Case: Mayawati  Vs. Markandeya Chand and Ors.

M.M. Punchhi, C.J. 1. I have bestowed great care in reading the two elaborate but sharply cleaving draft Judgments prepared by my learned brethren, K.T. Thomas, J. and M. Srinivasan, J. resting on the provisions contained in the Tenth Schedule of the Constitution. I need to emphasise at the outset, in the context above, the importance of recording of events which take place in the House, which means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of State, because Clause (b) of Paragraph 3 provides that from the time of such split, such faction shall deeming become the political party. The Speaker/Chairman in the nature of his role when informed of a spilt is administratively the time keeper and he has to be definite in respect of the time of such split. Or is there any scope for procrastination? He is the Tribunal undoubtedly for quasi-judicial purpose. 2. In Kihoto Hollohan v. Zachillhu and Ors., [1992] 1 SCR 686 , the majority, in Paragraph 109, has summed up the nature of the function exercised by the Speaker/Chairman under Paragraph 6(1) to be that of a Tribunal and the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 to be confining to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. The question however as to whether a Member of the House has become subject to disqualification must arise for decision under Paragraph 6(1) of the Tenth Schedule only on its being referred for decision of the Speaker/Chairman and not on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is not to apply to a case of split. Is not the cognition of the Speaker/Chairman of the occurrence of split not administrative in nature, unconnected with decision making on disqualification or is it an adjunct thereto? Kihoto Hollohan is silent on this aspect. If the act of cognising the time of such split is the administrative function of the Speaker/Chairman, the scope of judicial review of the said administrative act would, to my mind, be qualitatively different than what it is when testing his quasi-judicial order as a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 of the report, apparently confines to decision making by the Speaker/Chairman in Paragraph 6(1) on reference of the question of disqualification, inviting his decision, and leaves his role under Paragraph 3 untouched. These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of the Speakers decision, obligating -him at a point of time to record categorically when the split took place thereby pinning the time of such split. I opine therefore that the matter be referred to the Constitution Bench for decision. K.T. Thomas, J. 3. Leave granted. 4. Twelve MLAs of Bahujan Samaj Party (BSP for short) crossed floor of the House in the Legislative Assembly of the State of Uttar Pradesh (UP) and voted in favour of a motion of confidence moved by the Chief Minister of the State. Soon thereafter all those twelve MLAs were made Ministers in the State cabinet headed by Chief Minister Shri Kalyan Singh. Appellant (Ms. Mayawati) who is the leader of BSP Legislature Party complained that the twelve MLAs who defected (they are arrayed as respondents in this appeal) have incurred disqualification for membership of the Assembly. The Speaker of the Assembly, by the impugned order, exonerated the respondents from the tentacles of disqualification envisaged in the Xth Schedule to the Constitution of India. Hence this appeal by special leave. 5. There is no need to elaborate on the facts as they, by themselves, are compendious. Elections held to the Uttar Pradesh Vidhan Sabha (Legislative Assembly) in 1996 resulted in a hung Assembly as no political party secured absolute majority. However, appellant Ms. Mayawati became Chief Minister of the State as her party consisting of 67 MLAs in the Assembly was supported by the MLAs belonging to Bhartiya Janata Party (BJP). But she demitted the office of Chief Minister on 29.9.1997 as per an understanding between the aforesaid two parties. On the next day Shri Kalyan Singh, leader of the BJP Legislature Party became Chief Minister on the assumption that BSP would support him. But contrary to the said assumption BSP withdrew support to Kalyan Singh Government on 17.10.1997. Kalyan Singh was thereupon directed by the Governor to prove that he enjoyed the support of majority MLAs in the Assembly. On 20.10.1997 the appellant Ms Mayawati issued a whip to all the MLAs of her party in the following terms. You are hereby informed that you should be present in the Session of the UP Legislative Assembly on 21.10.1997 from 11 A.M. till the end of the sitting and vote against the Motion of Confidence moved by the BJP Government. 6. On 21.10.1997 twelve MLAs from BSP (respondents) voted in favour of the motion of confidence moved by Shri Kalyan Singh. A violent pandemonium broke out inside the House in which a number of MLAs were assaulted by some other members and consequently no business could be transacted. On 24.10.1997 appellant filed a petition before the-Speaker Under Rule 7 of the Members of Uttar Pradesh Legislative Assembly (Disqualification on Grounds of Defection) Rules, 1987, which will hereinafter be referred to for convenience, as Disqualification Rules, for a declaration that the twelve respondents became disqualified as per Paragraph 2(1 )(b) of the Xth Schedule of the Constitution. When respondents took up the plea that they, along with some more MLAs, the total of which reached 23 in number, have formed themselves into a new political party by name Janatantrik Bahujan Samaj Party (for short JTBSP). Appellant thereupon moved for amendment of the petition on 5.12.1997 seeking incorporation of an additional ground for disqualification which is envisaged in Paragraph 2(1)(a) of the Xth Schedule. Additional written statement was filed by the respondents to the amended petition. 7. As the names of all the 23 MLAs who allegedly formed the split have not been furnished, the Speaker directed the respondents to file a list of such names by 29.1.1998. As they failed to give names on that day also, the Speaker gave another date as a last chance and posted it to 09.02.1998. But respondents failed to furnish the names of such MLAs even by that extended time, and instead again they pleaded for more time. On 25.2.1998 a list of 26 MLAs was furnished to the Speaker claiming that they were the MLAs who formed a split on 21.10.1997. 