G. Viswanathan
Vs. The Hon'ble Speaker Tamil Nadu Legislative Assembly, Madras [1996] INSC 132 (24 January 1996)
Ahmadi
A.M. (Cj) Ahmadi A.M. (Cj) Paripoornan, K.S.(J) Ahmadi, Cji
CITATION:
1996 AIR 1060 1996 SCC (2) 353 JT 1996 (1) 607 1996 SCALE (1)531
ACT:
HEAD NOTE:
AND
CIVIL APPEAL NOS. 2271-72 OF 1996 (Arising out of SLP (Civil) Nos. 24585-24586
of 1995) Azhagu Thirunavukkarasu V. The Hon'ble Speaker Tamil Nadu Legislative
Assembly, Madras & Another
Special
leave granted.
The
appellants are two members of the Tamil Nadu Legislative Assembly elected in
the general elections held in 1991. Both of them were candidates set up by All
India Anna Dravida Munnetra Khazhagam (for short `AIADMK'). Mr. Viswanathan was
elected from Arcot Legislative Assembly constituency whereas Mr. Azhaagu Thirunavukkarasu
was elected from Orathanadu constituency. Both of them were expelled from Orathanadu
constituency. Both of them were expelled from AIADMK party of January 8, 1994. On March 16, 1994 the Speaker of Tamil Nadu Legislative Assembly (for short
`Assembly') declared the two appellants as `unattached' members of the
Assembly. Enclosing certain papers and other documents one Subburethinam,
Member of the Assembly, informed the Speaker that both the appellants have joined
another (new) party called Maru Malarchi Dravida Munnetra Khazhagam (`MDMK' for
short) and hence they should, as per the provisions of law, be disqualified
from the membership of the Assembly issued a notice under Section 7 of the
Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986, and
called for the comments of the appellants on the representation made by Subburethinam
to disqualify them. The appellants filed Write Petitions Nos.3562 and 3563/95
in the High Court of Judicature at Madras and assailed the said notice of the Secretary of the Assembly, dated March 6, 1995. Sivaraj Patil, J. by order dated March 10, 1995 dismissed the writ petitions with
the following observations:
"Having
regard to the law declared by the Apex Court, I do not think it is appropriate to entertain these writ petitions.
The Learned Senior Counsel for the Petitioner submitted that on similar
questions this court has already entertained two writ petitions by the same
petitioners in W.P. No. 5349 of 1994 and 5496 of 1994. When specifically asked,
the learned Senior Counsel fairly submitted that as on the date when the
earlier writ petitions were filed the petitioners were only unattached members
having been expelled from the party and did not join other political party, but
as on today, they have joined some other political party. Be that as it may, in
the light of the judgment of the Supreme Court aforementioned, I am not
inclined to entertain these writ petitions." (Emphasis supplied)
Thereafter, the appellants filed representations before the Speaker, Tamil Nadu
Legislative Assembly, stating they were "unattached members" of the
Assembly and so the provisions of the Tenth Schedule of the Constitution of
India regarding disqualifications did not apply to them.
They
also prayed that the preliminary question as to whether the Tenth Schedule of
the Constitution would apply to them, they being unattached members, may be
adjudicated in the first instance. The Speaker considered the entire matter in
detail and disposed of the same by separate but similar orders dated April 20, 1995. In paragraph 14 thereof, the
Speaker stated thus:
"14.
The admitted relevant facts which are necessary for determination of the issues
raised are as follows:-
A.
That the Respondent contested as an official candidate of All India Anna Dravida
Munnetra Khazhagam party from (Arcot) Orathandu Constituency.
B.
That he was expelled from All India Anna Dravida Munnetra Khazhagam party for
anti-party activities.
C.
That he had been declared as an `unattached' member by a ruling dated 16.3.1994
as per the convention and not as per the Tenth Schedule or the relevant rules
made by that Act.
D.
