be of a great  importance in this case since going by the stand adopted on  behalf of the 37 M.L.As., the Speaker was justified in keeping  the petition seeking disqualification of 13 M.L.As. pending,  even while he proceeded to accept a case of split in the B.S.P..  

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The question really is whether the Speaker was justified in  doing so.  As we have indicated above, the whole proceeding  under the Tenth Schedule to the Constitution is initiated or  gets initiated as a part of disqualification of a member of the  House.  That disqualification is by way of defection.  The rules  prescribed by various legislatures including the U.P.  legislature contemplate the making of an application to the  Speaker when there is a complaint that some member or  members have voluntarily given up his membership or their  memberships in the party.  It is only then that in terms of the  Tenth Schedule, the Speaker is called upon to decide the  question of disqualification raised before him in the context of  paragraph 6 of the Tenth Schedule.  Independent of a claim  that someone has to be disqualified, the scheme of the Tenth  Schedule or the rules made thereunder, do not contemplate  the Speaker embarking upon an independent enquiry as to  whether there has been a split in a political party or there has  been a merger.  Therefore, in the context of Articles 102 and  191 and the scheme of the Tenth Schedule to the  Constitution, we have no hesitation in holding that the  Speaker acts under the Tenth Schedule only on a claim of  disqualification being made before him in terms of paragraph  2 of the Tenth Schedule.   

27.             The Speaker, as clarified in Kihoto Hollohan  (supra), has necessarily to decide that question of  disqualification as a Tribunal.  In the context of such a claim  against a member to disqualify him, that member, in addition  to a plea that he had not voluntarily given up his membership  of the Party or defied the whip issued to him, has also the  right to show that there was a split in the original political  party that other legislators have also come out of the  legislature party as a consequence of that split, that they  together constituted one-third of the total number of  legislators elected on the tickets of that party.  He has also the  right to take up a plea that there has been a merger of his  party with another party in terms of paragraph 4 of the Tenth  Schedule.  Call it a defence or whatever, a claim under  paragraph 3 as it existed prior to its deletion or under  paragraph 4 of the Tenth Schedule, are really answers to a  prayer for disqualifying the member from the legislature on the  ground of defection.  Therefore, in a case where a Speaker is  moved by a legislature party or the leader of a legislature party  to declare certain persons disqualified on the ground that they  have defected, it is certainly open to them to plead that they  are not guilty of defection in view of the fact that there has  been a split in the original political party and they constitute  the requisite number of legislators or that there has been a  merger.  In that context, the Speaker cannot say that he will  first decide whether there has been a split or merger as an  authority and thereafter decide the question whether  disqualification has been incurred by the members, by way of  a judicial adjudication sitting as a Tribunal.  It is part and  parcel of his jurisdiction as a Tribunal while considering a  claim for disqualification of a member or members to decide  that question not only in the context of the plea raised by the  complainant but also in the context of the pleas raised by  those who are sought to be disqualified that they have not  incurred disqualification in view of a split in the party or in  view of a merger.  28.             The decision of a Full Bench of the Punjab &  Haryana High Court in Prakash Singh Badal Vs. Union of  India & Ors. [A.I.R. 1987 Punjab & Haryana 263] was relied  upon to contend that the Speaker gets jurisdiction to render a

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decision in terms of the Tenth Schedule to the Constitution of  India only when in terms of paragraph 6 thereof a question of  disqualification arose before him.  The Full Bench by a  majority held:

"Under, para. 6, the Speaker would have  the jurisdiction in this matter only if any  question arises as to whether a member of  the House has become subject to  disqualification under the said Schedule  and the same has been referred to him for  decision. The purpose of requirement of a  reference obviously is that even when a  question as to the disqualification of a  member arises, the Speaker is debarred  from taking suo motu cognizance and he  would be seized of the matter only when the  question is referred to him by any  interested person. The Speaker has not  been clothed with a suo motu power for the  obvious reason that he is supposed to be a  non-party man and has been entrusted  with the jurisdiction to act judicially and  decide the dispute between the conflicting  groups. The other prerequisite for invoking  the jurisdiction of the Speaker under para.  6 is the existence of a question of  disqualification of the some member. Such  a question can arise only in one way, viz.,  that any member is alleged to have incurred  the disqualification enumerated in para 2(1)  and some interested person approaches the  Speaker for declaring that the said member  is disqualified from being member of the  House and the claim is refuted by the  member concerned."

