* THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE AND *HON’BLE MR JUSTICE RAMESH RANGANATHAN + W.P.Nos.28453 and 28624 of 2008 % Dated 08-04-2009 # Mandadi Satyanarayana Reddy …. Petitioner Vs. $. Andhra Pradesh Legislative Assembly rep. By its Secretary, A.P. Hyderabad and 2 others …. Respondents ! Counsel for the petitioners: Sri M.chandrasekhar rao Sri V.Venkatarmana ^ Counsel for the Respondents : Sri K.Ramakrishna Reddy, Senior Counsel for 2nd respondent <GIST: > HEAD NOTE: ? Cases referred [1] 1992 Supp (2) SCC 651 2 (2007) 4 SCC 270 3 (1996) 2 SCC 353 4 (1996) 1 SCC 235 5 (2000) 1 SCC 145 6 AIR 1982 SC 983 7 AIR 1962 SC 1044 8 (1997) 1 SCC 373 9 (2007) 9 SCC 179 10 (2001) 8 SCC 540 11(2008) 4 SCC 755 12AIR 1961 SC 1170 13AIR 1990 SC 1747 14AIR 1966 SC 1678 15 (1984) 2 SCC 500 16(2001) 8 SCC 61 17 (2003) 5 SCC 134 18 (2005) 10 SCC 437 19 (2004) 11 SCC 625 20(1986) 4 SCC 746 21AIR 1992 SC 96 22(2001) 3 SCC 735 23(2004) 8 SCC 747 241994 Supp (2) SCC 641 25(2006) 11 SCC 1 262006 (5) ALT 42 272006 (1) ALT 135 28AIR 1969 SC 1201 292004 (5) ALT 574 30AIR 1988 SC 1274 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 28453 of 2008 Between: Mandadi Satyanarayana Reddy s/o.Ram reddy R/o.Teachers Colony, Vaddipalli Hanumakonda, Warangal District ..... PETITIONER AND 1 Andhra Pradesh Legislative Assembly , rep.by its Hon`ble Speaker,AP,Hyderabad 2 Gunde Vijaya Rama Rao S/o.Ramachandra Rao Banjara Hills,Hyderabad 3 Government of Andhra Pradesh, Department of Legislature rep.by its Secretary, Secretariat, Hyderabad .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ order or direction more particularly one in the nature of of writ of Certiorari quashing the impugned order dated 22.12.2008 in DP.No.1 of 2007 of the 1st respondent after calling for the records in DP.No.1 of 2007 and consequently declare that the petitioner continues to be the Member of the AP Legislative Assembly and pass Counsel for the Petitioner:MR.MOVVA.CHANDRASHEKAR RAO Counsel for the Respondent No.: GP FOR LAW & LEGISLATIVE AFFAIRS The Court made the following : IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE EIGHTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 28624 of 2008 Between: Soyam Bapu Rao S/o. Naga Rao Boath Legislative Assembly Constituency No. 241 Adilabad R/o. Ichoda Village and Mandal. ..... PETITIONER AND 1 The Hon'ble Speaker, A.P. Legislative Assembly,. Hyderabad. 2 G. Vijaya Rama Rao Former Ex-M.L.A., Flour Leader of T.R.S. Party R/o. Station Ghanpur, Warangal. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ of Certiorari and quash the Order of the First respondent in petition NO.1 of 2007 dt. 22-12-2008 insofar as the petitioner is concerned and consequently declre that the petitioner is entitled to continue the office of the Member of Legislative Assembly Constituency No. No. 241 i.e, Boath , Adilabad District till April 2009 and grant Such other relief as it deems fit in the circumstances of the case. Counsel for the Petitioner:MR.V.VENKATARAMANA Counsel for the Respondent No.: MR.RAVI SHANKAR JANDHYALA The Court made the following : THE HON’BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE and THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN W.P.Nos.28453 and 28624 of 2008 COMMON JUDGMENT: (Per HON’BLE SRI JUSTICE RAMESH RANGANATHAN) “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.” [Statement of Objects and Reasons for introducing the Tenth Schedule in the Constitution by the Constitution (Fifty-second Amendment) Act, 1985]. Unprincipled defection is a political and social evil. People have grown distrustful of the emotive political exultations that such floor- crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct — whose awkward erosion and grotesque manifestations have been the bane of the times — above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. (Kihoto Hollohan vs. Zachillhu[1]). Aggrieved by the order of the Speaker of the Andhra Pradesh State Legislative Assembly, in Disqualification Petition No.1 of 2007 dated 22.12.2008, declaring that they were disqualified from continuing as members of the 12th Legislative Assembly under para 2(1)(a) of the tenth schedule, and that their seats had fallen vacant, respondents 3 and 6 therein have filed these two writ petitions. A writ of Certiorari is sought to quash the said order and to declare that they continue to be members of the Andhra Pradesh Legislative Assembly. The 2nd respondent in these two writ petitions was the petitioner in D.P.No.1 of 