That he had joined another political party, viz., Marumalarchi Dravida Munnetra
Khazhagam." Discussing the matter in detail, the Speaker construed,
paragraphs 2(1), 2(2) and Explanation (a) to sub-paragraph (1) of paragraph 2
of the Tenth Schedule and held that if a person is set up as a candidate for
election by a political party and gets elected, he must be deemed always to
belong to the same party from which he was elected and if he joins another
political party, it would amount to voluntarily giving up his membership of
such political party and will become subject to disqualification under
sub-paragraph (1)(a). In the light of the admitted facts and the view of law
held by him, particularly in view of the fact that the appellants had not
denied in their explanation that they had joined a new party, the Speaker in
paragraph 20 of the said order, entered the following findings:
"1.
that he got elected to the Tamil Nadu Legislative Assembly as a candidate set
up by a political party (viz.) All India Anna Dravida Munnetra Khazhagam
(A.I.A.D.M.K.),
2.
that for the purpose of Tenth Schedule, he shall be deemed to belong to the
Political Party, i.e., All India Anna Dravida Munnetra Khazhagam (A.I.A.D.M.K.)
in accordance with the explanatory note of Sub-para 2(1)(a), though he had been
expelled from that party and declared as an `unattached' member by me,
3. that
he has joined another Political Party, viz., Marumalarchi Dravida Munnetra Khazhagam,
4. that
he has not denied any of the contents (sic) of the petitioner as alleged in the
petition, and
5. that
he does not come under the purview of the exception, envisaged in Paragraph 3
and 4 of the tenth Schedule." It was held that the appellants had incurred
disqualification for being members of the Tamil Nadu Legislative Assembly under
Article 191(2) of the Constitution of India read with clause (a) of sub-para
(1) of Paragraph 2 of Tenth Schedule and had ceased to be members of the
Assembly with immediate effect.
The
appellants filed writ petitions Nos.6331 and 6332/95 and assailed the aforesaid
order of the Speaker dated 20th April, 1995.
They also filed CMP Nos. 10261 and 10262/95, praying for the grant of ad
interim injuction to restrain the Speaker from giving effect to the aforesaid
order. Though initially an order of injunction was passed, the learned Single
Judge vacated the injunction by his order dated April 26, 1995 and dismissed
the CMPs. Aggrieved by the orders vacating interim injunction, the appellants
filed Writ Appeals Nos.559 and 560 of 1995. A Division Bench of the High Court
noticing that the writ appellants and the writ petitions raised the same issues,
heard them together and disposed them of by a common judgment dated September 29, 1995. The Division Bench saw no merit,
whatsoever, in the writ petitions and the writ appeals and dismissed them.
It is
against the said common judgment of the High Court, that the appellants have
filed the present appeals by special leave.
We
heard Mr. Shanti Bhushan, Senior Counsel, for the appellants and Mr. Soli J. Sorabjee,
Senior Counsel, for the respondents. The main thrust of the submissions made by
appellants' Counsel was that Paragraph 2(a) of the Tenth Schedule of the
Constitution comes into play only to disqualify a member who voluntarily gives
up his membership of the political party that had set him up as a candidate,
and not when he is expelled from the party and declared "unattached"
i.e., not belonging to any political party.
Paragraph
2(a) will apply only when a member himself of his own volition gives up his
membership of the party. Any member thrown out or expelled from the party that
had set him up as a candidate, will not fall within the mischief of paragraph 2
(a). By expulsion, the member thrown out will `cease' to be a member of the
party that set him up as a candidate and even if he joins another party
thereafter, it will not be a case of `voluntarily' giving up his membership of
the political party that had set him up as a candidate for the election. On the
other hand, Counsel for the respondents, Mr. Soli J. Sorabjee, submitted that
the Tenth Schedule of the Constitution should be interpreted strictly, and
keeping in view the mischief sought to be prevented by enacting the law, it is
evident that though expulsion by the political party that had set up a person
as a candidate by itself may not attract paragraph 2(1)(a), the further act of
his joining another party amounts to `voluntarily giving up' the membership of
the political party that had set him up as a candidate. Learned Counsel
submitted that the deeming provision contained in the explanation should be
given full effect and in the light of the finding that the appellants had
joined another political party, the High Court was justified in confirming the
conclusion of the Speaker that the appellants had voluntarily given up their
membership of the political party that had set them up as candidates and had
thereby incurred the disqualification for being members of the Assembly under
Article 191(2) of the Constitution read with clause (a) of sub-paragraph (1) of
paragraph 2 of the Tenth Schedule.