It was argued on behalf of the 37 M.L.As. that this position  adopted by the Full Bench does not reflect the correct position  in law since there is nothing in the Tenth Schedule which  precludes the Speaker from rendering an adjudication either  in respect of a claim under paragraph 3 of the Schedule or  paragraph 4 of the Schedule, independent of any question  arising before him in terms of paragraph 2 of the Schedule.   Considering the scheme of the Tenth Schedule in the context  of Articles 102 and 191 of the Constitution and the wording of  paragraph 6 and the conferment of jurisdiction on the Speaker  thereunder, we are inclined to the view that the position  adopted by the majority of the High Court of Punjab &  Haryana in the above decision as to the scope of the Tenth  Schedule, reflects the correct legal position.  Under the Tenth  Schedule, the Speaker is not expected to simply entertain a  claim under paragraphs 3 and 4 of the Schedule without first  acquiring jurisdiction to decide a question of disqualification  in terms of paragraph 6 of the Schedule.   The power if any, he  may otherwise exercise independently to recognise a group or  a merger, cannot be traced to the Tenth Schedule to the  Constitution.   The power under the Tenth Schedule to do so  accrues only when he is called upon to decide the question  referred to in paragraph 6 of that Schedule.

29.             In the case on hand, the Speaker had a petition  moved before him for disqualification of 13 members of the  B.S.P.  When that application was pending before him, certain

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members of B.S.P. had made a claim before him that there has  been a split in B.S.P.   The Speaker, on the scheme of the  Tenth Schedule and the rules framed in that behalf, had to  decide the application for disqualification made and while  deciding the same, had to decide whether in view of paragraph  3 of the Tenth Schedule, the claim of disqualification has to be  rejected.   We have no doubt that the Speaker had totally  misdirected himself in purporting to answer the claim of the  37 M.L.As. that there has been a split in the party even while  leaving open the question of disqualification raised before him  by way of an application that was already pending before him.   This failure on the part of the Speaker to decide the  application seeking a disqualification cannot be said to be  merely in the realm of procedure.  It goes against the very  constitutional scheme of adjudication contemplated by the  Tenth Schedule read in the context of Articles 102 and 191 of  the Constitution.   It also goes against the rules framed in that  behalf and the procedure that he was expected to follow.  It is  therefore not possible to accept the argument on behalf of the  37 M.L.As. that the failure of the Speaker to decide the  petition for disqualification at least simultaneously with the  petition for recognition of a split filed by them, is a mere  procedural irregularity.  We have no hesitation in finding that  the same is a jurisdictional illegality, an illegality that goes to  the root of the so called decision by the Speaker on the  question of split put forward before him.  Even within the  parameters of judicial review laid down in Kihoto Hollohan  (supra) and in Jagjit Singh vs. State of Haryana ( 2006(13)  SCALE 335) it  has to be found that the decision of the  Speaker impugned is liable to be set aside in exercise of the  power of judicial review.   

30.             There is another aspect.  The Speaker, after he kept  the determination of the question of disqualification pending,  passed an order that the said petition will be dealt with after  the High Court had taken a decision on the Writ Petition  pending before it and directed that the said petition be taken  up after the Writ Petition was disposed of.  Then, suddenly,  without any apparent reason, the Speaker took up that  application even while the Writ Petition was pending and  dismissed the same on 7.9.2005 by purporting to accept a so  called preliminary objection raised by the 13 M.L.As. sought to  be disqualified, to the effect that his recognition of the split of  the 37 M.L.As. including themselves, has put an end to that  application.  This last order is clearly inconsistent with the  Speaker’s earlier order dated 14.11.2003 and still leaves open  the question whether the petition seeking disqualification  should not have been decided first or at least simultaneously  with the application claiming recognition of a split.  If the  order recognising the split goes, obviously this last order also  cannot survive.  It has perforce to go.