8. The speaker passed the impugned order holding that (1) respondents are not liable to be disqualified under Paragraph 2(1)(b) of the Xth Schedule on the syllogism that the person who issued the direction on 20-10-1997 is not proved to be an authorised person. (2) Such direction was superseded by another oral direction which was subsequently issued and hence no disqualification would visit on the ground of non-compliance with the former direction. (3) At any rate the whip issued on 20-10-1997 was ineffective since it was silent as to the consequences of its non-compliance. (4) Nor are the respondents liable to be disqualified under Paragraph 2(1 )(a) of the Xth Schedule because they belong to a faction which came into being as sequel to a split which arose in the BSP on 21-10-1997 consisting of not less than l/3rd of the total members of the Legislature Party of the BSP. 9. It would be advantageous to consider first whether the disqualification envisaged in sub-clause (a) of Paragraph 2(1) of the Xth Schedule should have visited the respondents because it is admitted by the respondents themselves that they ceased to be members of BSP from 21-10-1997 as they had formed a new political party (JTBSP). Such severance from BSP is sought to be protected from disqualification by seeking shelter under the umbrella of Paragraph 3 of the Xth Schedule which is extracted below: 3. Disqualification on ground of defection not to apply in case of split. Where a member of a House makes a claim that he and any other members of his Legislature party constitute the group representing a faction which has arisen as a result of the split in his original political party and such group consists of not less than one-third of the members of such Legislature party:- (a) he shall not be disqualified under sub-paragraph(i) of paragraph 2 on the ground- (i) that he has voluntarily given up his membership of his original political party; or (ii) that he has voted or abstained from voting in such House contrary to any direction issued by such party or by any person or authority authorised by it in that behalf without obtaining the prior permission of such party, person or authority and such voting or abstention has not been condoned by such party, person or authority within fifteen days from the date of such voting or abstention; and (b) from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this paragraph. 10. Two conditions are sine qua non for avoiding the disqualification when any member of the House voluntarily gives up membership of his original political party. First is that the member concerned should have made a claim that the split in the original Political Party has arisen resulting in the Constitution of a group in its Legislature Party representing a faction thereof. Second is that such group should consist of not less than l/3rd of the members of such Legislature Party. 11. In order to establish that the first condition has been fulfilled the first respondent (Shri Markandeya Chand) has made a statement in the House on 21-10-1997 that the split of BSP Legislature Party had arisen consisting of a group which represents a faction of not less than l/3rd of the members thereof. It appears that the Speaker has proceeded on the assumption that a claim has been made as provided in the said Paragraph. 12. Regarding the second condition the Speaker held that there was a split in the Bahujan Samaj Party on 21-10-1997 and a faction had arisen as a result of the split in the BSP and a group consisting of 26 BSP MLAs was constituted on 21-10-97 itself representing the faction which did arise and that group is known as Janatantrik BSP. 13. According to the respondents, the aforesaid finding being a finding of fact is not amenable to challenge as it was rendered by the Speaker of the Assembly on whom alone the jurisdiction is conferred to determine such disputed fact. 14. The scope of judicial scrutiny on matters pertaining to the decision of a Speaker passed under Paragraph 6 of the Xth Schedule has been elaborately considered by a Constitution Bench of this Court in Kihoto Hollohan v. Zachillhu and Ors., [1992] 1 SCR 686 . One of the grounds urged before the Constitution Bench in support of the plea that Xth Schedule is liable to be struck down as violative of basic features of the Constitution was that: the investiture of the determinative and adjudicative jurisdiction in the Speaker would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and, therefore, denies the imperative of an independent adjudicatory machinery. The Speaker is elected and holds office on the support of the majority party and is not required to resign his - membership of the political party after his election to the office of the Speaker. 15. Venkatachaliah, J (as the learned Chief Justice then was) has delved into the importance of the office of the Speaker and found that the Speaker holds a high, important and ceremonial office, he is the very embodiment of propriety and impartiality and he performs wide ranging functions including the performance of important functions of a judicial character, and observed thus: It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside. 16. Accordingly, the contention that vesting of adjudicatory functions in the Speaker would vitiate the provision on the ground of likelihood of political bias was rejected. 17. Paragraph 6 of the Xth Schedule renders the decision of the Speaker final. The Constitution Bench considered its validity in Kihoto Hollohan (supra). In the majority judgment it was held that the finality clause in Paragraph 6 does not completely exclude the jurisdiction of the court under Articles 136, 226 and 227 of the Constitution. Ultimately the Constitution Bench upheld the validity of the Xth Schedule subject to the aforesaid rider. However, the Bench further held that the scope of judicial scrutiny is limited to ascertain whether the decision of the Speaker is vitiated by jurisdictional errors viz. infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. 18. Shri Kapil Sibal, learned senior counsel who argued for the appellant focussed on the contention that the decision of the Speaker that on 21.10.1997 a split has arisen in the BSP comprising of more than 23 MLAs is vitiated by perversity. Of course learned counsel also contended that there was violation of constitutional mandate, and non-compliance with rules of natural justice. But ultimately the stress of the attack was confined to the ground of perversity. According to the counsel no authority conferred with the jurisdiction would have come to such a conclusion on the facts of this case. In the above context it was submitted by the counsel that a split can be recognized by a Speaker only if it is followed up by the steps prescribed in Rule 3 of the Disqualification Rules, as per which the Leader of the split faction should have furnished to the Speaker, within thirty days from the date of its formation of the faction, the following particulars: (a) a statement in writing in Form-I containing the names of the members and other particulars of the faction; (b) names and designations of such member of the faction who has been chosen its leader; (c) the names and designations of such members who have been authorised for the purposes of the Rules to correspond with the Speaker; (d) a copy of the Constitution and Rules of the new legislature party and of the political party to which its members are affiliated. 