Shri Krishna vs State of Rajasthan and Others

K.S. Rathore, J.—The present special appeal is directed against the order dated 18.12.2009 passed by the learned Single Judge in S.B. Civil Writ Petition No. 13042/2009, whereby the writ petition has been dismissed.

Brief facts giving rise to the present appeal are that six members (respondent Nos. 4 to 9 herein) of the 13th House of Rajasthan Assembly who were elected on the ticket and symbol of Bahujan Samaj Party (for short ''the BSP), passed a resolution on 04.04.2009 stating that they have merged the BSP into Indian National Congress (In Rajasthan Legislative Assembly) in terms of sub paragraph (1)(a) and 2 of paragraph (4) of Schedule X of the Constitution of India. Thereafter the aforesaid six MLAs filed an application dated 04.04.2009 before the Hon''ble Speaker, Rajasthan Vidhansabha along with said resolution claiming merger of the BSP into Indian National Congress (In Rajasthan Legislative Assembly) supported by their individual affidavits.

Hon''ble the Speaker passed an order dated 09.04.2009 exercising his jurisdiction in terms of Schedule X and thereby accepted the aforesaid claim of the six BSP MLAs and allowed them to merge into Indian National Congress (In Rajasthan Legislative Assembly) with the stipulation that they may now be treated as members of Indian National Congress.

Being aggrieved and dissatisfied with the order passed by the Hon''ble Speaker dated 09.04.2009, the appellant/petitioner preferred a writ petition before this Court which was registered as S.B. Civil Writ Petition No. 13042/2009 titled as Shri Krishna v. State of Rajasthan and Ors. The said writ petition was listed before this Court on 09.11.2009 and following submissions were made on behalf of the petitioner before the learned Single Judge:

It is submitted by the learned Counsel for the petitioner that the impugned order dated 09.04.2009 passed by the Hon''ble Speaker, Rajasthan Legislative Assembly, Jaipur is illegal and without jurisdiction. He has contended that the proceedings under Schedule X of the Constitution of India gets started before the Hon''ble Speaker only on a complaint being made before him that certain persons belonging to political party had incurred disqualification on the grounds of defection. Further, he has submitted that even Rule 6 of Rajasthan Assembly Members (Disqualification on the grounds of defection) Rules 1989 contemplates the making of an application to the Hon''ble Speaker when there is a complaint that some Member has voluntarily given up his Membership in the party. It is only then that in terms of Schedule X, the Hon''ble Speaker is called upon to decide the question of disqualification raised before him in the context of Schedule X para 6 of the Constitution of India. In support of his submissions the learned Counsel for the petitioner has placed reliance on the case of Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others,

It has also been contended 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. Such decision by the Hon''ble Speaker operates independently of the House. Therefore, it has been submitted that the Speaker while exercising powers and discharging functions under the Xth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and his decision in that capacity is amenable to judicial review. In support of his submissions, the learned Counsel for the petitioner has relied on the cases of Shri Kihota Hollohon Vs. Mr. Zachilhu and others, Dr. Kashinath G. Jalmi and another Vs. The Speaker and others, I. I. Manilal Singh Vs. Dr. H. Borobabu Singh and another, and Raja Ram Pal Vs. The Hon''ble Speaker, Lok Sabha and Others,

The learned Single Judge considering the submissions made on behalf of the petitioner and having gone through the judgments referred by the learned Counsel for the petitioner, was of the opinion that the matter requires consideration and while admitting the petition, issued notices to the respondents.

Learned Counsel Mr. Nahta, appearing on behalf of the appellant submits that despite the fact that notices have been issued by this Court giving ''dasti'' to the learned Counsel for the petitioner and made returnable within two weeks, the notices were not accepted by the Hon''ble Speaker, on the contrary, Hon''ble the Speaker instructed the officials of the Legislative Assembly not to issue gate pass to anybody who comes for serving the notices of the Hon''ble Court.

Upon perusal of the letter issued by the Secretary, Rajasthan Assembly, it appears that notices duly served upon the Hon''ble Speaker as the Secretary, Rajasthan Assembly informed the appellant that copy of the petition has not been attached to the notices served. All the parties are duly represented through their respective Counsel.

The learned Single Judge considering the relief claimed by the petitioner, which has been reproduced in the order impugned dated 18.12.2009 also, and having heard learned Counsel for the petitioner Mr. Hemant Nahta, learned Advocate General Mr. G.S. Bapna and after going through the judgments and the relevant provisions of law referred by the respective parties thoroughly and precisely, considering para 6 of Schedule X to the Constitution of India and after carefully scanning the judgment rendered by the Hon''ble Supreme Court in the case of Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others, more particularly paras 25 and 29, referred by the learned Counsel for the petitioner, and other material available on the record, vide its order impugned dated 18.12.2009 observed as under:

First of all, upon perusal of para 6 of the Tenth Schedule to the Constitution of India, I am of the opinion that as per the said para, only and only the Speaker is having jurisdiction to decide the question of disqualification and matter with regard to disqualification is required to be referred to the Speaker of the Assembly only. Here, in this case, it appears that in the order impugned the question with regard to disqualification is not in existence nor order impugned has been passed by the Speaker of the Assembly upon any complaint that six members of the BSP are disqualified. By the impugned order the Speaker has only accepted the decision of the members of the BSP who were elected as Members of the Legislative Assembly of Rajasthan and decided to merge their party with the Indian National Congress. Therefore, nothing has been adjudicated by the Speaker. It is only acceptance of a prayer by the Speaker and that order cannot be treated to a quasi judicial order which comes within the purview of judicial scrutiny. In this view of the matter, the facts of Rajendra Singh Rana''s case are not applicable to this case. Moreover, the judgment cited by the applicant in its application reported in Jagjit Singh Vs. State of Haryana and Others, is applicable in the present matter, in which, the apex Court has held that Speaker of the Assembly enjoys a very high status and position of great respect and esteem in the parliamentary traditions. He being the very embodiment of propriety and impartiality, has been assigned the function to decide whether a Member has incurred disqualification or not under Schedule X. Para 84 and 86 of the said judgment in Jagjit Singh''s case (supra) run as under:

Before parting, another aspect urged before us deserves to be considered. However, at the outset, we do wish to state that the Speaker enjoys a very high status and position of great respect and esteem in the parliamentary traditions. He, being the very embodiment of propriety and impartiality, has been assigned the function to decide whether a Member has incurred disqualification or not. In Kihoto Hollohan judgment various great Parliamentarians have been noticed pointing out the confidence in the impartiality of the Speaker and he being above all parties or political consideration. The high office of the Speaker has been considered as one of the grounds for upholding the constitutional validity of the Tenth Schedule in Kihoto Hollohan case.

Whether to vest such power in the Speaker or Election Commission or any other institution is not for us to decide. It is only for Parliament to decide. We have noted this aspect so that Parliament, if deemed appropriate, may examine it, bestow its wise consideration to the aforesaid views expressed also having regard to the experience of last number of years and thereafter take such recourse as it may deem necessary under the circumstances.

Meaning thereby, for the purpose of disqualification, if the petitioner is aggrieved, then, he is required to approach the Speaker of the Assembly in view of para 6 of the Tenth Schedule. The petitioner cannot invoke jurisdiction of this Court under Articles 226 and 227 of the Constitution of India. Admittedly, two petitions are pending before the Speaker, one filed by the BSP and, second, by a citizen and out of these two petitions, in one, counsel for the petitioner himself is represented. Therefore, if the petitioner is aggrieved, then, he can also file petition before the Speaker for the purpose of declaring those Assembly members disqualified to be members of the Assembly. Though neither of the parties drew attention of the Court towards specific bar upon the Courts to exercise jurisdiction in respect of any matter connected with the disqualification of a member; but, there is specific bar in para 7 of the Tenth Schedule to the Constitution. Para 7 of the Tenth Schedule explicitly bars jurisdiction of the Court which reads as under:

Bar of jurisdiction.-Notwithstanding anything in this Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.

In this view of the matter, while following the adjudication made by the Supreme Court in Jagjit Singh''s case (supra) and provisions made by the framers of the Constitution under the Tenth Schedule to the Constitution of India, the application filed by respondent No. 1 deserves to be allowed.

Consequently, while allowing the application filed by respondent No. 1, this writ petition is hereby dismissed with liberty to the petitioner to avail remedy before the Speaker of the Assembly who enjoys the jurisdiction for deciding question of disqualification of a Member of the Assembly.

The said order dated 18.12.2009 passed by the learned Single Judge has been challenged by the appellant/petitioner by way of present appeal on the ground that the Hon''ble Speaker was having no jurisdiction to pass the impugned order dated 09.04.2009 as per para 6(1) of Schedule X to the Constitution of India, which gives exclusive jurisdiction to the Speaker to decide the question of disqualification of a Member on the grounds of defection, more particularly, whether the Member has voluntarily given up the membership of his original political party, as provided in Para 2(1) of Schedule X to the Constitution of India and thereby incurred disqualification or not.

It is contended on behalf of the appellant that the law of the land in respect of exercise of jurisdiction vesting in Speaker stand settled by the Hon''ble Supreme Court in the case of Rajendra Singh Rana (supra).

Again much emphasize has been given by the learned Counsel for the appellant on paras 25 to 29 of the aforesaid judgment and after referring the aforesaid paras, learned Counsel for the appellant further submits that in view of the ratio decided by the Hon''ble Supreme Court it is established that the Hon''ble Speaker has passed the order dated 09.04.2009 without jurisdiction because as on 09.04.2009 it is clear from the order itself that there was no petition before him seeking disqualification of respondent Nos. 4 to 9. Further, the order was also violative of the constitutional provisions and as any order passed without jurisdiction is to be held illegal, void ab-initio.

Learned Counsel for the respective parties have referred para 2 of Schedule X to the Constitution of India, which speaks about Disqualification on ground of defection and the same reads as under:

Disqualification on ground of defection.-(1) Subject to the provisions of (paragraphs 4 and 5), a member of a House belonging to any political party shall be disqualified for being a member of the House

(a) if he has voluntarily gives 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 authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.

Explanation.-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 maybe, Article 188.

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

(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after 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.

(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fifty-second Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,

(i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;

(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.

Further para 4 of Schedule X to the Constitution of India provides for Disqualification on ground of defection not to apply in case of merger, which reads in the following terms:

Disqualification on ground of defection not to apply in case of merger.-(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, 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 sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only, if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

Learned Counsel appearing for the respondents also referred paras 6 and 7 of Schedule X to the Constitution of India, which read as follows:

Decision on questions as to disqualification on ground of defection.-(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:

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

(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.

Bar of jurisdiction of Courts.-Notwithstanding anything in this Constitution, no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.

It is submitted by the learned Counsel for the appellant that the order impugned passed by the Hon''ble Speaker dated 09.04.2009 is without jurisdiction.

By bare reading of sub-para (2) of para 4 of Schedule X to the Constitution of India, learned Counsel for the appellant submits that the merger of the original political party of a member of a House shall be deemed to have taken place if, and only, if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger and in the present case, the original party BSP has not agreed to such merger into Indian National.