31.             Considerable arguments were addressed on the  scope of paragraph 2 and paragraph 3 of the Tenth Schedule  with particular reference to the point of time that must be  considered to be relevant.   Whereas it was argued on behalf of  leader of B.S.P. that the liability or disability is incurred at the  point of voluntarily giving up the membership of the political  party, according to the 37 M.L.As. who left, the relevant point  of time is the time when the Speaker takes a decision on the  plea for disqualification.   As a corollary to the above, the  contention on the one side is that if on the day the  disqualification is incurred there has been no split in terms of  paragraph 3, those disqualified who had given up their  membership of the party must be declared disqualified, the

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argument on the other side is that if by the time the Speaker  takes the decision, the persons sought to be disqualified are  able to show that there has been a split in the original party  and by that time they have a strength of one third of the  Legislature party, the Speaker will have necessarily to accept  the split and reject the petition for disqualification.   In other  words, according to this argument all developments until the  point of decision by the Speaker are to be taken note of by  him, while deciding the question of disqualification.   They  canvas the acceptance of what the learned Chief Justice of the  High Court has called the snowballing effect of persons  severing their connections with the original party and joining  the quitters subsequently and not confining the decision to the  point of their alleged severing their connection with the  original party.

32.             It is argued on behalf of 37 MLAs that the  disqualification on the ground of defection should not be held  as a sword of Damocles against honest political dissent and  the prevention of honest political dissent is not the object  sought to be achieved by the Tenth Schedule.   This  submission is sought to be supported by the argument that at  the relevant time paragraph 3 provided that if on the basis of a  split in the original party one third of the members of the  Legislature party have voluntarily give up their membership of  the original political party, they could not be disqualified.   The  relevant observations in Kihoto Hollohan (supra) are referred  to.   It is also pointed out that paragraph 4 which is still  retained, also contemplates leaving of one’s own party by  merging of that party with another political party though by  definition, that may also amount to defection in terms of  paragraph 2.    

33.             It may be true that collective dissent is not intended  to be stifled by the enactment of sub-article (2) of Articles 102  and 191 of the Tenth Schedule.  But at the same time, it is  clear that the object is to discourage defection which has  assumed menacing proportions undermining the very basis of  democracy.  Therefore, a purposive interpretation of paragraph  2 in juxtaposition with paragraphs 3 and 4 of the Tenth  Schedule is called for.   One thing is clear that defection is a  ground for disqualifying a member from the House.   He incurs  that disqualification if he has voluntarily given up his  membership of his original political party, meaning the party  on whose ticket he had got elected himself to the House.   In  the case of defiance of a whip, the party concerned is given an  option either of condoning the defiance or seeking  disqualification of the member concerned.   But, the decision  to condone must be taken within 15 days of the defiance of the  whip.   This aspect is also relied on for the contention that the  relevant point of time to determine the question is when the  Speaker actually takes a decision on the plea for  disqualification.

34.             As we see it, the act of disqualification occurs on a  member voluntarily giving up his membership of a political  party or at the point of defiance of the whip issued to him.    Therefore, the act that constitutes disqualification in terms of  paragraph 2 of the Tenth Schedule is the act of giving up or  defiance of the whip.  The fact that a decision in that regard  may be taken in the case of voluntary giving up by the Speaker  at a subsequent point of time cannot and does not postpone

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the incurring of disqualification by the act of the Legislator.   Similarly, the fact that the party could condone the defiance of  a whip within 15 days or that the Speaker takes the decision  only thereafter in those cases, cannot also pitch the time of  disqualification as anything other than the point at which the  whip is defied.   Therefore in the background of the object  sought to be achieved by the Fifty Second Amendment of the  Constitution and on a true understanding of paragraph 2 of  the Tenth Schedule, with reference to the other paragraphs of  the Tenth Schedule, the position that emerges is that the  Speaker has to decide the question of disqualification with  reference to the date on which the member voluntarily gives  up his membership or defies the whip.   It is really a decision  ex post facto. The fact that in terms of paragraph 6 a decision  on the question has to be taken by the Speaker or the  Chairman, cannot lead to a conclusion that the question has  to be determined only with reference to the date of the decision  of the Speaker.  An interpretation of that nature would leave  the disqualification to an indeterminate point of time and to  the whims of the decision making authority.  The same would  defeat the very object of enacting the law.  Such an  interpretation should be avoided to the extent possible.  We  are, therefore, of the view that the contention that only on a  decision of the Speaker that the disqualification is incurred,  cannot be accepted.  This would mean that what the learned  Chief Justice has called the snowballing effect, will also have  to be ignored and the question will have to be decided with  reference to the date on which the membership of the  Legislature party is alleged to have been voluntarily given up.