19. Legislature Party is defined in Paragraph l(b) of the Xth Schedule. It includes the group consisting of all members of the House for the time being, belonging to that political party, formed in accordance with Paragraph 3. The definition applies, inter alia, to the faction formed as envisaged in Paragraph 3. Hence the faction consisting of not less than l/3rd members of the parent legislature party which was constituted as a sequel to the split arisen therefrom is also deemed to be a legislature party. The leader of such newly formed legislature party is also obliged to comply with the requirements contained in Rule 3 of the Disqualification Rules. 20. According to the learned senior counsel, non-compliance with the Rules would lead to the inevitable consequence that respondents cannot be heard to contend that there was a split in BSP as envisaged in Paragraph 3 of Xth Schedule. 21. Dr. L.M. Singhvi, learned senior counsel who argued for some of the respondents contended that non-compliance with the Rules would not by itself establish that the split pleaded by the respondents did not take place. According to the learned counsel, Rules are only procedural and they cannot get the status of constitutional provisions and cannot be equated therewith. He relied on the observations of a two Judge Bench of this Court in Ravi S Naik v. Union of India, [1994] 1 SCR 754 that Disqualification Rules are procedural in nature and any violation of the same would only amount to an irregularity in procedure which is immune from judicial scrutiny. Shri Ashok Desai and Shri RK Jain, the other two learned senior counsel who also argued for some of the remaining respondents supported the aforesaid contention. As against the plea made by Shri Kapil Sibal that the observation in Ravi S. Naik needed re-consideration all the other senior counsel pointed that the two learned Judges in Ravi S. Naik have only adopted the reasoning of the Constitution Bench in Kihoto Hollohan on that aspect and hence it is not liable to be disturbed. 22. Learned Judges who decided Ravi S. Naik were considering the contention that petitions filed before the Speaker did not fulfil the requirements of Rule 6(5)(a)(b) and (6) of the Disqualification Rules inasmuch as those petitions were bereft of facts on which petitioner therein was relying and also for not appending copies of the documents and evidence in those petitions. It was hence contended before the Bench that such petitions were liable to be dismissed on that count alone. Learned Judges, while dealing with the above contention have observed thus: The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Xth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case. 23. In Kihoto Hollohan the Constitution Bench, while dealing with the deeming provision contained in Para 6(2) of the Xth Schedule, made the observation that the immunity adumbrated therein is only for the irregularities of the procedures. In this context it is worthwhile to refer to the next observations made by the Bench in the succeeding portion in Kihoto Hollohan: The very deeming provision implies that the proceedings of disqualification are, in fact, not before the house; but only before the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule. 24. We will not say that rules of procedure are on par with the constitutional mandate incorporated in the Xth Schedule of the Constitution. Nonetheless, the procedure prescribed in the Disqualification Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority conferred by the Xth Schedule that Disqualification Rules are formulated for giving effect to the provisions of this Schedule. What would have happened if the Rules have not been formulated as enjoined by Paragraph 8 of the Xth Schedule? The provisions of the Xth Schedule would remain ineffective. So the Rules cannot be read in isolation from the provisions of the Xth Schedule, in stead they must be read as part of it. Of course, mere violation of a Rule is not enough to constitute violation of the provisions of the Xth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the non-adopted of the procedure cannot be side-lined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the Rules of procedure would very much help the authorities to decide whether there was violation of the constitutional provision envisaged in the Xth Schedule. 25. Before a claim is made by a member of the House under Paragraph 3 of the Xth Schedule a split in the political party should have arisen. Such a split must have caused its reaction in the Legislature Party also by formation of a group consisting of not less than one third of the members of that Legislature party. We have to bear in mind that Clause (b) of Paragraph 3 mandates that for the purposes of this paragraph such factions shall be deemed to be the original political party of the member concerned from the time of such split. What is the overt act through which formation of such a group can be perceived by the Speaker? It is in this context that Rule 3 of the Disqualification Rules assumes relevance and importance. Unless the particulars required in the Rule are furnished how would the Speaker know, authoritatively, of the formation of such a group? Ordinarily such information must be furnished as early as possible. But there can be rare cases in which it may not be possible, due to situational reasons, to furnish the particulars soon after the formation of such a group. But the 30 days time provided in the Rule is not to be understood as any indication to dispense with the promptitude in furnishing those particulars. The time 30 days fixed in Rule 3 must be treated as the outer limit within which the Speaker should be informed of the particulars required. So the need for compliance with Rule 3 is not a bare formality. Insistence on compliance with the Rule is, therefore, to enable the Speaker to decide whether the protection envisaged in the 3rd Paragraph can be afforded to the members concerned. 26. We are of the opinion that a Speaker has to consider the repercussions of non-compliance of a particular rule in the Disqualification Rules to ascertain how far it has affected the credibility of the case of a claimant who seeks protection under Paragraph 3 of the Xth Schedule. 