Before
we proceed further, we may notice the relevant provisions of the Constitution.
Article 190 deals with `vacation of seats' and Article 191 speaks of
`Disqualifications for membership'. The relevant parts of the said two articles
with which we are concerned read as under:
"190.
(1) ................
(2)
................
(3) If
a member of a House of the Legislature of a State - (a) becomes subject to any
of the disqualifications mentioned in clause (1) of article 191; or
................." "191. (1) A person shall be disqualified for being
chosen as, and for being, a member of the Legislative Assembly or Legislative
Counsel of a State - (a) .............
(b)
.............
(c)
.............
(d)
.............
(e) if
he is so disqualified by or under any law made by Parliament - (2) A person
shall be disqualified for being a member of the Legislative Assembly or
Legislative Council of a State if he is so disqualified under the Tenth
Schedule." Tenth Schedule "1. Interpretation. In this Schedule,
unless the context otherwise requires, - (a) "House" means either
House of Parliament or the Legislative Assembly or, as the case may be, either
House of the Legislature of a State;
(b)
"legislative party", in relation to a member of a House belonging to
any political party in accordance with the provisions of paragraph 2 or
paragraph 3 or, as the case may be, paragraph 4, means the group consisting of
all the members of the House for the time being belonging to that political
party in accordance with the said provisions;
(c)
"original political party", in relation to a member of a House, means
the political party to which he belongs for the purposes of sub-paragraph (1)
of paragraph 2;
(d)
"paragraph" means a paragraph of this Schedule.
2.
Disqualification on ground of defection. (1) Subject to the provisions of
paragraphs 3, 4 and 5, a member of a House belonging to any political party
shall be disqualified for being a member of the House - (a) if he has
voluntarily given up his membership of such political party; or (b) ..........
Explanation. For the purposes of this sub-paragraph,
-
(a) an
elected member of a House shall be deemed to belong to the political party, if
any, by which he was set up as a candidate for election as such member,
(b) a
nominated member of a House shall,
(i) where
he is a member of any political party on the date of his nomination as such
member, be deemed to belong to such political party;
(ii)
in any other case, be deemed to belong to the political party of which he
becomes, or, as the case may be, first becomes, a member before the expiry of
six months from the date on which he takes his seat after complying with the
requirements of article 99 or, as the case may be, article 188.
(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." The crucial point raised
in these appeals centres round the interpretation to be placed on paragraph 2(1)(a)
read with the explanation thereto of the Tenth Schedule. Does a member of a
House, belonging to a political party, become disqualified as having
voluntarily given up his membership of such political party on his joining
another political party after his expulsion from the former? The legislative
background for enacting the law affords a key for an understanding of the
relevant provisions. What impelled the Parliament to insert the Tenth Schedule
can be seen from the Statement of Objects and Reasons appended to the Bill
which ultimately resulted in the Constitution (Fifty-Second Amendment) Act,
1985, quoted in the decision, Kihoto Hollohan v. Zachillhu and Others, 1992
Supp. (2) SCC 651 (668). It is to the following effect:
"The
evil of political defections has been a matter of national concern. If it is
not combated, it is likely to undermine the very foundations of our democracy
and the principles which sustain it. With this object, an assurance was given
in the Address by the President to Parliament that the government intended to
introduce in the current session of Parliament an anti- defection Bill. This
Bill is meant for outlawing defection and fulfilling the above assurance."