2007. Parties shall, hereinafter, be referred to as they are arrayed in D.P.No.1 of 2007. D.P.No.1 of 2007 was filed before the Speaker contending that the respondents therein, including the petitioners in these two writ petitions, were set up and elected on the Telangana Rastra Samithi (TRS) party ticket, that they were elected as members of the Legislative Assembly in the general elections held in 2004, that TRS party had set up two candidates i.e. (1) Sri H.A.Rahman and (2) Sri M.Sudarshana Rao to contest in the elections to the A.P. State Legislative Council held on 22.03.2007, that all the 9 respondents had openly disobeyed the decision of the TRS political party and had proposed the nomination of Sri Kasani Gnaneswar, the President of Mahajan Party, as an independent candidate, that their conduct amounted to their having voluntarily given up membership of the TRS political and legislature party and that they were disqualified from continuing as members, of the A.P. State Legislative Assembly, under Article 191(2) read with para 2(1)(a) of the tenth schedule of the Constitution of India. A common counter affidavit was filed, in D.P.No.1 of 2007, on behalf of all the 9 respondents. D.P.No.2 of 2007 was filed, before the Speaker, by the Chief Whip of the TRS party to declare that these 9 MLAs had suffered disqualification, under para 2(1)(b) of the tenth schedule, on the ground that they had not only proposed the name of Sri Kasani Gnaneswar but had also set up and supported him, that they had celebrated his victory though a resolution had been passed by the TRS party on 05.03.2007 to set up two candidates, and a whip was issued on 19.03.2007 to all MLAs of TRS legislature party, including the nine respondents, which was widely published in the newspapers. However, D.P.No.2 of 2007 was not pressed. In D.P.No.1 of 2007, the Speaker framed 7 points for consideration. The petitioner, (2nd respondent in these two writ petitions), examined himself as a witness. Exs.P.1 to P.21 were marked. Respondent no.3, (the petitioner in W.P.No.28453 of 2008), examined himself as R.W.1 and 3 others as his witness. Exs.B.1 to B.5 were marked. By his order dated 22.12.2008, and in exercise of the powers vested in him, under para 6 of the Tenth Schedule and Rule 8 the Members of A.P. Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, (hereinafter referred to as the “disqualification rules”), the Speaker held that three of the respondents, including both the writ petitioners, stood disqualified from continuing as members of the 12th Andhra Pradesh Legislative Assembly and that their seats had fallen vacant. Detailed submissions, both oral and written, have been made before us by Sri M. Chandrasekhar Rao, Sri V.Venkataramana, learned counsel for the writ petitioners, and Sri K.Ramakrishna Reddy, learned senior counsel appearing on behalf of the 2nd respondent-complainant. On the rival submissions, the following questions arise for consideration: 1) While exercising jurisdiction, under the Tenth Schedule, can the Speaker adjudicate a dispute whether or not a Legislator belongs to a particular legislature party? 2) Were the petitioners members of the TRS party when D.P.No.1 of 2007 was instituted before the Speaker? 3) Is Article 171(4) a constitutional mandate to a Legislator to vote, in the elections to the Legislative Council, on the basis of proportional representation? If so, does the act of a legislator, in proposing a candidate for election to the Legislative Council, fall within the ambit of such a mandate, clothing him with constitutional protection? 4) Should the power of condonation, in para 2(1)(b), be read into para 2(1)(a) of the Tenth Schedule, and the action of T.R.S. party, in not pressing D.P.2 of 2007, be held as condoning the act of the legislators in proposing an independent candidate, though T.R.S. party had set up two candidates for election to the Legislative Council? 5) Was the Speaker justified in adjudicating D.P.No.1 of 2007 when D.P.No.2 of 2007 was not pressed, and both D.P.Nos.1 and 2 of 2007 were based on similar set of facts? 6) Is disqualification under Para 2(1)(a) confined only to exercise of vote, or abstention from voting, where a change of Government is likely to be brought about or a major policy or programme, on which the political party had gone to the polls, is involved? 7) In the absence of a whip or a direction, that the Legislators, belonging to the party, should or should not do something, could the Speaker have drawn an inference on the conduct of such legislators to hold that they “had voluntarily given up membership” of the TRS party? 