27. The Speaker has accepted the plea of the respondents that there was a split as envisaged in Paragraph 3 of the Xth Schedule. The said finding can be subjected to judicial scrutiny only in the limited sphere indicated in Kihoto Hollohan (supra) viz. whether the infirmities are based on violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. This is a case where appellant did not succeed in showing a case of mala fides or non-compliance with the rules of natural justice as for the conclusion arrived at by the Speaker. As pointed out earlier the main endeavour of the learned counsel was to show that the finding of the Speaker is vitiated by perversity in the sense that the conclusion is so unreasonable that no tribunal would have arrived at it on the given facts. 28. It is suggested on behalf of the respondents that if the conclusion of the Speaker is based on some materials, it is immune from judicial interference because of two broad restrictions. First is the extremely limited scope of judicial scrutiny which is permitted by law as indicated by the Constitution Bench in Kihoto Hollohan. Second is the positional height of the Speaker as a constitutional functionary upon whom the jurisdiction is conferred to determine the disputes under the Xth Schedule. Shri Ashok Desai, learned senior counsel contended for the extreme position that if the conclusion reached by the said functionary is a possible conclusion it stands insulated from any outside interference including by judicial exercise. 29. The said extreme proposition may lead to the situation that, no matter, however illegal the order may be, it cannot be touched if its author is the Speaker. I am unable to concede such an immunity to any constitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is whether the conclusion or the finding made by the Speaker is so unreasonable or so unconscionable that no tribunal should have arrived at it on the given materials. 30. Parameters for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. It was perhaps that approach which made Lord Hailsham to make his quaint comment that two reasonable persons can reach diametrically opposite conclusion on the same set of facts without either of them forfeiting the credential to be reasonable. However, the test of perversity has now bogged down to this: No conclusion can be dubbed as perverse unless the unreasonableness is of such a dimension that no authority vested with the jurisdiction would have come to such a conclusion. Even the oft-quoted Wednesbury principle of reasonableness as propounded by Lord Greene MR Picture House v. Wednesbury Corporation, (1947) 2 All ER 680 has not changed the said approach. 31. Shri Ashok Desai, learned senior counsel made an endeavour to show that the aforesaid principle is a check on the courts from perceiving a decision reached by an authority (vested with power to decide) as unreasonable. Learned Master of Rolls (Lord Greene) has observed thus: In the present case we have heard a great deal about the meaning of the word unreasonable. It is true the discretion must be exercised reasonably. What does that mean? Lawyers familiar with the phraseology commonly used in relation to the exercise of statutory discretion often use the word unreasonable in a rather comprehensive sense. It is frequently used as a general description of the things that must not be done....Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of authority....Theoretically it is true to say - and in practice it may operate in some cases - that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is right. 32. No departure from the said principle is warranted, more so because the Wednesbury ratio has gained approval of this Court in a number of decisions vide Sitaram Sugar Company Limited v. Union of India, [1990] 1 SCR 909 ; Tata Cellular v. Union of India, AIR1996SC11; Union of India v. Ganayutham, (2000) II LLJ 648 SC. 33. The Speaker has, in the impugned order, adverted to the following facts to support his conclusion: (1) In the affidavit filed by Shri Vansh Narain Patel (6th respondent) and others on 02.02.1998, it is mentioned that a split was formed on 21-10-1997 at the lobby of the House when not less than 1/3rd of the total members of BSP MLAs discussed and decided to separate from BSP under the leadership of Shri Markandeya Chand (1st respondent). The number of such MLAs is mentioned in the affidavit as 23. (2) Appellant and her followers did not file any reply to the said affidavits. (3) On 21-10-1997 Shri Vansh Narain Patel (6th respondent) announced on the floor of the House that more than l/3rd MLAs of the BSP have come out of the party. (4) Even though the respondents failed to mention the names of the 23 MLAs who formed such a faction inspite of opportunities granted including the last opportunity on 9/2/1998, they disclosed the names of 26 MLAs of the BSP who formed the split, in the affidavit filed on 25-2-1998. (5) The facts stated in the said affidavits have not been controverted despite opportunity having been given. 34. In substance the crucial circumstance which persuaded the Speaker to rely on the ipse dixit in the affidavit filed by Markandeya Chand and Vansh Narain Patel on 25-2-1998 is that appellant has not controverted it. 35. It must be remembered that it is an undisputed fact that at no time the number of BSP MLAs who voted for Kalyan Singhs Government had reached the number 23 (which is the minimum number necessary to constitute the required percentage for forming a split as envisaged under the 3rd Paragraph of the Xth Schedule). It must further be remembered that the number of individual MLAs who held out that they left BSP had never reached 23 either then or even now. (Of course appellant had admitted that in addition to 12 respondents, who had defected on 21-10-1997, some more MLAs subsequently crossed the floor and their number was only 5 and thus the total number of defectors reached 17). 36. If what the Speaker has pointed out is correct (that the assertion contained in the affidavit filed by R-l and R-6 on 25-2-1998 have not been controverted despite granting opportunity to do so) it is not proper to question the conclusion arrived at by the Speaker that there was a split as envisaged in the Third Paragraph of the Xth Schedule. If that is the position, this Court will not probe into all other criticisms made against the order passed by the Speaker. But a scrutiny of the materials first shows that as a matter of fact no opportunity whatsoever was given to the appellant to controvert the assertions made in the affidavit of 25-2-1998. The observation of the Speaker to the contrary is without any foundation. The proceedings minuted by the Speaker himself on 25-2-1998 at 6.00 P.M. contained the following entries after referring to the two affidavits being filed by Shri Narendra Singh and Markandeya Chand: The same was objected to by Shri Umesh Chand learned counsel for the petitioner on the ground that those affidavits have been filed after 9-2-1998 which was the last date to produce evidence. Whether the above affidavits should be taken on record or not, or whether they should be read in evidence or not, will be considered presently during argument. 