35.             In the case on hand, the question would, therefore  be whether on 27.3.2003 the 13 members who met the  Governor with the request to invite the leader of the  Samajwadi Party to form the Government had defected, on  27.8.2003 and whether they have established their claim that  on 26.8.2003 there had been a split in the Bahujan Samaj  Party and one third of the members of the Legislature of that  party had come out of that party.  It may be noted that the  clear and repeated plea in the counter affidavit to the writ  petition is that a split had occurred on 26.8.2003.  This was  also the stand of the petitioner before the Speaker for  recognition of a split.  The position as on 6.9.2003 when the  37 MLAs presented themselves before the Speaker would not  have relevance on the question of disqualification which had  allegedly been incurred on 27.8.2003.

36.             The question whether for satisfying the  requirements of paragraph 3, it was enough to make a claim of  split in the original political party or it was necessary to at  least prima facie establish it, fell to be considered in the  decision in Jagjit Singh Vs. State of Haryana (supra)  rendered by a Bench of three Judges to which one of us,  (Balasubramanyan, J.) was a party.  Dealing with an  argument that a claim of split in the original political party  alone is sufficient in addition to showing that one-third of the  members of the legislature Party had formed a separate group,  the learned Chief Justice has explained the position as follows:

"Learned counsel for the petitioner, however,  relies upon paragraph 37 in Ravi S. Naik’s  case in support of the submission that only a  claim as to split has to be made and it is not  necessary to prove the split.  The said  observations are:

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’In the present case the first  requirement was satisfied because  Naik has made such a claim.  The  only question is whether the second  requirement was fulfilled.’

The observations relied upon are required to  be appreciated in the light of what is stated in  the next paragraph, i.e., paragraph 38,  namely:

’As to whether there was a split  or not has to be determined by  the Speaker on the basis of the  material placed before him.’

Apart from the above, the acceptance of the  contention that only claim is to be made to  satisfy the requirements of paragraph 3 can  lead to absurd consequences besides the  elementary principle that whoever makes a  claim has to establish it.  It will also mean that  when a claim as to split is made by a member  before the speaker so as to take benefit of  paragraph 3, the Speaker, without being  satisfied even prima facie about the  genuineness and bonafides of the claim, has to  accept it.  It will also mean that even by raising  a frivolous claim of split of original political  party, a member can be said to have satisfied  this stipulation of paragraph 3.  The  acceptance of such broad proposition would  defeat the object of defection law, namely, to  deal with the evil of political defection sternly.   We are of the view that for the purposes of  paragraph 3, mere making of claim is not  sufficient.  The prima facie proof of such a split  is necessary to be produced before the Speaker  so as to satisfy him that such a split has taken  place."

37.              Thus, in the above decision, it has been clarified  that it is not enough that a claim is made of a split in the  original party, in addition to showing that one third of the  members of the Legislature Party have come out of the party,  but it is necessary to prove it at least prima facie.   Those who  have left the party, will have, prima facie, to show by relevant  materials that there has been a split in the original party.  The  argument, therefore, that all that the 37 MLAs were required  to do was to make a claim before the Speaker that there has  been  a split in the original party and to show that one third of  the members of the Legislature party have come out and that  they need not produce any material in support of the split in  the original political party, cannot be accepted.   The argument  that the ratio of the decision in Jagjit Singh (supra) requires  to be reconsidered does not appeal to us.   Even going by Ravi  S. Naik (supra) it could not be said that the learned Judges  have held that a mere claim in that behalf is enough.  As  pointed out in Jagjit Singh (supra) the sentence in paragraph  37 in Ravi S. Naik’s  case (supra) cannot be read in isolation  and it has to be read along with the relevant sentence in  paragraph 38 quoted in Jagjit Singh (supra).  

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38.             Acceptance of the argument that the legislators are  wearing two hats, one as members of the original political  party and the other as members of the legislature and it would  be sufficient to show that one third of the legislators have  formed a separate group to infer a split or to postulate a split  in the original party, would militate against the specific terms  of paragraph 3.   That paragraph speaks of two requirements,  one, a split in the original party and two, a group comprising  of one third of the legislators separating from the legislature  party.   By acceding to the two hat theory one of the limbs of  paragraph 3 would be made redundant or otios.    An  interpretation of that nature has to be avoided to the extent  possible.   Such an interpretation is not warranted by the  context.   It is also not permissible to assume that the  Parliament has used words that are redundant or  meaningless.   We, therefore, overrule the plea that a split in  the original political party need not separately be established if  a split in the legislature party is shown.   

