Holding

The Supreme Court upheld the Speaker’s determination that the twelve respondents are disqualified under paragraph 2(1)(a) of the Tenth Schedule and that the appeal is dismissed.

Summary

The case concerned a motion of confidence in the Uttar Pradesh Legislative Assembly on 21 October 1997, after which twelve Bahujan Samaj Party (BSP) MLAs voted for the government despite a whip issued by BSP leader Mayawati. Mayawati petitioned the Speaker for their disqualification under paragraph 2(1)(b) of the Tenth Schedule, which the Speaker rejected, finding a valid split in the BSP under paragraph 3 and holding the whip ineffective. On appeal, the Supreme Court examined whether the Speaker's order was vitiated by jurisdictional error, violation of constitutional mandate, malafides, non‑compliance with natural‑justice rules or perversity, and also interpreted the meaning of "political party" and the effect of non‑compliance with Rule 3 of the Disqualification Rules. The Court held that the Speaker’s findings were not perverse, that the split was not proved, and that the respondents were disqualified under paragraph 2(1)(a). The appeal was dismissed.

Issues considered

The validity of the Speaker's order under the anti‑defection provisions of the Tenth Schedule
Whether the alleged split in the BSP satisfies the conditions of paragraph 3 of the Tenth Schedule
Whether non‑compliance with Rule 3 of the Uttar Pradesh Disqualification Rules defeats a claim of split
The proper interpretation of "political party" in paragraph 2(1)(b) of the Tenth Schedule
Whether the Speaker's decision can be set aside on grounds of constitutional violation, malafides, denial of natural justice or perversity
Whether the delay in the Speaker's proceedings amounts to perversity

Legislation cited

Constitution of Indias. Article 136, s. Article 226, s. Article 227, s. Tenth Schedule – Para 2(1)(a), s. Tenth Schedule – Para 2(1)(b), s. Tenth Schedule – Para 3, s. Tenth Schedule – Para 6(1)

Subjects

anti‑defection lawdisqualification of legislatorssplit of political partyspeaker's jurisdictionjudicial reviewperversitynatural justiceUttar Pradesh Legislative AssemblyTenth Schedule

Judgment

A MAYAWATI
v.
MARKANDEYA CHAND AND ORS.

OCTOBER 9, 1998

B [M.M. PUNCHHI, CJ., K.T. THOMAS AND M. SRINIVASAN, JJ.]
[
Constitution of India, 1950 :

Tenth Scheiule-Paras l(b)(c), 2(1), 3 and 6
c Defection-Disqualification of member ofHouse---Ground ofdefection--
Power of Speaker to disqualijj;--Speaker 's decision-Judicial review-Scope
and extent of-Challenge to Speaker's order---Ground of perversity-Test to
determine perversity-What is-Delay in completion of defection
proceedings-Effect of
D
House-Members-Disqualification on the ground of defection-
Inapplicability in case of split-Claim of split by members-Necessary
conditions to prove claim.

Defection-Speaker's order of disqualification of members-When set
E aside by Supreme Court-Power of Court to remit back the matter for fresh
decision-Power to substitute order of Speaker.

Members of the Uttar Pradesh Legislative Assembly (Disqualification
on grounds of Defection) Rules, 1987 : Rules 3, 6 to IO.

F Defection Rules-Nature of-Non compliance with rules-Effect of-
Rules ofprocedure-Whether on par with constitutional mandate incorporated
in Tenth Schedule of the Constitution.

Words and Phrases : Expression-'Political Party'-Meaning of-In
the context of Para 2(/)(b)-Tenth Schedule-Constitutwn of India.

G The Chief Minister ofUttar Pradesh moved a Motion of Confidence in
the Legislative Assembly of the State ofU.P. The said Motion was put to vote
on 21.10.1997. On 20.10.1997 the appellant, who is the Leader ofBahujan
Samaj Party (BSP), issued a whip to all the Members of her party directing
them to be present in the Session of U.P. Legislative Assembly on 21.10.1997
H and vote against the Motion of Confidence moved by the B.J.P. Government
204
MAYAW ATI v. MARKANDEY A CHAND 205
However, twelve MLAs from Bahujan Samaj Party, respondents herein, voted A
in favour of the Motion of Confidence. On 24.10.1997, the 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
seeking a declaration that the respondents became disqualified under para
2(1)(b) of the Xth Schedule of the Constitution. In their written statement, B
respondents pleaded that a split took place between the Members ofB.S.P.
and that they along with some other MLAs, the total of which reached 23 in
number, have formed themselves into a new political party by name Janatantrik
Bahujan Samaj party. On 5.12.1997 the appellant filed an application for
amendment of the petition in which disqualification of respondents was
sought under Para 2(1Xa) of the Xth Schedule. The respondents filed additional C
written statement to the amended petition. As the names of all the 23 MLAs
who allegedly formed the split were not furnished, the Speaker directed the
respondents to file a list ofsuch 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 9.2.1998. But respondents failed to furnish the names of such
MLAs even by that extended time, and instead again they pleaded for more D
time. On 25.2.1998 a list of26 MLAs was furnished to the Speaker claiming
that they were the MLAs who formed a split group on 20.10.1997.