37. The second glaring feature which has winched to the fore during judicial scrutiny is that the appellant had in fact strongly controverted the stand of the respondents regarding formation of a split. On the same day when 6th respondent filed the affidavit (i.e. 25.2.1998) specifying the names of 26 MLAs, the appellant had, on her own initiative, filed a petition at 7.40 P.M. pointedly repudiating the above claim of the respondents. The relevant passage from the said petition is extracted below: Today at about 4 P.M. I have been informed that Shri Narendra Singh submitted an additional list of 9 MLAs in addition to the above referred (2+5=7) MLAs before you, claiming that they were also with him and that they have not returned to the BSP....I submit that the above referred claims of Shri Narendra Singh are totally false and baseless excepting the above referred 12 MLAs. Other MLAs belong to the BSP and they are continuing in the BSP. 38. Appellant had produced affidavits of 9 MLAs along with the said petition. AH such affidavits contained averments forcefully repudiating the claim of the first respondent that on 21-10-1997 he got the support of 23 MLAs of BSP. All those affidavits are identically worded and hence the following passage from one alone need be extracted below: That the deponent was present in the session of U.P. Legislative Assembly held on 21.10.1997 under the Leadership of Ms. Mayawati and he had to leave the House because of chaos/disorder in the House along with his Leader, otherwise he would have cast his vote against the Trust Motion moved by Sri Kalyan Singh Ministry in accordance with the whip dated 20.10.1997 issued by the leader of said Legislative party. That the deponent has been a member of Bahujan Samaj Party U.P. and its Legislature Party and continues to be so even today. That the deponent has been continuously opposing the statement given by Sri Markandey Chand on 21.10.1997 on the floor of the House and the statement of said Sri Markandey Chand in the House that he enjoys the support of 23 Members of Bahujan Samaj Party in the U.P. Legislature is wholly incorrect. 39. Now the contention is that the said affidavits were procured in November 1997 and hence they cannot be answers to the affidavits of the 1st respondent dated 25.2.1998. Explanation of the appellant for that is very important. According to the learned counsel for the appellant, she has been collecting affidavits of all the MLAs who loyally remained in the party since 1st respondent made a claim on 21.10.1997 that 23 MLAs have gone out of her party. She could get affidavits only one by one from all those MLAs who remained in the party so that she could show them whenever the need arose. Where was the opportunity for the appellant to produce the affidavits of 9 MLAs until 25.2.1998 when for the first time 1st respondent proclaimed the names of 26 MLAs who have defected on 21.10.1997? But when we perceived the promptitude with which appellant controverted it and supported her statement with the affidavits of all the 9 MLAs, we feel that it is very unfortunate that she is accused of the charge that she has not controverted the affidavits filed by the respondents on 25.2.1998. 40. Thus the basis of Speakers conclusion i.e. appellant has not denied the assertion of the respondents made in the affidavit dated 25.2.1998, is nonexistent. If so, the Speaker must necessarily have other materials to decide that the number of deserters reached the crucial limit of 23. Even on the day when 1st respondent announced in the Assembly (21.10.1997) that 23 BSP MLAs under his leadership have separated from the parent party and decided to support Kalyan Singhs Government, the fact remained that only 12 MLAs (who are the respondents) voted in favour of the Government. The other MLAs who are alleged to have joined the faction repudiated the allegation in unmistakable terms. Thus, when admittedly the number of BSP MLAs who supported Kalyan Singhs Government had never reached the figure 23 at any time, even subsequently, and when respondents could never even mention the names of those 23 MLAs at any time in spite of the Speaker granting opportunities to them for that purpose, including the last opportunity on 09.02.1998, it is a perverse conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him. 41. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the aforecited illustration. 42. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule. 43. In the light of our above finding, it is unnecessary to consider the next question relating to sub-clause (b) of Paragraph 2(1) of the Xth schedule because such a venture would only be of academic utility now. 44. Learned senior counsel for the respondents made an alternative contention that in the event this court holds that the finding of the Speaker is perverse, the next course to be adopted is to remit the matter to the Speaker for his final decision. Learned counsel cited some decisions of this Court which held the proposition that it is not the function of courts of law to substitute their wisdom and decision for that of the authority to whose judgment the matter in question is entrusted by law. The Vice Chancellor, Utkal University v. S.K. Ghosh, [1954] 1 SCR 883 and Mansukh Lal Vithal das Chauhan v. State of Gujarat, 1997 Cri LJ 4059 . 45. Learned counsel then invited our attention to the following passage from Frasers speech in Re Amin 1983 (2) All ER 864. Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer. 46. The above passage has been quoted with approval by a three Judge Bench of this Court in Tata Cellular v. Union of India, AIR 1996 SC 11 . 47. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision, it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will not serve any additional purpose because there is nothing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the cover provided in Paragraph 3 of the Xth Schedule, the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is not available to them under law in substitution of the contra finding made by the Speaker, its inevitable sequester is that all the twelve respondents stand disqualified under Paragraph 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would stand thus altered. 