|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.469 OF 2013
(Arising out of SLP(C)No.35000 of 2012)
1 Speaker, Orissa Legislative Assembly … APPELLANT
Vs.
2 Utkal Keshari Parida …
RESPONDENT
WITH
CIVIL APPEAL NOS.470, 471 & 472 OF 2013
(Arising out of SLP(C)Nos.35023, 35024 and 35025
of 2012)
J U D G M E N T
ALTAMAS KABIR, CJI.
1. Leave granted.
2. These Appeals raise an interesting issue relating to the powers of
the Speaker of the Orissa Legislative Assembly under Rule 6(1) and (2) of
the Members of Orissa Legislative Assembly (Disqualification On Ground Of
Defection) Rules, 1987, hereinafter referred to as "the 1987 Rules", in the
wake of paragraphs 2(1)(a) and 8 of the Tenth Schedule to the Constitution
of India and are taken up together for disposal.
The facts giving rise to
the said legal question are set out hereinbelow.
3. The Appellant herein is the Speaker of the Orissa Legislative
Assembly.
There were four elected members of the National Congress Party
(NCP) in the Orissa Legislative Assembly.
All the said four elected
members of the NCP joined the Biju Janata Dal (BJD), which is the Ruling
Party in the State of Orissa.
On account of such defection, Respondent,
Shri Utkal Keshari Parida, who is the President of the State Unit of the
NCP in the State of Orissa, filed four separate Disqualification Petitions
before the Appellant for disqualification of the said four elected members
of the NCP.
The Disqualification Petitions were placed before the
Appellant on 24.07.2012 and copies thereof were forwarded to the concerned
Members of the Legislative Assembly, in terms of Rule 7(3) of the 1987
Rules.
4. Inasmuch as, the matter was being delayed, the Respondent filed Writ
Petition (C) No. 14869 of 2012, before the Orissa High Court, inter alia,
for a direction to the Speaker of the Assembly to dispose of the
Disqualification Petitions expeditiously.
Before the Division Bench of the
said High Court, an objection was taken regarding the maintainability of
the Writ Petition at the instance of the Respondent, who though being the
President of the State Unit of the NCP, was not a Member of the Legislative
Assembly, in view of the provisions of Sub-rule (2) of Rule 6 of the 1987
Rules. Rule 6 of the 1987 Rules, which is relevant for our purpose, is
extracted hereinbelow:
"6 (1) No reference of any question as to whether a Member
has become subject to disqualification under the Tenth Schedule
shall be made except by a petition in relation to such Member
made in accordance with the provisions of this rule.
(2) A petition in relation to a Member may be made in writing
to the Speaker by any other Member:
Provided that a petition in relation to the Speaker shall
be addressed to the Secretary.
(3) The Secretary shall:-
(a) as soon as may be after the receipt of a petition under the
proviso to sub-rule (2) make a report in respect thereof to the
House ; and
(b) as soon as may be after the House has elected a Member in
pursuance of the proviso to sub-paragraph (1) of paragraph 6 of
the Tenth Schedule place the petition before such Member.
(4) Before making any petition in relation to any Member, the
petitioner shall satisfy himself that there are reasonable
grounds for believing that a question has arisen as to whether
such Member has become subject to disqualification under the
Tenth Schedule.
(5) Every petition:
(a) shall contain a concise statement of the material
facts on which the petitioner relies; and
(b) shall be accompanied by copies of the documentary evidence,
if any, on which the petitioner relies and where the petitioner
relies on any information furnished to him by any person, a
statement containing the names and addresses of such persons and
the gist of such information as furnished by each such person.
(6) Every petition shall be signed by the petitioner and
verified in the manner laid down in the Code of Civil Procedure,
1908 (5 of 1908), for the verification of pleadings.
(7) Every annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition."
5. Relying on the interpretation of the aforesaid Rule in the judgment
delivered by this Court in Dr. Mahachandra Prasad Singh v. Chairman, Bihar
Legislative Council and Others, [(2004) 8 SCC 747], the High Court came to
the conclusion that the Writ Petition was maintainable at the instance of
the Respondent herein. While arriving at such conclusion, the High Court
also took into consideration the decision in Kihoto Hollohan v. Zachillhu
and Others, [1992 Supp (2) SCC 651] and the provisions of Article 191 read
with paragraph 2 of the Tenth Schedule to the Constitution of India.
6. Interpreting the provisions of Rule 6 of the 1987 Rules, the High
Court also took into consideration the judgment of this Court in Rajendra
Singh Rana and Others v. Swami Prasad Maurya and Others, [(2007) 4 SCC
270], in which reference had been made to another decision in the case of
Prakash Singh Badal v. Union of India, [AIR 1987 P&H 263]. On a
consideration of the said two decisions and the other decisions already
referred to hereinbefore, the High Court came to the conclusion that it was
abundantly clear that if any Member of the House belonging to a political
party had joined another political party, which is a disqualification under
paragraph 2(1) of the Tenth Schedule, any person interested could make a
reference to the Speaker under Rule 6 of the 1987 Rules and it was not
necessary that such a reference had to be made by a Member of the
Legislative Assembly. On its aforesaid finding, the High Court rejected
the contentions made on behalf of the Appellant and held that the same were
maintainable under Rule 6 of the 1987 Rules.