39.             On the side of the 37 M.L.As., the scope of judicial  review being limited was repeatedly stressed to contend that  the majority of the High Court had exceeded its jurisdiction.   Dealing with the ambit of judicial review of an order of the  Speaker under the Tenth Schedule, it was held in Kihoto  Hollohan (supra):

"In the present case, the power to decide  disputed disqualification under Paragraph  6(1) is preeminently of a judicial  complexion. 39. The fiction in Paragraph 6(2), indeed,  places it in the first clause of Article 122 or  212, as the case may be. The words  "proceedings in Parliament" or "proceedings  in the legislature of a State" in Paragraph  6(2) have their corresponding expression in  Articles 122(1) and 212(1) respectively. This  attracts an immunity from mere  irregularities of procedures. That apart, even after 1986 when the Tenth  Schedule was introduced, the Constitution  did not evince any intention to invoke  Article 122 or 212 in the conduct of  resolution of disputes as to the  disqualification of members under Articles  191(1) and 102(1). 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, ho  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."

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After referring to the relevant aspects, it was held: "By these well-known and accepted tests of  what constitute a Tribunal, the Speaker or  the Chairman, acting under paragraph 6(1) of  the Tenth Schedule is a Tribunal."

It was concluded:

"In the light of the decisions referred to above  and the nature of function that is exercised by  the Speaker/Chairman under paragraph 6, the  scope of judicial review under Articles 136,  and 226 and 227 of the Constitution in respect  of an order passed by the Speaker/Chairman  under paragraph 6 would be confined to  jurisdictional errors only viz., infirmities based  on violation of constitutional mandate, mala  fides, non-compliance with rules of natural  justice and perversity."

The position was reiterated by the Constitution Bench in  Raja Ram Pal Vs. The Hon’ble Speaker, Lok Sabha &  Ors.  [JT 2007 (2) SC 1].  We are of the view that contours  of interference have been well drawn by Kihoto Hollohan  (supra) and what is involved here is only its application.   

40.             Coming to the case on hand, it is clear that the  Speaker, in the original order, left the question of  disqualification undecided.   Thereby he has failed to exercise  the jurisdiction conferred on him by paragraph 6 of the Tenth  Schedule.   Such a failure to exercise jurisdiction cannot be  held to be covered by the shield of paragraph 6 of the  Schedule.  He has also proceeded to accept the case of a split  based merely on a claim in that behalf.  He has entered no  finding whether a split in the original political party was prima  facie proved or not.  This action of his, is apparently based on  his understanding of the ratio of the decision in Ravi S. Naik’s  case (supra).  He has misunderstood the ratio therein.  Now  that we have approved the reasoning and the approach in  Jagjit Singh’s case and the ratio therein is clear, it has to be  held that the Speaker has committed an error that goes to the  root of the matter or an error that is so fundamental, that even  under a limited judicial review the order of the Speaker has to  be interfered with.  We have, therefore, no hesitation in  agreeing with the majority of the High Court in quashing the  decisions of the Speaker.

41.            In view of our conclusions as above, nothing  turns on the arguments urged on what were described as  significant facts and on the alleged belatedness of the  amendment to the Writ Petition.  It is undisputable that in  the order that was originally subjected to challenge in the  Writ Petition, the Speaker specifically refrained from  deciding the petition seeking disqualification of the 13  M.L.As.  On our reasoning as above, clearly, there was an  error which attracted the jurisdiction of the High Court in  exercise of its power of judicial review.  

42.             The question then is whether it was necessary for  the majority of the Division Bench of the High Court to remand  the proceeding to the Speaker or a decision could have been  taken whether the 13 members stand disqualified or not and if  they are found to be disqualified, the balance 24 of the 37

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would also stand disqualified, since in that case, there will be  no one third of the Legislature party forming a separate group  as claimed by them.   It is contended on behalf of the Bahujan  Samaj Party that there is absolutely no material to show that  there was any meeting of the party on 26.8.2003 as claimed by  the 37 members and it has not been shown that there was any  convention of the original political party or any decision taken  therein to split the party or to leave the party by some of the  members of that party.  It is also pointed out that no agenda of  the alleged meeting or minutes of the alleged meeting is  produced.    No other material is also produced.   Even prior to  6.9.2003, when the claim of split before the Speaker was made  and 26.8.2003, when the split is claimed to have occurred, the  24 members of the 37, had sat with the Bahujan Samaj Party  in the Legislative Assembly and that itself would show that  there had been no split on 27.8.2003 as now claimed.   It is  also pointed out that on 2.9.2003, the day of the convening of  the Assembly, the 13 members of the B.S.P. who had met the  Governor on 27.8.2003, had sat with members of the  Samajwadi Party in the Assembly and an objection was raised  to it.  The Speaker got over the situation by saying that the  only business on the agenda that day was obituary references  and the question need not be raised that day.   It is, therefore,  contended that on the facts, it is crystal clear that the 13  members sought to be disqualified had defected and the  defection is manifest by their meeting the Governor on  27.8.2003 requesting him to call upon the leader of the  Samajwadi Party to form the Government.