The Speaker pronounced his Judgment on 23.3.1998 dismissing the
petitions for disqualification holding that (i) respondents are not liable to be E
disqualified under Paragraph 2(1Xb) of the Xth Schedule because the person
who issued the direction on 20.10.1997 is not proved to be an authorised
person; (ii) 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; (iii) the whip issued on
20.10.1997 was ineffective since it was silent as to the consequences of its F
non-compliance; and (iv) the respondents were not liable to be disqualified
under Paragraph 2(1Xa) 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 I/3rd of the total members of the
Legislature Party of the BSP. G
In appeal to this Court it was contended on behalf of the appellant that
(1) Order of the Speaker suffers from jurisdictional errors based on violation
of the constitutional mandates non-compliance with Rules of natural justice
and perversity; (2) The recognition of the split by the Speaker was
unconstitutional because Rule 3 of the Disqualification Rules was not H
206 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A complied with by the respondents; (3) The context in Para 2(1)(b) r"quires
to equate" Political Party" with "Legislature Party" even though the ddinition
clause reads differently.

Referring the matter to Constitution Bench, this Court,
HELD : PER PUNCHHI. CJ.
B
1. Recording of events which take place in the House, which means
either House of Parliament or the Legislative Assembly or, as the case may
by, either House of the Legislature of a State, because Clause (b) of Paragraph
3 provides that 'from the time of such split, such faction shall deemingly
become the political party. The Speaker/Chairman in the nature of his role
C when informed of a split 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.
(217-B-C]

2. In Kihoto Hollohan case*, the majority, has summed up the nature
D 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, malafides, non-
E 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 Xth 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
F 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
G Speaker/Chairman, the scope of judicial review of the said administrative act
would be qualitatively different than what it is when testing his quasi-judicial
order as a Tribunal, Kihoto Hol/ohan 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 are necessary to be made
H before the matter can be examined as to the perversity or otherwise of the
MAYAWATI v. MARKANDEYA CHAND 207
Speaker's decision obligating him at a point of time to record categorically A
when the split took place thereby pinning the time ofsuch split. Therefore,
the matter be referred to the Constitution Bench for decision.
(217-D-E-F-G-H; 218-A]

*Kihoto Hallahan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651,
referred to. B
PER THOMAS, J. 1. The twelve respondents stand disqualified to be
members of the U.P. Legislative Assembly under Paragraph 2(l)(a) of the
Xth Schedule of the Constitution oflndia. (219-B]

2. Under para 3 of the Xth Schedule two conditions are sine qua non C
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 Legislative
Party representing a faction thereof. Second is that such group should
consist of not less than I/3rd of the members of such Legislature Party. D
(220-F]

3. 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
E
formation of a group consisting of not less than one third of the members
of that Legislature Party. 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 F
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 G
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 of 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 H
208 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A the Speaker to decide whether the protection envisaged in the 3rd Paragraph
can be afforded to the Members concerned. [224-G-H; 225-A-Cf

4. 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
B Paragraph 3 of the Xth Schedule. [225-D]

5. It cannot be said that rules of procedure are on par with 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
C authority conferred by the Xth Schedule that Disqualification Rules are
formulated "for giving effect to the provisions of this Schedule." What would
have happened ifthe Rules have not been formulated as enjoined by Paragraph
8 of the Xth Schedule? The provisions of Xth Schedule would remain
ineffective. So the Rules cannot be read in isolation from the provisions of
D the Xth Schedule, instead 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-
adoption of the procedure cannot be side-lined altogether as a mere procedure
and of no consequence. Compliance or non-compliance with Rules of
E procedure would very much help the authorities to decide whether there was
violation of the constitutional provision envisaged in the Xth Schedule.
[224-D-F)

Ravi S. Naik v. Union of India, [1994) Supp. 2 SCC 641, referred to.