When the constitutionality of the above provisions was challenged, this Court,
after referring to paragraphs 2, 3 and 4 of the Tenth Schedule of the
Constitution stated in Kihoto Hollohan (supra), as under:
"These
provisions in the Tenth Schedule give recognition to the role of political
parties in the political process. A political party goes before the electorate
with a particular programme and it sets up candidates at the election on the
basis of such programme. A person who gets elected as a candidate set up by a
political party is so elected on the basis of the programme of that political
party. The provisions of paragraph 2(1)(a) proceed on the premise that
political propriety and morality demand that if such a person, after the
election, changes his affiliation and leaves the political party which had set
him up as a candidate at the election, then he should give up his membership of
the legislature and go back before the electorate. The same yardstick is
applied to a person who is elected as an Independent candidate and wishes to
join a political party after the election." (Emphasis supplied) The scope
of the legal fiction enacted in the explanation (a) to paragraph (2)(1) of the
Tenth Schedule assumes importance in this context. By the decision of this
Court it is fairly well settled that a deeming provision is an admission of the
non-existence of the fact deemed. The Legislature is competent to enact a
deeming provision for the purpose of assuming the existence of a fact which
does not even exist. It means that the Courts must assume that such a state of
affairs exists as real, and should imagine as real the consequences and
incidents which inevitably flow therefrom, and give effect to the same.
The
deeming provision may be intended to enlarge the meaning of a particular word
or to include matters which otherwise may or may not fall within the main
provision. the law law laid down in this regard in East End Dwellings Co. Ltd.
case (1952 AC 109 + 1951 (2) All. E.R. 587) has been followed by this Court in
a number of cases, beginning from State of Bombay v. Pandurang (AIR 1953 SC
244) and ending with a recent decision of a three Judge Bench in M. Venugopal
v. Divisional Manager (1994 (2) SCC 323). N.P. Singh, J., speaking for the
Bench, stated the law thus at page 329:
"The
effect of a deeming clause is well- known. Legislature can introduce a
statutory fiction and courts have to proceed on the assumption that such state
of affairs exists on the relevant date. In this connection, one is often
reminded of what was said by Lord Asquith in the case of East End Dwellings Co.
Ltd. V. Finsbury Borough Council that when one is bidden to treat an imaginary
state of affairs as real, he must surely, unless prohibited from doing so, also
imagine as real the consequences and incidents which inevitably have flowed
from it - one must not permit his "imagination to boggle" when it
comes to the inevitably corollaries of that state of affairs." It appears
that since the explanation to paragraph 2(1) of the Tenth Schedule provides
that an elected member of a House shall be deemed to belong to the political party,
if any, by which he was set up as a candidate for election as such member, such
person so set up as a candidate and elected as a member, shall continue to
belong to that party.
Even
if such a member is thrown out or expelled from the party, for the purposes of
the Tenth Schedule he will not cease to be a member of the political party that
had set him up as a candidate for the election. He will continue to belong to
that political party even if he is treated as `unattached'. The further
question is when does a person `voluntarily give up' his membership of such
political party, as provided in paragraph 2(1)(a)? The act of voluntarily
giving up the membership of the political party may be either express or
implied. When a person who has been thrown out or expelled from the party which
set him up as sa candidate and got elected, joins another (new) party, it will
certainly amount to his voluntarily giving up the membership of the political
party which had set him up as a candidate for election as such member.
We are
of the view that labelling of a member as `unattached' finds no place nor has
any recognition in the Tenth Schedule. It appears to us that the classification
of the members in the Tenth Schedule proceeds only on the manner of their entry
into the House,
(1) one
who has been elected on his being set up by a political party as a candidate
for election as such member;
(2)
one who has been elected as a member otherwise than as a candidate set up by
any political party - usually referred to as an `independent' candidate in an
election; and
(3) one
who has been nominated.