43.             As against these submissions, it is contended that it  was for the Speaker to take a decision in the first instance and  this Court should not substitute its decision for that of the  Speaker.   It is submitted that the High Court was therefore  justified in remitting the matter to the Speaker, in case this  Court did not agree with the 37 MLAs that the decision of the  Speaker did not call for interference.

44.             Normally, this Court might not proceed to take a  decision for the first time when the authority concerned has  not taken a decision in the eyes of law and this Court would  normally remit the matter to the authority for taking a proper  decision in accordance with law and the decision this Court  itself takes on the relevant aspects.   What is urged on behalf  of the Bahujan Samaj Party is that these 37 MLAs except a few  have all been made ministers and if they are guilty of defection  with reference to the date of defection, they have been holding  office without authority, in defiance of democratic principles  and in such a situation, this Court must take a decision on  the question of disqualification immediately.  It is also  submitted that the term of the Assembly is coming to an end  and an expeditious decision by this Court is warranted for  protection of the constitutional scheme and constitutional  values.  We find considerable force in this submission.   

45.             Here, the alleged act of disqualification of the 13  MLAs took place on 27.8.2003 when they met the Governor  and requested him to call the leader of the opposition to form  the Government.  The petition seeking disqualification of these  13 members based on that action of theirs has been allowed to  drag on till now.   It is not necessary for us to consider or  comment on who was responsible for such delay.  But the fact  remains that the term of the Legislative Assembly that was  constituted after the elections in February 2002, is coming to  an end on the expiry of five years.  A remand of the proceeding

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to the Speaker or our affirming the order of remand passed by  the High Court, would mean that the proceeding itself may  become infructuous.  We may notice that the question of  interpretation of the Tenth Schedule and the question of  disqualification earlier raised in regard to members of the prior  assembly of this very State, which led to the difference of  opinion between two of the learned Judges of this Court and  which stood referred to a Constitution Bench, was, disposed of  on the ground that it had become infructuous in view of the  expiry of the term of the Assembly.   Paragraph 3 of the Tenth  Schedule has also been deleted by the Parliament, though for  the purpose of this case, the scope of that paragraph is  involved.   Considering that if the 13 members are found to be  disqualified, their continuance in the Assembly even for a day  would be illegal and unconstitutional and their holding office  as ministers would also be illegal at least after the expiry of six  months from the date of their taking charge of the offices of  Ministers, we think that as a Court bound to protect the  Constitution and its values and the principles of democracy  which is a basic feature of the Constitution, this Court has to  take a decision one way or the other on the question of  disqualification of the 13 MLAs based on their action on  27.8.2003 and on the materials available.

46.             The main thrust of the argument on the side of the  13 MLAs included in the 37 MLAs, has been that it was  enough if a claim of a split in the original political party had  been made and it was not necessary to establish any such  split and it was enough for them to show that 37 of them had  signed the petition filed before the Speaker on 6.9.2003.   We  have held on an interpretation of paragraph 3 and in approval  of the ratio in Jagjit Singh (supra) that the 37 MLAs which  includes the 13 MLAs in question had to establish a split in  the original political party, here BSP, before they can get the  protection offered by paragraph 3.  The question is whether  they have proved at least prima facie any such split.