7. This Appeal has been preferred by the Speaker of the Orissa
Legislative Assembly questioning the aforesaid decision of the High Court.
8. Appearing in support of the Appeals, Mr. K.K. Venugopal, learned
Senior Advocate, submitted that the High Court had wrongly interpreted the
provisions of Sub-rules (1) and (2) of Rule 6 of the 1987 Rules in arriving
at the erroneous conclusion that the Disqualification Petitions under Rules
6 and 7 of the 1987 Rules could be made not only by Members of the House,
but by any interested person also. Mr. Venugopal urged that the language
of Sub-rule (2) of Rule 6 of the 1987 Rules clearly indicates that it is
only a Member of the House, who in relation to a petition for
disqualification of another Member, could apply to the Speaker. Mr.
Venugopal urged that giving any other interpretation to the said provisions
would do violence to and be contrary to the intention contained in Rule 6
of the 1987 Rules. Mr. Venugopal urged that after the impugned judgment was
delivered by the High Court, the matter was referred by the Speaker to the
Committee of Privileges of the House on 15.10.2012 under Rule 7(4) of the
1987 Rules. The meeting of the said Committee was convened on 22.12.2012,
but no business could be conducted in the meeting on account of lack of
quorum.
9. On 2.1.2013, a meeting of the Committee of Privileges was convened to
finalise the modalities for hearing of the Disqualification Petitions filed
on behalf of the Respondent. However, before the matter came to be decided
by the Committee of Privileges, the Special Leave Petition was filed to set
aside the judgment of the Division Bench of the Orissa High Court holding
that the Disqualification Petitions were maintainable at the instance of a
non-Member of the House.
10. Mr. Venugopal urged that in the light of the explicit language used
in Sub-rule (2) of Rule 6 of the 1987 Rules, framed by the Speaker of the
Assembly under paragraph 8 of the Tenth Schedule to the Constitution, the
High Court was clearly wrong in interpreting the said provisions so as to
allow an application for disqualification of a Member of the House to be
made by a person who was not a Member thereof. Mr. Venugopal submitted
that the Order of the High Court was contrary to the provisions of law and
was liable to be set aside.
11. On the other hand, Mr. Amarendra Sharan, learned Senior Advocate, who
appeared for the sole Respondent who had made the application for
disqualification of the four Members before the Speaker, submitted that the
four MLAs who had been elected on the nomination of the NCP, joined the
Biju Janata Dal on 5.6.2012, without giving any prior notice of their
intention to do so and that they had voluntarily given up the membership of
the NCP by joining the BJD, thereby incurring disqualification as Members
of the Assembly under paragraph 2(1)(a) of the Tenth Schedule to the
Constitution.
12. Mr. Sharan also submitted that the action of the said four MLAs did
not amount to a merger of the NCP Legislature Party with the Biju Janata
Dal on account of the fact that a merger could only be of a political
party with any other political party. Mr. Sharan submitted that the
legislature party of a political party by itself had no authority or power
to merge with any other political party, without the merger of its original
political party. In such circumstances, the provisions of paragraph 2(1)(a)
of the Tenth Schedule to the Constitution were squarely attracted to the
facts of this case and the same had merely to be brought to the notice of
the Speaker for him to hold that the said four MLAs stood disqualified from
the membership of the House.
13. On the question of the locus standi of the Respondent to maintain the
writ petition in his capacity as the President of the State unit of the NCP
in the State of Orissa, Mr. Sharan submitted that the said question was no
longer res integra in view of the decision rendered by this Court in the
case of Dr. Mahachandra Prasad Singh (supra), in which reference had been
made to a Full Bench decision of the Punjab and Haryana High Court in the
case of Prakash Singh Badal (supra). Mr. Sharan submitted that the Full
Bench of the Punjab & Haryana High Court had considered the question, which
has also arisen in this case, and it had held that paragraph (2)(1)(a) of
the Tenth Schedule did not contemplate or visualize that the
disqualification incurred by a Member of the House would have to be brought
to the notice of the Speaker only by a Member of the House. Mr. Sharan
submitted that the Full Bench had also indicated that in relation to
paragraph 6 of the Tenth Schedule, the only prerequisite is the existence
of a question of disqualification of a Member. Such a question could be
raised before the Speaker by an interested person for declaring that the
said Member stood disqualified from being a Member of the House. It was in
that context that in the instant case the Speaker had held that when any
Member belonging to a political party joined another political party, which
amounted to disqualification under paragraph 2(1)(a) of the Tenth Schedule,
any person interested could make a reference to the Speaker under Rule 6
and it was not necessary that such reference would have to be made only by
a Member of the Legislative Assembly. Mr. Sharan submitted, that as
indicated by this Court in Dr. Mahachandra Prasad Singh's case, as
President, NCP, the Respondent had the locus standi to maintain his
application, both before the Speaker, as well as before the High Court.