6. Paragraph 6 of the Xth Schedule renders the decision of the Speaker
F
final. The Constitution Bench considered its validity in Kihoto Hallahan
case*. 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. However, the Bench held that
the scrpe of judicial scrutiny is limited to ascertain whether the decision of
G the Speaker is vitiated by jurisdictional errors viz. "infirmities based on
violation of constitutional mandate malajides, non-compliance with rules of
natural justice and perversity." [222-A-B]

7. 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
H can be subjected to judicial scrutiny only in the limited sphere indicated in
MAYAW ATI v. MARKANDEYA CHAND 209
Kihoto Hollohan viz. whether "the infirmities are based on violation of A
constitutional mandate, malajides, non-compliance with the rules of natural
justice and perversity." This is a case where appellant did not succeed in
showing a case of ma/a jides or non-compliance with the rules of natural
justice as for the conclusion arrived at by the Speaker. The main endeavour
was to show that the finding of the Speaker is vitiated by perversity in the B
sense that the conclusion is so unreasonable that no tribunal would have
arrived at it on the given facts. [225-E-F)

Kihoto Hollohan v. Zachillhu and Ors., [1992) Supp. 2 SCC 651,
followed.

8. The suggestion that if the conclusion reached by the Speaker is a C
possible conclusion it stands insulated from any outside interference
including by judicial exercise may lead to the situation that, no matter,
however illegal the order may be, it cannot be touched if its author is the
Speaker. Such an immunity cannot be conceded to any constitutional
functionary to be above law or to have unfettered jurisdiction to pass D
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,.t_he finding made by the Speaker is so
unreasonable or so unconscionable that no tribunal could have arrived at it
on the given materials. Parameters for scrutinising what is unreasonable E
are, of course, nebulous. What appears to be reasonable to one man may be
unreasonable to another and vice versa. However, the test of perversity has
now bogged down to this : No conclusion can be dubbed as perverse unless
the unreasonable is of such a dimension that no authority vested with the
jurisdiction would have come to such a conclusion. Even the oft quoted F
"Wednesbury principle of reasonableness" has not changed the said approach.
[225-H; 226-A-E)

Sitaram Sugar Company Ltd. v. Union of India, [1990) 3 SCC 223;
Tata Cellular v. Union of India, [1994) 6 SCC 651; Union of India v.
Ganayutham, [1997) 7 SCC 463 and Picture House v. Wednesbury G
Corporation, (1947) 2 All England Report 680, referred to.

9. It is an undisputed fact that at no time the number of BSP MLAs
who voted in favour of the motion 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). The H
210 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A number of individual MLA who held out that they left BSP had never reached
23 either then or ever now. Thus when admittedly the number of BSP MLAs
who supported the motion 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 '
B to them for that purpose including the last opportunity it is a perverse
conclusion overlooking the aforesaid formidable circumstances that 23 MLAs
had split from the BSP on 21.10.1997. 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. [227-H; 228-A)

C 10. No opportunity whatsoever was given to the appellant to controvert
the assertions made by respondents that there was a split as envisaged in
the Third Paragraph of the Xth Schedule. The appellant had in fact strongly
controverted the stand of the respondents regarding formation of a split.
Thus the basis of Speaker's conclusion i.e. appellant has not denied the
assertion of the respondents is non-existent. [228-C-D-F; 230-A)
D
11. 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 t~e 12 respondents who have defected
from the BSP on the said date cannot escape from the consequence provided
E in sub-clause (1) of Paragraph 2(1) of the Xth Schedule. In the light of this
finding it is unnecessary to consider the question relating to sub-clause (b)
of Para 2(1) of the Xth Schedule because such a venture would only be of
academic utility now. [230-H; 231-A-B)
12. In cases where the authority vested with jurisdiction has to consider
F and reach a fresh decision it is necessary that after exercising judicial
scrutiny the matter must go back to such authority or 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
G 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 it
has been found that the aforesaid protection is not available to them under
law in substitution of the contra finding made by the Speaker its inevitable
sequitur is that all the twelve respondents stand disqualified under Paragraph
H 2(1)(a) of the Xth Schedule of the Constitution. The impugned order would
MAY AW ATI v. MARKANDEYA CHAND 211

stand thus altered. However, this decision is not intended to disturb the A
. government of Sri Kalyan Singh in any manner so long as he commands
majority in the Legislative Assembly. But that aspect cannot detract the
Court from exercising power of judicial review of the impugned verdict.
[231-F-H; 232-A; 232-EJ

The Vice Chancellor, Utkal University v. S.K. Ghosh, [1954) SCR 883 B
and Mansukh Lal Vithaldas Chauhan v. State a/Gujarat, (199717SCC622,
referred to.

Re Amin, (1983) 2 All England Reports 864, referred to.