47.             The first act on the part of the 13 MLAs which is  relevant is the giving of letters by them to the Governor, the  contents of which we have quoted earlier in paragraph 16.    Therein, there is no claim that there was a split in the  Legislature Party on 26.8.2003 as was put forward in the  representation on 6.9.2003 by 37 members.   It is interesting  to note that in the counter-affidavit to the writ petition filed by  Rajendra Singh Rana who can be described as the leader of  the 13 (for that matter of the 37), it has been repeatedly  asserted that on 26.8.2003 a new party called Lok Tantrik  Bahujan Dal was formed.   Therefore, this was a case in which  the theory of snow balling adverted to by the learned Chief  Justice in the Judgment under appeal had no relevance.   The  issue was, whether on 26.8.2003 there had been a split in the  original political party, the BSP and whether by that split, 37  of the MLAs of that Legislature Party had come out of that  party.   As rightly pointed out by learned counsel for BSP, no  material  is produced either to show that a meeting of the  members of BSP was convened on 26.8.2003 or that a meeting  took place at Darulshafa  in which a split in the original  political party occurred.  On the other hand, the letters given  to the Governor on 27.8.2003 by the 13 members sought to be  disqualified, is totally silent on any such split in the original  political party or on a new party being formed by certain  members of the original political party.  This is followed by the  fact that on 2.9.2003 only the members who had met the  Governor, sat with the members of the Samajwadi Party  abandoning their seats with BSP in the Assembly and the

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other 24, which made up the 37, remained in their seats along  with the BSP.  More over, no notice of a proposed meeting of  the party on 26.8.2003, or evidence of any announcement of  such a proposed meeting is produced.   No agenda of any such  meeting is also produced.   No minutes evidencing any  decision to split the party taken at such a meeting, is also  produced.   These relevant aspects clearly demonstrate that  the story of a split in the original political party put forward in  the letter dated 6.9.2003 was only an afterthought.   Even  before us, no material was referred to, to suggest or establish  that there was a split on 26.8.2003 and the formation of a Lok  Tantril Dal as claimed in the counter affidavit to the writ  petition.  The attempt was only to argue that we must leave  the decision to the Speaker in the first instance and that the  challenge to the meeting on 26.8.2003 was only raised  belatedly in the writ petition.  On a scrutiny of the pleadings in  the original writ petition, we cannot also agree with that latter  submission.

48.             The act of giving a letter requesting the Governor to  call upon the leader of the other side to form a Government,  itself would amount to an act of voluntarily giving up the  membership of the party on whose ticket the said members  had got elected.  Be it noted that on 26.8.2003, the leader of  their party had recommended to the Governor, a dissolution of  the Assembly.  The first eight were accompanied by Shivpal  Singh Yadav, the General Secretary of the Samajwadi Party.   In Ravi Naik (supra) this Court observed: "A person may voluntarily give up his  membership of an original political party even  though he has not tendered his resignation  from the membership of that party.  Even in  the absence of a formal resignation from the  membership, an inference can be drawn from  the conduct of a member that he has  voluntarily given up his membership of the  political party to which he belongs."

49.             Clearly, from the conduct of meeting the Governor  accompanied by the General Secretary of the Samajwadi Party,  the party in opposition and the submission of letters  requesting the Governor to invite the leader of that opposition  party to form a Government as against the advise of the Chief  Minister belonging to their original party to dissolve the  assembly, an irresistible inference arises that the 13 members  have clearly given up their membership of the BSP.  No further  evidence or enquiry is needed to find that their action comes  within paragraph 2(1)(a) of the Tenth Schedule.  Then the only  question is whether they had shown at least prima facie that a  split had occurred in the original political party on 26.8.2003  and they had separated from it along with at least 24 others,  so as to make up one-third of the legislature party.

50.             The learned Chief Justice who declined to interfere  with the decision of the Speaker on his interpretation of  paragraphs 2 and 3 of the Tenth Schedule to the Constitution  with which we have disagreed, himself stated: "As per the dicta in the case of Naik, reported  1994 (Suppl.)2 SCC 641, the going of the 13  MLAs to the Governor on 27.8.2003 is a  conduct which leads to the inference that they  had voluntarily given up their membership of  the Bahujan Dal.   They asked the governor to  call the leader of the main opposing party, to  be requested to demonstrate his strength.  In

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paragraph 11 in Naik’s case, it is said that an  inference can be drawn from the conduct of a  member that he was voluntarily given up his  membership.   That inference has to be drawn  in regard to the conduct of 27.08.2003 most  certainly."

He has also observed  while considering whether the Speaker  had to consider paragraph 2 of the Tenth Schedule first or he  is to consider paragraph 3 first.   "The order of consideration will yield  diametrically opposite results.   Even, in this  case, if he had considered paragraph 2 first, he  might well have had to disqualify all 37, as  they did not walk away at one and the same  time.  But because he considered paragraph 3  first, because he though as a matter of law  that the requirements of paragraph 3 being  satisfied, it obviated the necessity of  considering paragraph 2 separately for any  part of the whole group, he gave a decision for  the respondents."

