Case: Mayawati  Vs. Markandeya Chand and Ors.

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 = appeal accepted, 0 = rejected): 1

Explanation:
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.