PER SRINIVASAN, J. 1. The findings arrived at by the Speaker are C
not vitiated by perversity. [266-F)

2. Para 3 of the Xth Schedule excludes the operation of para 2(l)(a)
and (b) where a member of a House makes a claim that he and any other
member of his legislature party constitute the group representing a faction
which has arisen as a result of a split in his original political party and such D
group consists of not less than one third of the members of such legislature
party. The following are the conditions for satisfying the requirements of the
para : (246-E-F-GJ
(i) A split in the original political party giving rise to a faction.
(ii) The faction is represented by a group of MLAs in the House. E
(iii) Such group consists not less than one third of the members of
legislature party to which they belong.
3. For the purpose of para 3 all the three conditions must be fulfilled.
It is not sufficient if more than I/3rd members of a legislature party form
a separate group and give to itself a different name without there being a F
split in the original political party. Thus the factum of split in the original
party' and the number of members in the 'group' exceeding I/3rd of the
members of the legislature party are the conditions to be proved.
[246-G-H; 247-AJ
G
4. Rule 3 provides for furnishing of information to the Speaker. Rule
6 provides for recording of such information in a register to be maintained
by the Secretary. There is not even a provision for presumption as to the
correctness of the entries in the register maintained under Rule 6. The
entries would at best only show that such information was furnished by such
and such member. The entries in the register cannot have any other effect H

1
212 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.

A whatever. Rule 10 enables the Speaker to issue from time to time such
directions as he may consider necessary in regard to the detailed working
of the rules. Rules 7, 8 and 9 set out the procedure for seeking disqualification
of a member. In this case the petitions for disqualifications were filed even
on 24.10.1997 long before the expiry of the period of 30 days specified in
B Rule 3. The question of disqualification had to be decided in those petitions.
The power to decide disputed disqualification under Para 6(1) of the Xth
Schedule is 'pre-eminently of a judicial complexion'. The Speaker or the
Chairman acting under Para 6(1) is a Tribunal. Can the entries in the
register maintained under Rule 6 by the Secretary have the effect of
establishing the two conditions required for para 3 of the Xth Schedule? It
C can if at all be only a piece of evidence in support of the claim of one party.
If as contended by the appellant's counsel, failure to comply with the rule will
prevent the raising of plea of split. The compliance of the rule must have the
effect of conclusively proving the conditions required for para 3. That will
lead to an anomalous situation. When a disqualification proceedings is initiated
D against the members who claim the benefit of para 3 they can defeat the
proceeding by furnishing some information to the Speaker under Rule 3 and
getting it recorded in the Register under Rule. Thus a matter which has to
be decided judicially under para 6(1) of the Xth Schedule may get decided
administratively by compliance of Rules 3 and 6. Undoubtedly such a status
cannot be given to the rules which are only procedural.[247-8-C-D-E-F-G) ·
E
5. The appellant's argument that the expression 'political party' in
para 2(1) (b) means 'political party in the House' in other words, the
'Legislature Party' runs counter to the definition contained in para l(c). The
expression 'original political party' in relation to a member of a House,
means the political party to which he belongs for the purposes of sub-
F paragraph (1) of paragraph 2. The said expression is used in para 3 only.
Para 2, does not at all use the expression 'original political party'. This
expression in para 3 is equated to the expression 'political party' in para
2(1). The definition clause in para l(c) does not make any distinction between
sub para (a) and sub para (b) of para 2. The term 'Legislature Party' having
G been defined in para l(b) could well have been used in para 2(1) (b) instead
of the term 'political party' if the intention of the Parliament was to refer
only to the Legislature Party. [240-E-F-G)

6. There is another feature in para 3(b) which negatives the appellant's
argument. According to para 3(b), from the time of split in the original
H political party such as the one referred to in the first part of the para. The

}r
MAYAWATI v. MARKANDEYA CHAND 213
faction referred to therein shall be deemed to be the political party to which A
the concerned member belongs for the purposes of sub-para (1) of para 2 and
to be his original political party for the purposes of paragraph 3. The entire
sub-paragraph (1) of para 2 is referred to therein meaning thereby both
clauses (a) and (b) of the sub-para (1) and no distinction is made between the
two clauses. Hence for the purposes of clause (a) as well as clause (b) the B
faction referred to in the first part of para 3 shall be deemed to be the
original 'political party, mentioned in para 3. Thus it is clear that 'political
party' in clause (b) of sub-para (1) of para 2 is none other than 'original
political party' mentioned in Para 3. [240-H; 241-A-B-C)

7. The argument that the context in Para 2(1) (b) requires to equate C
'political party' with 'legislature party' even though the definition clause
reads differently is not acceptable. [241-D)

8. There is no merit in the contention that the Legislature Party may
have to take decisions on urgent matters in the House and as it represents
the original political party in the House. Whatever direction is issued by the D
Leader of such Legislature Party must be regarded as a direction issued by
the political party. When the provision in the Constitution has taken care
to make a distinction between the Legislature Party and the original political
party and prescribe that the direction should be one issued by the political
party or by any person or authority authorised in this behalf, there is no
meaning in saying that whatever the Leader of the Legislature Party directs E
must be regarded as that of the original political party. [241-F-G)

9. If the direction referred to in para 2(1) (b) is to be restricted to the
two kinds referred to in the said passage, there is no doubt that .'political
party' in para (1) (b) refers only to the 'original political party' as it is only
such party which could issue such directions. In such matters, the members F
of the House would certainly be given sufficient notice in advance and original
political party would have sufficient time to take decisions and issue directions.
[242-H; 243-A)
10. No distinction can be made between sub para (a) and sub para (b)
of Para 2(1) viz a viz the meaning of the 'political party' and that it means G
only the original political party. [243-G)

D. Sripada Rao, "Anti-Defection Law-Split in Parties", "Journal of
Parliamentary Information", (1999) 39 p. 104-105, referred to.