8) Whether newspaper reports and C.Ds. could have been relied upon by the Speaker while exercising jurisdiction under the Tenth Schedule? 9) Whether the Speaker has recorded findings on all the points framed for consideration and, if not, would such failure require the impugned order to be set aside? I. Regarding Question No.1:-- Sri V.Venkataramana would submit that the essential jurisdictional fact, for adjudication of a disqualification, is an undisputed factual position that “the legislators belong to a particular legislature party” in view of the words in para 2(1)(a) that “a member of a house belonging to any political party shall be disqualified for being a member of the house”, that a combined reading of paras 1, 2 and 6 of the Tenth Schedule would lead to the irresistible conclusion that incurring of disqualification could be decided by the Speaker only if the jurisdictional fact, of the particular legislator belonging to a particular legislature party, was admitted, that, since the Speaker was conferred with limited jurisdiction to decide upon the incurring of disqualification, the factual dispute in the present case, i.e. whether the petitioner was elected as an independent candidate or was set up or sponsored by the TRS party, did not fall within his jurisdiction. According to the learned counsel a dispute, whether a legislator belonged to a legislature party or not, may some times be bonafide or real in contra distinction to a camouflage of a dispute, that if a dispute was raised for the purpose of a dispute or to escape from a possible disqualification, it could be decided by the Speaker at the threshold without going deep into the matter, that in the present case, since the writ petitioners had filed their nomination as independent candidates and were merely sponsored and not set up by the TRS party, the dispute, whether or not they belonged to the TRS party, was bonafide and as the foundational jurisdictional facts were themselves in dispute the Speaker lacked jurisdiction to adjudicate thereupon. The Tenth Schedule cannot be read or construed independent of Article 191 of the Constitution and its object of discouraging defection which has assumed menacing proportions, (Rajendra Singh Rana vs. Swami Prasad Maurya[2]), and to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the very foundation of our democracy. (Kihoto Hollohan1). A purposive interpretation of the Tenth Schedule is called for (Rajendra Singh Rana2), which is to suppress the mischief, namely, breach of faith of the electorate and to curb the evil of defections which has polluted our democratic polity. (G.Viswanathan vs. Hon'ble Speaker T.N.Legislative Assembly[3]). The remedy proposed is to disqualify the person, who is found to have defected, from continuing as a member of the House. (Kihoto Hollohan1). The provisions in the Tenth Schedule give recognition to the role of political parties in the political process. Paragraph 2(1)(a) proceeds on the premise that political propriety and morality demand that if a person changes his affiliation after the election, and leaves the political party which had set him up as a candidate in the election, 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. (Kihoto Hollohan1). The words “such political party” in para 2(1)(a) refers to the ‘original political party’ as defined in para 1(c) of the Tenth Schedule. Under explanation (a) to para 2(1), an elected member of a House shall be deemed to belong to the political party by which he was set up as a candidate for election as such member. The essential jurisdictional fact to be ascertained, in order to decide if a member of the House attracts disqualification, under para 2(1) of the Tenth Schedule, is whether he was set up as a candidate for election as such member by a political party. If he was, the legal fiction in explanation (a) would require his being deemed to be a member of such political party. The legal fiction, enacted in explanation (a) to para 2(1) of the Tenth Schedule, must be given full effect. Otherwise, the member will escape the rigour of the law intended to curb the evil of defections which has polluted our democratic polity. Para 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. (G.Viswanathan3). The expression ‘original political party’, as defined in para 1(c) of the Tenth Schedule, must also be read in the context of para 3, as it originally