48. I may point out, in this context, that the action of the Speaker, in allowing the 12 respondents to register their votes in a composite poll held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in Special Leave Petition (Civil) No. 4495 of 1998. This Court then noted in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs (who supported Sri Jagdambika Pal) the votes of 12 respondents were also counted. However, the Court did not in that case pursue the said criticism made against the Speaker mainly for the following reasoning: Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when subtracted from those polled, still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do not go to Sri Jagdambika Pal who would still be in minority. 49. Presumably on the above premise, it was submitted before us that disqualification of 12 respondents would not affect the government of Sri Kalyan Singh which even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended to disturb the government of Sri Kalyan Singh in any manner so long as he commands majority in the Legislative Assembly. But that aspect cannot detract us from exercising power of judicial review of the impugned verdict.

Decision:
1[ds]10. Two conditions are sine qua non for avoiding the disqualification when any member of the House voluntarily gives up membership of his original political party. First is that the member concerned should have made a claim that the split in the original Political Party has arisen resulting in the Constitution of a group in its Legislature Party representing a faction thereof. Second is that such group should consist of not less than l/3rd of the members of such Legislature Party.11. In order to establish that the first condition has been fulfilled the first respondent (Shri Markandeya Chand) has made a statement in the House on 21-10-1997 that the split of BSP Legislature Party had arisen consisting of a group which represents a faction of not less than l/3rd of the members thereof. It appears that the Speaker has proceeded on the assumption that a claim has been made as provided in the said Paragraph.12. Regarding the second condition the Speaker held that there was a split in the Bahujan Samaj Party on 21-10-1997 and a faction had arisen as a result of the split in the BSP and a group consisting of 26 BSP MLAs was constituted on 21-10-97 itself representing the faction which did arise and that group is known as Janatantrik BSP.15. Venkatachaliah, J (as the learned Chief Justice then was) has delved into the importance of the office of the Speaker and found that the Speaker holds a high, important and ceremonial office, he is the very embodiment of propriety and impartiality and he performs wide ranging functions including the performance of important functions of a judicial character, and observed thus:It would, indeed, be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The robes of the Speaker do change and elevate the man inside.16. Accordingly, the contention that vesting of adjudicatory functions in the Speaker would vitiate the provision on the ground of likelihood of political bias was rejected.17. Paragraph 6 of the Xth Schedule renders the decision of the Speaker final. The Constitution Bench considered its validity in Kihoto Hollohan (supra). In the majority judgment it was held that the finality clause in Paragraph 6 does not completely exclude the jurisdiction of the court under Articles 136, 226 and 227 of the Constitution. Ultimately the Constitution Bench upheld the validity of the Xth Schedule subject to the aforesaid rider. However, the Bench further held that the scope of judicial scrutiny is limited to ascertain whether the decision of the Speaker is vitiated by jurisdictional errors viz. infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.22. Learned Judges who decided Ravi S. Naik were considering the contention that petitions filed before the Speaker did not fulfil the requirements of Rule 6(5)(a)(b) and (6) of the Disqualification Rules inasmuch as those petitions were bereft of facts on which petitioner therein was relying and also for not appending copies of the documents and evidence in those petitions. It was hence contended before the Bench that such petitions were liable to be dismissed on that count alone. Learned Judges, while dealing with the above contention have observed thus:The Disqualification Rules have been framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him under sub-paragraph (1) of paragraph 6 of the Xth Schedule to the Constitution. The Disqualification Rules are, therefore, procedural in nature and any violation of the same would amount to an irregularity in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of paragraph 6 as construed by this Court in Kihoto Hollohan case.23. In Kihoto Hollohan the Constitution Bench, while dealing with the deeming provision contained in Para 6(2) of the Xth Schedule, made the observation that the immunity adumbrated therein is only for the irregularities of the procedures. In this context it is worthwhile to refer to the next observations made by the Bench in the succeeding portion in Kihoto Hollohan:The very deeming provision implies that the proceedings of disqualification are, in fact, not before the house; but only before the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.24. We will not say that rules of procedure are on par with the constitutional mandate incorporated in the Xth Schedule of the Constitution. Nonetheless, the procedure prescribed in the Disqualification Rules are meant to be followed for the purpose for which they are made. It is by virtue of the authority conferred by the Xth Schedule that Disqualification Rules are formulated for giving effect to the provisions of this Schedule. What would have happened if the Rules have not been formulated as enjoined by Paragraph 8 of the Xth Schedule? The provisions of the Xth Schedule would remain ineffective. So the Rules cannot be read in isolation from the provisions of the Xth Schedule, in stead they must be read as part of it. Of course, mere violation of a Rule is not enough to constitute violation of the provisions of the Xth Schedule. When a certain procedure is required by the Rules to be adopted for giving effect to the provisions of the Constitution, the non-adopted of the procedure cannot be side-lined altogether as a mere procedure and of no consequence. Compliance or non-compliance with the Rules of procedure would very much help the authorities to decide whether there was violation of the constitutional provision envisaged in the Xth Schedule.25. Before a claim is made by a member of the House under Paragraph 3 of the Xth Schedule a split in the political party should have arisen. Such a split must have caused