11. The power the judicial review viz a viz the order of the Speaker H
214 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A under Paragraph 6(1) of the Xth Schedule is confined to jurisdictional
errors only based on violation of constitutional mandate, ma/a fides, non
compliance of rules of natural justice and perversity. (237-E)

12. Merely because there is a delay in concluding the hearing, the
order cannot be said to be perverse. The Speaker has framed the question
B properly as to whether a split as alleged by the respondents had taken place
on 21.10.1997 and whether it was supported by acceptable evidence. This
Court in exercise of its power of limited judicial review has only to see
whether the findings arrived at by the Speaker are perverse. It cannot be
accepted as a matter of law that delay in the completion of proceedings would
C by itself vitiate the order passed by him. But it is absolutely necessary for
every Speaker to fix a time schedule in the relevant Rules for disposal of
the proceedings for disqualification of MLAs or MPs. AH such proceedings
shall be concluded and orders should be passed within a period of three
weeks from the date on which the petitions are taken on file.
(256-G-H; 257-A-B)
D
Kihoto Hollohan v. Zachillhu and Ors., [1992) Supp. 2 SCC 651;
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947)
Vol. 2 AH England Reports 680; Tata Cellular v. Union of India, (1994) 6
SCC 651 and Union of India and Anr. v. V.G. Ganayutham, (1997) 7 SCC
463, referred to.
E
Theatre de Luxe (Halifax) Ltd. v. Gledhill, 5(1915) 2 K.B. 49; CCSU
v. Minister for Civil Service, (1984) 3 All E.R. 935 and Notitinghamshira
Country Council v. Secretary of the Environment and Anr., appeal (1986) Vol.
l All E.R. 199 and Re Amin, (1983) 2 AH E.R. 864, referred to.

F 13. The question before this Court is not whether in the facts and
circumstances of ~he case there was a split as alleged by the respondents
on 21.10.1997 but the question is whether the conclusion arrived at by the
Speaker after taking note of all the aforesaid circumstances for and against
the respondents is so unreasonable or absurd or perverse that he must have
taken leave of his senses. (265-H; 266-A)
G
I 4. The Speaker has not left out any relevant material from
consideration: nor has he referred to any irrelevant matter. In the facts and
circumstances of this case it cannot be said that no reasonable or sensible
person who had applied his mind to the question to be decided could have
armed at the findings given by the Speaker. While dealing with the question
H of perversity it should not be forgotten that there was no bias or malafide
MAYAWATI v. MARKANDEYA CHAND 215
on the part of the Speaker. If the materials on record are considered on that A
basis it can at best be said that two conclusions were possible and the
Speaker has chosen one of them. In the circumstances one cannot find any
perversity in the findings rendered by the Speaker. [266-B-C)
15. All circumstances referred to and relied on by the Speaker are
quite relevant and germane for deciding the issue whether there was split B
on 21.10.1997 and whether the group led by Markandeya Chand had not less
than l/3rd members of the BSP Legislature Party. Apart from this the
Speaker has considered the various facts relied on by the appellant and
discussed the same. All the circumstances relied on by the appellant have
been referred to and discussed in detail by the Speaker in his order. If any
of them had been ignored, it could be said that his order is vitiated. But that C
is not the case here. When there is no bias or mala fide, the acceptance of
one party's statement on facts and rejection of the other cannot be canvassed
before this Court. [261-C-D; H; 262-A)

16. It has been rightly held by the Speaker that there is no material D
whatever to hold that the direction issued on 20.10.1997 was issued by the
BSP or that the appellant was authorised by the BSP to issue such a
direction. [243-H; 244-A)

17. There is also no difficulty in accepting the finding of the Speaker
that the direction dated 20.10.1997 was not in accordance with the law laid E
down by this Court in 'Hollohan '. Hence the Speaker has not violated para
2(1) (b) of the Xth Schedule. [244-B; E)