stood, whereunder a split in the original political party would not attract disqualification on the ground of defection. Under para 6(1), the Speaker is required to decide the question whether a member of the House is subject to disqualification under the Tenth Schedule. In case of a dispute the Speaker cannot, without recording a finding on the jurisdictional facts whether or not a member of the House was set up by a political party as a candidate for election, and that he belongs to such political party, exercise jurisdiction under para 6(1) to decide whether such a member has suffered disqualification under clause (a) or (b) of para 2(1) of the Tenth Schedule. There is nothing in paras 1, 2 and 6 of the Tenth Schedule which fetter exercise of jurisdiction by the Speaker to decide this question. Accepting the contention, urged by Sri V.Venkataramana, would mean that, by merely disputing his membership of the political party, a member of such political party can avoid the rigour of the Tenth Schedule. Such a construction would defeat the object of the Constitution (Fifty-second Amendment) Act, 1985 and the purpose for which clause (2) to Article 191 and the Tenth Schedule were inserted. The distinction sought to be made by the learned counsel between a “real and bonafide dispute” and a “camoflauge of a dispute” does not find support in the provisions of the Tenth Schedule. Question No.1 is answered in the affirmative. II. Regarding Question No.2:-- Sri M. Chandrasekhar Rao would contend that, while R.W.1 had deposed that he was never a member of the TRS political party, he was not cross-examined on this aspect, that the nomination form filed in the 2004 general elections showed that they had contested as independent candidates sponsored by the TRS party which was further established by the fact that their nomination was proposed by 10 voters, that, under Section 33 of the Representation of the People Act, 1951, if a candidate was set up by a recognized political party one proposer was sufficient for a valid nomination whereas 10 voters were required to propose an independent candidate’s nomination, that reliance placed on the gazette notification dated 12-05-2004, (marked as Ex.P.22 wherein the names of the disqualified members were shown in the list of TRS party legislators), was misplaced, that the basis for such publication, under Section 73 of the Representation of the People Act, was the declaration of result by the returning officer under Section 66 of the Act, that the heading “names of the members elected for those constituencies along with their party affiliation” in the gazette notification showed that MLAs were broadly categorized to include those elected on a party ticket as well as independent candidates sponsored by a political party, that the basis to decide whether a candidate had contested as an independent, or on behalf of political parties, was the nomination form, that declaration of result of the petitioner’s election, in Form No.21-C under Section 66 of the Representation of the People Act read with Rule 64 of the Conduct of Election Rules, 1961, showed that he was only sponsored and not set up by the TRS party and, since their nomination forms had been signed by 10 voters, and the declaration form showed that they were sponsored by TRS, it was evident that respondent no.3 and 6 had contested the election as independent candidates and that they were not members of the TRS party. Sri K.Ramakrishna Reddy would submit that TRS was a registered political party with effect from 21.08.2001 and recognized as a political party vide Election Commission letter dated 21.05.2004, that the respondents were set up as candidates, for election to the Legislative Assembly by the TRS political party, that they were given party tickets based on which they were elected as members of the legislative assembly, that they had filed statutory declarations in Form 2-B, and the nomination paper in Part III(b)(ii), stating that they were set up in the election by the Telangana Rashtra Samithi (TRS) party which was a registered, but unrecognized, political party, that they had also filed a declaration in Form III, under Rule 4 of the disqualification rules, stating that they were affiliated to the TRS party by depositing the election certificate issued by the Returning Officer in Form 21-C before taking oath as an MLA under Article 188 of the Constitution of India, that a notification was published by the Election Commission, in A.P. Gazette No.24 dated 