its reaction in the Legislature Party also by formation of a group consisting of not less than one third of the members of that Legislature party. We have to bear in mind that Clause (b) of Paragraph 3 mandates that for the purposes of this paragraph such factions shall be deemed to be the original political party of the member concerned from the time of such split. What is the overt act through which formation of such a group can be perceived by the Speaker? It is in this context that Rule 3 of the Disqualification Rules assumes relevance and importance. Unless the particulars required in the Rule are furnished how would the Speaker know, authoritatively, of the formation of such a group? Ordinarily such information must be furnished as early as possible. But there can be rare cases in which it may not be possible, due to situational reasons, to furnish the particulars soon after the formation of such a group. But the 30 days time provided in the Rule is not to be understood as any indication to dispense with the promptitude in furnishing those particulars. The time 30 days fixed in Rule 3 must be treated as the outer limit within which the Speaker should be informed of the particulars required. So the need for compliance with Rule 3 is not a bare formality. Insistence on compliance with the Rule is, therefore, to enable the Speaker to decide whether the protection envisaged in the 3rd Paragraph can be afforded to the members concerned.26. We are of the opinion that a Speaker has to consider the repercussions of non-compliance of a particular rule in the Disqualification Rules to ascertain how far it has affected the credibility of the case of a claimant who seeks protection under Paragraph 3 of the Xth Schedule.27. The Speaker has accepted the plea of the respondents that there was a split as envisaged in Paragraph 3 of the Xth Schedule. The said finding can be subjected to judicial scrutiny only in the limited sphere indicated in Kihoto Hollohan (supra) viz. whether the infirmities are based on violation of constitutional mandate, mala fides, non-compliance with the rules of natural justice and perversity. This is a case where appellant did not succeed in showing a case of mala fides or non-compliance with the rules of natural justice as for the conclusion arrived at by the Speaker. As pointed out earlier the main endeavour of the learned counsel was to show that the finding of the Speaker is vitiated by perversity in the sense that the conclusion is so unreasonable that no tribunal would have arrived at it on the given facts.29. The said extreme proposition may lead to the situation that, no matter, however illegal the order may be, it cannot be touched if its author is the Speaker. I am unable to concede such an immunity to any constitutional functionary to be above law or to have unfettered jurisdiction to pass unreasonable orders with immunity. The test cannot be whether it is possible for the Speaker to record such a conclusion, because the very fact that the Speaker passed an order itself is the instance to show that it is possible. The test is whether the conclusion or the finding made by the Speaker is so unreasonable or so unconscionable that no tribunal should have arrived at it on the given materials.30. Parameters for scrutinising what is unreasonable are, of course, nebulous. What appears to be reasonable to one man may be unreasonable to another and vice versa. It was perhaps that approach which made Lord Hailsham to make his quaint comment that two reasonable persons can reach diametrically opposite conclusion on the same set of facts without either of them forfeiting the credential to be reasonable. However, the test of perversity has now bogged down to this: No conclusion can be dubbed as perverse unless the unreasonableness is of such a dimension that no authority vested with the jurisdiction would have come to such a conclusion. Even the oft-quoted Wednesbury principle of reasonableness as propounded by Lord Greene MR Picture House v. Wednesbury Corporation, (1947) 2 All ER 680 has not changed the said approach.32. No departure from the said principle is warranted, more so because the Wednesbury ratio has gained approval of this Court in a number of decisions vide Sitaram Sugar Company Limited v. Union of India, [1990] 1 SCR 909 ; Tata Cellular v. Union of India, AIR1996SC11; Union of India v. Ganayutham, (2000) II LLJ 648 SC.34. In substance the crucial circumstance which persuaded the Speaker to rely on the ipse dixit in the affidavit filed by Markandeya Chand and Vansh Narain Patel on 25-2-1998 is that appellant has not controverted it.35. It must be remembered that it is an undisputed fact that at no time the number of BSP MLAs who voted for Kalyan Singhs Government had reached the number 23 (which is the minimum number necessary to constitute the required percentage for forming a split as envisaged under the 3rd Paragraph of the Xth Schedule). It must further be remembered that the number of individual MLAs who held out that they left BSP had never reached 23 either then or even now. (Of course appellant had admitted that in addition to 12 respondents, who had defected on 21-10-1997, some more MLAs subsequently crossed the floor and their number was only 5 and thus the total number of defectors reached 17).36. If what the Speaker has pointed out is correct (that the assertion contained in the affidavit filed by R-l and R-6 on 25-2-1998 have not been controverted despite granting opportunity to do so) it is not proper to question the conclusion arrived at by the Speaker that there was a split as envisaged in the Third Paragraph of the Xth Schedule. If that is the position, this Court will not probe into all other criticisms made against the order passed by the Speaker. But a scrutiny of the materials first shows that as a matter of fact no opportunity whatsoever was given to the appellant to controvert the assertions made in the affidavit of 25-2-1998. The observation of the Speaker to the contrary is without any foundation. The proceedings minuted by the Speaker himself on 25-2-1998 at 6.00 P.M. contained the following entries after referring to the two affidavits being filed by Shri Narendra Singh and Markandeya Chand:The same was objected to by Shri Umesh Chand learned counsel for the petitioner on the ground that those affidavits have been filed after 9-2-1998 which was the last date to produce evidence. Whether the above affidavits should be taken on record or not, or whether they should be read in evidence or not, will be considered presently during argument.37. The second glaring feature which has winched to the fore during judicial scrutiny is that the appellant had in fact strongly controverted the stand of