18. The Speaker has found on the basis of the records that the appellant
instructed the members of the BSP to indulge in violence and disrupt the
proceedings in the Assembly on 21.10.1997. It is also found that the allegations F
made by the respondents that the members of the BSP were kept under
threat by the appellant and prevented from entering Lucknow. In view of such
finding also which is supported by records, the discretionary jurisdiction
under Article 136 of the Constitution should not be exercised in favour of
the appellant. [268-B)
G
19. There is no violation of principles of natural justice in the Speaker's
taking on record the two affidavits filed by the respondents on 25.2.1999.
The contention that the appellant had no opportunity to controvert the affKlavits
filed before the Speaker on 25.2.1998, 4.3.1998 and 10.3.1998 cannot be
accepted. Even if it is so there is no violation of principles of natural justice.
It has not been proved by the appellant that there is a failure of substantial H
216 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A justice. In the absence of bias and malafides, the contention that the order
of the Speaker is vitiated by violation of principles of natural justice has to
fail. [255-E; 256-D; 253-B)

The Chairman Board of Mining Examination and Chief Inspector of
Mines and Anr. v. Ramjee, (1977) 2 SCC 256, referred to.
B
20. In view of the above position, it is not necessary to consider the
question whether this Court should decide the entire matter here in the
event of setting aside the order of the Speaker or remand the matter for
fresh disposal by the Speaker in accordance with the judgment of this Court.
However, for the sake of completion, it is necessary to express opinion on
C that question too. It is not the function of this Court to substitute itself in
place of the Speaker and decide the questions which have arisen in the case.
When the Xth Schedule has expressly constituted the Speaker or the
Chairman as the case may be to decide the question of disqualification and .•
attach finality thereto. It is not for this Court to consider the facts and decide
D the said question by substituting itself in the place of the Speaker. If the
order of the Speaker is set aside on any of the grounds mentioned in
'Hollohan' case by exercising the power of limited judicial review, the
consequential course to be adopted is to leave the matter to the Speaker to
decide afresh in accordance with law. [266-G-H; 267-H; 268-A)

E Bengal Chemicals Pharmaceutical Works Ltd. Calcutta v. Their
Workmen, [1959) Supp. 2 SCR 136; Hindustan Tin Works Pvt. Ltd. v.
Employees of Hindustan Tin Works Pvt. Ltd., [1979) 1 SCR 563 and Vice
Chancellor, Utkal University v. S.K. Ghosh, [1954) SCR 883, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5057 of
F 1998 etc.

From the Judgment and Order dated 23.3.98 of the Speaker Legislative
Assembly, U.P.

Kapil Sibal, Dr. L.M. Singhvi, Ashok H. Desai, R.K. Jain, Rakesh Dwivedi,
G M.R. Sharma, Ranjit Kumar, Ashok Nigam, Ms. Anu Mohla, Chander Bhushan,
Rajesh Pathak, A. Kumar, Ajit Kumar Singh, Pallav Sisodia, Manoj Goel, Ms.
Richa Goyal, Anurag Dubey, Ms. Rani Chhabra, S.N. Bhat, N.P.S. Panwar,
Ajay K. Agarwal, Ms. Alka Agarwal, Ms. Anamica Agarwal, Manoj Goel, R.C.
Verma, Chatanya Siddarth, Kamlendra Misra, K.N. Balgopal, Devendra Singh
H Ms. Diva Singh, A.P. Mukunden and Y.P. Dhingra for the appearing parties.·
MAYAWAT!v. MARKANDEYACHAND [PUNCHHl,CJ.] 217
The Judgments of the Court were delivered by : A
PUNCHHI, CJ. 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 B
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 deemingly become the political party. The Speaker/Chairman in
the nature of his role when informed of a spilt is administratively the time C
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.

In Kihata Hallahan v. Zachillhu and Ors., [1992] Supp. 2 SCC 651, the
majority, in Paragraph I 09, has summed up the nature of the function exercised D
by the Speaker/Chairman under Paragraph 6( I) 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, malajides, non-compliance with rules of natural justice E
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 0nly 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 F
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 G
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( I) on reference of the question of disqualification, inviting his decision, and
leaves his role under Paragraph 3 untouched. These determinations of H
218 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A importance, in my view, are necessary to be made before the matter can be
examined as to the perversity or otherwise of the Speaker's 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.

B THOMAS, J. Leave granted.

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
C 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
D tentacles of disqualification envisaged in the Xth Schedule to the Constitution
of India. Hence this appeal by special leave.

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
E 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
F 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.
G
"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".

H On 21.10.1997 twelve MLAs from BSP (respondents) voted in favour of
MAYAWAT!v. MARKANDEYACHAND[THOMAS,J.] 219
the motion of confidence moved by Shri Kalyan Singh. A violent pandemonium A
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, B
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 C
seeking incorporation of an additional ground for disqualification which is
envisaged in Paragraph 2(l)(a) of the Xth Schedule. Additional written statement
was filed by the respondents to the amended petition.