14. Mr. Sharan submitted that any other interpretation given to the
provisions of paragraph 2(1)(a) read with Rule 6 (1) and (2) of the 1987
Rules, would defeat the very object and purpose of the Tenth Schedule to
the Constitution.
15. On a consideration of the submissions made on behalf of the
respective parties, we are unable to agree with the interpretation sought
to be given by Mr. Venugopal to the provisions of Rule 6 of the 1987 Rules
read with paragraph 2(1)(a) of the Tenth Schedule to the Constitution on
the question of locus standi of the Respondent, as the President of the
State unit of the National Congress Party in the State of Orissa, to file
the application seeking disqualification of the four Members of the
National Congress Party who had switched their loyalties to the Biju Janata
Dal.
16. Although, paragraph 8 of the Tenth Schedule vests the Speaker of the
House with powers to make rules for giving effect to the provisions of the
Tenth Schedule, the Rules framed under such powers would amount to
delegated legislation which cannot override the substantive provisions of
the Constitution contained in the Schedule itself. The provisions of Sub-
Rules (1) and (2) of Rule 6 of the 1987 Rules cannot override the
provisions of paragraph 2(1)(a) of the Tenth Schedule to the Constitution
or for that matter, paragraph 6 which vests the Speaker of the House with
the authority to decide the question as to whether a Member of a House had
become subject to disqualification under the Schedule. Although, Rule 6(2)
of the 1987 Rules provides that a petition in relation to a Member for the
purposes of Sub-Rule (1) may be made in writing to the Speaker by any other
Member, such a provision is neither contemplated nor provided for in the
Tenth Schedule itself. As has been submitted by Mr. Amarendra Sharan,
learned Senior Advocate for the Respondent, in a case such as this, where
all the four Members elected to the Assembly from the National Congress
Party had changed their allegiance from the National Congress Party to the
Biju Janata Dal, there would be no one to bring such fact to the notice of
the Speaker and ask for disqualification of the said Members who clearly
stood disqualified under the provisions of the Tenth Schedule. In other
words, although, disqualified under paragraph 2(1)(a) of the Tenth
Schedule, in the absence of any application for disqualification to the
Speaker, they would continue to function as Members of the Assembly, which
was not the intent of or the object sought to be achieved by the 52nd
Amendment by which the Tenth Schedule was introduced in the Constitution.
17. The Statement of Objects and Reasons of the Bill, which finally
became the Constitution (52nd Amendment) Act, 1985, whereby the Tenth
Schedule was added to the Constitution with effect from 1st March, 1985,
inter alia, indicated that the evil of political defection had become a
matter of national concern and if it was not checked, it could very well
undermine the very foundation of our democracy and the principles which
sustain the same. In such event, if the provisions of the Tenth Schedule
are interpreted to exclude the right of any person interested to bring to
the notice of the Speaker of the House the fact that any or some of its
Members had incurred disqualification from the membership of the House on
any of the eventualities indicated in paragraphs 2 and 4 therein, it would
render the inclusion of the Tenth Schedule to the Constitution otiose and
defeat the objects and intent of the 52nd Amendment of the Constitution.
18. The conundrum presented on account of the provisions of the Tenth
Schedule in addition to Rules 6(1) and (2) of the 1987 Rules had fallen for
consideration in Dr. Mahachandra Prasad Singh's case (supra). Speaking for
the Bench, G.P. Mathur, J. (as His Lordship then was), observed in
paragraph 16 of the judgment that the purpose and object of the Rules
framed by the Chairman in exercise of power conferred by paragraph 8 of
the
Tenth Schedule was to facilitate the Chairman in discharging his duties and
responsibilities in resolving any dispute as to whether the Member of the
House had become subject to disqualification under the Tenth Schedule. It
was also observed that the Rules being in the domain of procedure, were
intended to facilitate the holding of an inquiry and not to frustrate or
obstruct the same by the introduction of innumerable technicalities. Being
subordinate legislation, the Rules could not make any provision which could
have the effect of curtailing the content and scope of the substantive
provision, namely, the Tenth Schedule.
19. The aforesaid observation is precisely what we too have in mind, as
otherwise, the very object of the introduction of the Tenth Schedule to the
Constitution would be rendered meaningless.
The provisions of Sub-rules (1) and (2) of Rule 6 of the 1987 Rules have,
therefore, to be read down to make it clear that not only a Member of the
House, but any person interested, would also be entitled to bring to the
notice of the Speaker the fact that a Member of the House had incurred
disqualification under the Tenth Schedule to the Constitution of India. On
receipt of such information, the Speaker of the House would be entitled to
decide under paragraph 6 of the Tenth Schedule as to whether the Member
concerned had, in fact, incurred such disqualification and to pass
appropriate orders on his findings.
20. We, accordingly, dismiss all the appeals and uphold the judgment of
the High Court impugned therein.
21. In the facts and circumstances of the case, there will be no order as
to costs.
...................CJI.
(ALTAMAS KABIR)
.....................J.
(J. CHELAMESWAR)
.....................J.
(VIKRAMAJIT SEN)
New Delhi
Dated: January 17, 2013.