The learned Chief Justice has further held: "Even if 37 out of 109 Bahujan MLAs have  walked out, only the legislature party is split.   This is defined in paragraph 1(b), which has  been set out earlier; but in this case of ours,   where is the proof before the Speaker of the  split in the original party?  Were any minutes  tendered before the Speaker showing that so  many lacs or millions of the original Bahujan  Dal decided to split?  A claim that on  26.08.2003, there were some party members  along with the MLAs at the Darulshafa in  Lucknow is not enough; it is too inadequate.   The Bahujan Dal is too big; its party  membership is too numerous for it to suffer a  split in such a comparatively minor meeting,  even if it took place on 26.8.2003.   There was  no intimation that one group was going to  split; even the name Loktantrik Bahujan Dal  found its place for the first time on paper on  6.9.2003; there were no Newspaper reports;  there were no statements of dissatisfied party  members; the core of the Bahujan Dal was not  asked to "rectify" its behaviour or else.   The  threat of a split was not even made imminent;  nothing like this happened; only one evening,  it is claimed, the Bahujan Dal had split and a  faction had arisen.   This is so cursory as not  to class as a split in the original party at all.    Look at the split in Congress-O, which resulted  in Congress-I coming into being;   Looking at  the split in Congress-I in West Bengal and the  resulting Trinamul Congress coming into  being, was there anything like that here?  The  answer is a big no."

51.             One of the learned Judges who constitutes the  majority has held: "\005\005\005. but the court cannot certainly close its  eyes to the fact that had the application for  disqualification dated 4.9.2003 been treated  with the same promptitude and

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constitutionally required urgency, the 13 MLAs  whose Membership in question was hanging in  the balance could not have been counted along  with 24 others, who joined hands to conjure  up the minimum required member\005\005."

52.             As we have indicated, nothing is produced to show  that there was a split in the original political party on  26.8.2003 as belatedly put forward or put forward at a later  point of time.   But still, the plea was of a split on 26.8.2003.   On the materials, the only possible inference in the  circumstances of the case, is that it has not been proved, even  prima facie, by the MLAs sought to be disqualified that there  was any split in the original political party on 26.8.2003 as  claimed by them.  The necessary consequence would be that  the 24 members, who later joined the 13, could not also  establish a split in the original political party as having taken  place on 26.8.2003.  In fact even a split involving 37 MLAs on  26.8.2003 is not established.   That was also the inference  rightly drawn by the learned Chief Justice in the judgment  appealed against.

53.             In view of our conclusion that it is necessary not  only to show that 37 MLAs had separated but it is also  necessary to show that there was a split in the original  political party,  the above finding necessarily leads to the  conclusion that the 13 MLAs sought to be disqualified had not  established a defence or answer to the charge of defection  under paragraph 2 on the basis of paragraph 3 of the Tenth  Schedule.   The 13 MLAs, therefore, stand disqualified with  effect from 27.8.2003.  The very giving of a letter to the  Governor requesting him to call the leader of the opposition  party to form a Government by them itself would amount to  their voluntarily giving up the membership of their original  political party within the meaning of paragraph 2 of the Tenth  Schedule.  If so, the conclusion is irresistible that the 13  members of BSP who met the Governor on 27.8.2003 who are  respondent Nos.2,3,4,5,6,9,10,14,16,19,20,21 and 37, in the  writ petition filed by Maurya, stand disqualified in terms of  Article 191(2) of the Constitution read with paragraph 2 of the  Tenth Schedule thereof, with effect from 27.8.2003.  If so, the  appeal filed by the writ petitioner has to be allowed even while  dismissing the appeals filed by the 37 MLAs, by modifying the  decision of the majority of the Division Bench.  Hence the writ  petition filed in the High Court, will stand allowed with a  declaration that the 13 members who met the Governor on  27.8.2003, being respondent numbers 2, 3, 4, 5, 6, 9, 10, 14,  16, 19, 20, 21 and 37 in the writ petition, stand disqualified  from the Uttar Pradesh Legislative Assembly with effect from  27.8.2003.

54.             The appeals filed by the 37 MLAs are dismissed and  the appeal filed by the writ petitioner is allowed in the above  manner.  The disqualified members will pay the costs of the  writ petitioner, here and in the High Court.