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 D
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 9.2.1998. 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 c~aiming that they were the MLAs who E
formed a split on 21.10.1997.

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 F
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 G
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
I/3rd of the total members of the Legislature Party of the BSP.

It would be advantageous to consider first whether the disqualification
envisaged in sub-clause (a) of Paragraph 2(1) of the Xth Schedule should H
220 SUPREME COURT REPORTS [1998] SJJPP. 2 S.C.R.

A have visited the respondents because it is admitted by the respondents
themselves that they ceased to be members ofBSP 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:

B "3. Disqualification on ground of defection not to apply in case of
split. \\'here 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 ·,plit in his original political
party and such group consists of not less than one-third of the
members of such Legislature party:-
c
(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
D
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

E (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
(I) of paragraph 2 and to be his original political party for the purposes
of this paragraph".

Two conditions are sine qua non for avoiding the disqualification when
p 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 I/3rd of the members of such
Legislature Party.
G
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 I/3rd of the members
thereof. It appears that the Speaker has proceeded on the assumption that a
H claim has been made as provided in the said Paragraph.
MAYAWAT!v. MARKANDEYACHAND[THOMAS,J.] 221

Regarding the second condition the Speaker held that "there was a split A
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 of26 BSP MLAs was constituted
on 21-10-97 itself representing the faction which did arise and that group is
known as Janatantrik BSP".

According to the respondents, the aforesaid finding being a finding of B
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.

The scope of judicial scrutiny on matters pertaining to the decision of C
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) Supp. 2 SCC 651. 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 D
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". E

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: F

"It would, indeed, be unfair to the high tradi<ions 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 G
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." (Para 118)

Accordingly, the contention that vesting of adjudicatory functions in
the Speaker would vit'ate the provision on the ground of likelihood of political H
222 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A bias was rejected.
Paragraph 6 of the Xth Schedule renders the decision of the Speaker
final. The Constitution Bench considered its validity in Kihoto HoJlohan
(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
B 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, ma/a
C fides, non-compliance with rules of natural justice and perversity."

Shri Kapil Sibal, learned senior counsel who argued for the appeJlant
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
D 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
E Speaker only if it is foJlowed 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 foJlowing 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
F 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.

G "Legislature Party" is defined in Paragraph I(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 I/3rd members of the parent
legislature party which was constituted as a sequel to the split arisen therefrom
H is also deemed to be a legislature party. The leader of such newly formed
MAYAWAT!v. MARK.ANDEYACHAND [THOMAS,J.) 223
legislature party is also obliged to comply with the requirements contained A
in Rule 3 of the Disqualification Rules.

""
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. B
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 C
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] Suppl. 2 SCC 641 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 D
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 E
not liable to be disturbed.

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 F
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 G
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 H
224 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A Hollohan case."

In Kihoto Hallahan 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
B observations made by the Bench in the succeeding portion in Kihata Hallahan:

"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
c 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."
D 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
E 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.
F 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
G provision envisaged in the Xth Schedule.

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
H Legislature party. We have to bear in mind that clause (b) of Paragraph 3
MAYAWATlv. MARKANDEYACHAND[THOMAS,J.) 225
· mandates that "for the purposes of this paragraph" such factions shall be A
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, B
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 :ndication to dispense with the
promptitude in furnishing those particulars. The time 30 days fixed in Rule 3 C
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.
D
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.

The Speaker has accepted the plea of the respondents that there was E
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, ma/a jides, non-compliance with the rules of natural
justice and perversity." This is a case where appellant did not succeed in F
showing a case of ma/a 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.
G
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 H
226 SUPREME COURT REPORTS (1998) SUPP. 2 S.C.R.
•
A 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.

The said extreme proposition may lead to the situation that, no matter,
B 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
C 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.

Parameters for scrutinising what is unreasonable are, of course, nebulous.
D 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
E 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 England Report
680 has not changed the said approach.
F 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
G
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
H must not be done ........ Similarly, you may have something so absurd
MAYAWATI v. MARKANDEYACHAND [THOMAS,].] 227

that no sensible person could ever dream that it lay within the powers A
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."

No departure from the said principle is warranted, more so because the B
Wednesbury ratio has gained approval of this Court in a number of decisions
vide Sitaram Sugar Company Limited v. Union of India, [1990] 3 SCC 223;
Tata Cellular v. Union of India, [1994] 6 SCC 651; Union of India v.
Ganayutham, [1997] 7 SCC 463.

The Speaker has, in the impugned order, adverted to the following facts
c
to support his conclusion:

(I) In the affidavit filed by Shri Vansh Narain Patel (6th respondent)
and others on 2.2.1998, it is mentioned that a split was formed
on 21-10-1997 at the lobby of the House when "not less than 1/ D
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 E
affidavits.
(3) On 21-10-1997 Shri Vansh Narain Patel (6th respondent)
announced on the floor of the House that more than I/3rd
MLAs of the BSP have come out of the party.
(4) Even though the respondents failed to mention the names of the F
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 G
"despite opportunity having been given."