the respondents regarding formation of a split. On the same day when 6th respondent filed the affidavit (i.e. 25.2.1998) specifying the names of 26 MLAs, the appellant had, on her own initiative, filed a petition at 7.40 P.M. pointedly repudiating the above claim of the respondents. The relevant passage from the said petition is extracted below:Today at about 4 P.M. I have been informed that Shri Narendra Singh submitted an additional list of 9 MLAs in addition to the above referred (2+5=7) MLAs before you, claiming that they were also with him and that they have not returned to the BSP....I submit that the above referred claims of Shri Narendra Singh are totally false and baseless excepting the above referred 12 MLAs. Other MLAs belong to the BSP and they are continuing in the BSP.But when we perceived the promptitude with which appellant controverted it and supported her statement with the affidavits of all the 9 MLAs, we feel that it is very unfortunate that she is accused of the charge that she has not controverted the affidavits filed by the respondents on 25.2.1998.40. Thus the basis of Speakers conclusion i.e. appellant has not denied the assertion of the respondents made in the affidavit dated 25.2.1998, is nonexistent. If so, the Speaker must necessarily have other materials to decide that the number of deserters reached the crucial limit of 23. Even on the day when 1st respondent announced in the Assembly (21.10.1997) that 23 BSP MLAs under his leadership have separated from the parent party and decided to support Kalyan Singhs Government, the fact remained that only 12 MLAs (who are the respondents) voted in favour of the Government. The other MLAs who are alleged to have joined the faction repudiated the allegation in unmistakable terms. Thus, when admittedly the number of BSP MLAs who supported Kalyan Singhs Government had never reached the figure 23 at any time, even subsequently, and when respondents could never even mention the names of those 23 MLAs at any time in spite of the Speaker granting opportunities to them for that purpose, including the last opportunity on 09.02.1998, it is a perverse conclusion, overlooking the aforesaid formidable circumstances that 23 MLAs had split from the BSP on 21.10.1997. We have absolutely no doubt that no authority vested with jurisdiction to decide the question should ever have reached such a conclusion on the facts and materials made available to him.41. The danger involved in upholding such a conclusion of the Speaker merely relying on the ipse dixit of the defectors can be illustrated thus: From one Legislature Party (having a strength of say one hundred members) two MLAs, A and B, defected and when they were confronted with the consequence of disqualification, they sought protection under the Third Paragraph of Xth Schedule by saying that along with them 31 more MLAs of their party have also gone out of the Party and A and B mentioned their names also. But all those 31 MLAs repudiated the allegations. In such a case the Speaker holds that the two defectors have the protection of the 3rd Paragraph for the simple reason that the Speaker chose to believe their ipse dixit. Such a syllogism, if adopted, would be preposterous and revolting to judicial conscience from any standard of reasonableness and would toll the death knell of the Constitutional philosophy enshrined in the Xth Schedule. The finding in the impugned order is not materially different from the aforecited illustration.42. I, therefore, unhesitatingly hold that the finding of the Speaker that a split arose in the BSP on 21.10.1997 forming a group representing a faction consisting of not less than 1/3rd of the members of the Legislature party of BSP is vitiated by perversity. The corollary of it is that the 12 respondents who have defected from the BSP on the said date cannot escape from the consequence provided in sub-clause (a) paragraph 2(1) of the Xth Schedule.43. In the light of our above finding, it is unnecessary to consider the next question relating to sub-clause (b) of Paragraph 2(1) of the Xth schedule because such a venture would only be of academic utility now.47. In cases where the authority vested with jurisdiction has to consider and reach a fresh decision, it is necessary that after exercising judicial scrutiny the matter must go back to such authority for fresh decision. But in the present case the situation is different. A remit to the Speaker will not serve any additional purpose because there is nothing further for him to decide. As the respondents, having given up their membership from the parent political party voluntarily, have sought to insulate such severance with the cover provided in Paragraph 3 of the Xth Schedule, the only issue to be decided is whether the respondents are entitled to such protection. When this Court found that the aforesaid protection is not available to them under law in substitution of the contra finding made by the Speaker, its inevitable sequester is that all the twelve respondents stand disqualified under Paragraph 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would stand thus altered.48. I may point out, in this context, that the action of the Speaker, in allowing the 12 respondents to register their votes in a composite poll held by the Speaker on 26.2.1998 (as between Sri Kalyan Singh and Sri Jagdambika Pal - a rival claimant to the post of Chief Ministership) without deciding the complaint made by the appellant seeking their disqualification from the membership of the House, was criticised before this Court in Special Leave Petition (Civil) No. 4495 of 1998. This Court then noted in the Order dated 27.2.1998 that out of 225 MLAs who voted in favour of Sri Kalyan Singh as against 196 MLAs (who supported Sri Jagdambika Pal) the votes of 12 respondents were also counted. However, the Court did not in that case pursue the said criticism made against the Speaker mainly for the following reasoning:Even when those 12 members are taken to have voted in favour of Sri Kalyan Singh, their votes when subtracted from those polled, still leaves him to be the one having majority in the House. Correspondingly, those 12 votes do not go to Sri Jagdambika Pal who would still be in minority.49. Presumably on the above premise, it was submitted before us that disqualification of 12 respondents would not affect the government of Sri Kalyan Singh which even otherwise commands a majority in the House. We make it clear that our decision, on the present issue, is not intended to disturb the government of Sri Kalyan Singh in any manner so long as he commands majority in the Legislative Assembly. But that aspect cannot detract us from exercising power of judicial review of the impugned verdict.