12.05.2004, stating that the petitioners were elected as MLAs with TRS party affiliation and that it was conclusively established that the writ petitioners were TRS party MLAs. On the question whether respondents 1 to 9 were members of the TRS party, the Speaker noted that the petitioner had filed copies of the nomination papers filed in the general elections held to the Andhra Pradesh Legislative Assembly in 2004, the Gazette Notification dated 12.05.2004 issued by the Election Commission, copies of the party-wise list of members of the Legislative Assembly maintained by the Andhra Pradesh Legislature and that the Secretary, Andhra Pradesh Legislature had also been examined. The Speaker also noted the contention of the respondents that they did not belong to the TRS party, that they had contested as independent candidates with a common symbol, got elected as independent members of the Legislative Assembly and continued to remain as such. The Speaker observed that, in the instant case, the Election Commission had issued the Gazette Notification on 12.05.2004 constituting the 12th Andhra Pradesh State Legislative Assembly, that the notification clearly mentioned that the respondents belonged to the TRS party, that it was only on the basis of the notification issued by the Election Commission, and the details furnished by the leadership of the TRS legislature party, would the Legislature Secretariat deal with the members, that the records of the Andhra Pradesh Legislature, and the evidence of R.W.4, indicated that the strength of TRS Legislature party including the respondents was 26, that nothing had been brought on record that the respondents had disputed the same at any time after their election till the filing of the disqualification petition, that the respondents had, in their counter, referred to the TRS party as “our” party and, therefore, he considered that TRS was a political party and all the respondents were its members. The contention, based on Section 33 of the Representation of the People Act, 1951, is only to be noted to be rejected. The Election Commission of India issued the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as “the Symbols Order”). Para 6 of the symbols order classifies political parties into recognised and unrecognised political parties. (Janata Dal (Samajwadi) vs. Election Commission of India[4]; Krishna Mohini vs. Mohinder Nath Sofat[5]). The expression “recognised political party”, as occurring in the first proviso to sub-section (1) of Section 33 of the Act, must be assigned the same meaning as assigned to it by the Symbols Order. The privilege enjoyed by a candidate set up by a recognised political party, as spelt out by a combined reading of Section 33 of the Act with the provisions of the Symbols Order, is that his nomination paper is complete if proposed by an elector, (i.e., one only), of the constituency. If the candidate be one not set up by a recognised political party, i.e., if he be a candidate set up by an unrecognised party or be he an independent candidate, his nomination paper must be subscribed by ten proposers being electors of the constituency. The nomination paper filed by a candidate set up by an unrecognised political party, or an independent candidate, cannot be proposed by a single elector of the constituency or by electors less than ten. (Krishna Mohini5) As TRS was registered as a political party with effect from 21.08.2001, and as it was not a recognized political party when the 2004 general elections were held both to the Lok Sabha and to the Andhra Pradesh Legislative Assembly, (having been recognized as a political party only after the elections i.e. with effect from 21.05.2004), respondents 1 to 9 were required to be proposed by 10 electors. Unlike the Representation of People Act, 1951, or the Symbols Order, the Tenth Schedule to the Constitution does not make any distinction between a recognized political party and a registered but unrecognised political party. All that it requires is that a member of the House should belong to a political party and should be set up by such a party in the election. The distinction sought to be made between “sponsored” and “set up” by the TRS party, in the 2004 elections, does not find support in the Tenth Schedule. A perusal of Ex.B.5 would make it clear that respondents 1 to 9 were set up by TRS party and had contested the 2004 elections on its behalf as members of a registered but unrecognized political party. Ex.P.3 is the declaration of the result