The
categories mentioned are exhaustive. In our view, it is impermissible to invent
a new category or clause other than the one envisaged or provided in the Tenth
Schedule of the Constitution. If a person belonging to a political party that
had set him up as a candidate, gets elected to the House and thereafter joins
another political party for whatever reasons, either because of his expulsion
from the party or otherwise, he voluntarily gives up his membership of the
political party and incurs the disqualification. Being treated as `unattached'
is a matter of mere convenience outside the Tenth Schedule and does not alter
the fact to be assumed under the explanation to paragraph 2(1). Such an
arrangement and labelling has no legal bearing so far as the Tenth Schedule is
concerned. If the contention urged on behalf of the appellant is accepted it
will defeat the very purpose for which the Tenth Schedule came to be introduced
and would fail to suppress the mischief, namely, breach of faith of the
electorate. We are, therefore, of the opinion that the deeming fiction must be
given full effect for otherwise the expelled member would escape the rigor of
the law which was intended to curb the evil of defections which had polluted
our democratic polity.
Mr. Shanti
Bhushan laid stress on paragraph 1(b) of the Tenth Schedule and contended that
the Legislative Party in relation to a member of a House belonging to any
political party means the group consisting of all the members of that House for
the time being belonging to that political party, and so understood, the
appellants who were thrown out or expelled from the party, did not belong to
that political party nor will they be bound by any whip given by that party,
and so, they are unattached members who did not belong to any political party,
and in such a situation the deeming provision in sub-paragraph (a) of the
explanation to paragraph 2(1) will not apply. We are afraid it is nothing but
begging the question. Paragraph 1(b) cannot be read in isolation. It should be
read along with paragraphs 2,3 and
4.
Paragraph 1(b) in referring to the Legislative Party in relation to a member of
a House belonging to any political party, refers to the provisions of
paragraphs 2,3 and 4, as the case may be, to mean the group consisting of all
members of that House for the time being belonging to that political party in
accordance with the said provisions, namely, paragraphs 2,3 and 4, as the case
may be. Paragraph 2(1) read with the explanation clearly points out that an
elected member shall continue to belong to that political party by which he was
set up as a candidate for election as such member. This is so notwithstanding
that he was thrown out or expelled from that party. That is a matter between
the member and his party and has nothing to do so far as deeming clause in the
Tenth Schedule is concerned. The action of a political party qua its member has
no significance and cannot impinge on the fiction of law under the Tenth
Schedule. We reject the plea solely based on clause 1(b) of the Tenth Schedule.
Our
Attention was drawn to the decision of this Court in Ravi S. Naik v. Union of
India and Others, (1994) Supp.(2) SCC 641. In the said decision, paragraph 2(1)(a)
of the Tenth S schedule of the Constitution was construed and it is observed at
page 649 thus:
"The
said paragraph provides for disqualification of a member of a House belonging
to a political party "if he has voluntarily given up his membership of such
political party." The words "voluntarily given up his
membership" are not synonymous with "resignation" and have a
wider connotation. A person may voluntarily give up his membership of a
political party even though he has not tendered his resignation from the
membership of that party. Even in the absence of a formal resignation from
membership an inference can be drawn from the conduct of a member that he has
voluntarily given up his membership of the political party to which he
belongs." (Emphasis supplied) If he of his own volition joins another
political party, as the appellants did in the present case, he must be taken to
have acquired the membership of another political party by abandoning the
political party to which he belonged or must be deemed to have belonged under
the explanation to paragraph 2(1) of the Tenth Schedule. Of course, courts
would insist on evidence which is positive, reliable and unequivocal.
For
the aforesaid reasons, We hold that the judgment of the High Court declining to
interfere with the order of the disqualification passed by the Speaker, Tamil Nadu
Legislative Assembly, calls for no interference in these appeals. The appeals
are dismissed with costs. Each appellant to pay the costs in separate sets.
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