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.
H
228 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.

A It must be remembered that it is an undisputed fact that at no time the
number ofBSP MLAs who voted for Kalyan Singh's 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
B 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).

C If what the Speaker has pointed out is correct (that the assertion
contained in the affidavit filed by R-1 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
D 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 of25-2-1998. The observation
of the Speaker to tlie contrary is without any foundation. The proceedings
minuted by the Speaker himself on 25-2-1998 at 6.00 P.M. contained the
E 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
p 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."

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
G 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:

H "Today at about 4 P.M. I have been informed that Shri Narendra Singh
MAY AWATI v. MARKANDEY A CHAND [THOMAS, J.] 229

submitted an additional list of 9 MLAs in addition to the above A
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."
B
Appellant had produced affidavits of 9 MLAs along with the said
petition. All 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:
c
"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 D
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 E
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."

Now the contention is that the said affidavits were procured in November F
1997 and hence they cannot be answers to the affidavits of the I st 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 G
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 !st respondent !Jroclaimed the names of26
MLAs who have defected on 21.10.1997? But when we perceived the
promptitude with which appellant controverted it and supported her statement H
230 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A 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.

Thus the basis of Speaker's conclusion i.e. appellant has not denied the
assertion of the respondents made in the affidavit dated 25.2.1998, is non-
B existent. 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 Singh's Government, the fact remained that only 12 MLAs
C (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 ofBSP MLAs who
supported Kalyan Singh 's 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
D opportunities to them for that purpose, including the last opportunity on
9.2.1998, 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
E materials made available to him.

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
F 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
G 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 afore-
cited illustration.

H l, therefore, unhesitatingly hold that the finding of the Speaker that a
MAY A WATI v. MARKANDEY A CHAND [THOMAS, J.] 231
split arose in the BSP on 21.10.1997 forming a group representing a faction A
consisting of not less than I/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.

In the light of our above finding, it is unnecessary to consider the next B
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.

Learned senior counsel for the respondents made an alternative
contention that in the event this court holds that the finding of the Speaker C
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] SCR 883 and Mansukh Lal Vitha/ das D
Chauhan v. State of Gujarat, [1997] 7 SCC 622.

Learned counsel then invited our attention to the following passage
from Fraser's speech in Re Amin {1983 (2) All England Reports 864}.

"Judicial review is entirely different from an ordinary appeal. It is made E
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."

The above passage has been quoted with approval by a three Judge F
Bench of this Court in Tata Cellular v. Union of India, [1994] 6 SCC 651.

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 G
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 H
232 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A found that the aforesaid protection is not available to them under law in
substitution of the contra finding made by the Speaker, its inevitable sequetor
is that all the twelve respondents stand disqualified under Paragraph 2(1 )(a) L
of the Xth Schedule of the Constitution. The impugned order would stand
thus altered.

B 1 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
C 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
D reasoning:

"Even when those 12 members are taken to have voted in favour of
Sri Kalyan Singh, their votes when substracted 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
E minority."

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
F 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.

In the result this appeal is allowed by declaring that the twelve
respondents stand disqualified to be members of the U.P. Legislative Assembly
G under Paragraph 2(\)(a) of the Xth Schedule of the Constitution of India.

SRINIVASAN, J. Leave granted.

I have had the advantage of perusing the draft judgment prepared by
learm:d brother Thomas, J. I am unable to agree with the same. My judgment
H in this case is as follows:
MAYAWAT!v. MARKANDEYACHAND[SRINIVASAN,J.] 233
A. PRELUDE A
I.Though the Anti-defection law contained in Articles 101,102, 190 and
191 and the 10th Schedule of the Constitution was born after a very long
period of gestation (from 1967 to 1985), it has not had the desired effect. The
need for scrapping it and ushering in a new law has been realized. It is hoped
that before a new law is enacted regard will be had to the following passage B
in Chawla's Election Law and Practice (6th Edn.) p.1589:

"Looked at from a more fundamental angle, inasmuch as the point of
reference for every case of defection is a political party, no refonns
in the Anti Defection Law would be meaningful without a deep analysis
of the conception, structure, functioning and role perception of political C
parties in our polity.

Parties as they exist and operate today hardly deserve any protection
against defection by their members. If parties are not based on any
principles, ideologies or programmes and if they are not democratically
run, there can be no question of any principles being involved in D
either defecting or staying with a party.

2. The events in the Legislative Assembly of the State of Uttar Pradesh
after the general elections in 1996 justify the above view. While expressing
my concurrence with the above view, I wish to point out with great dismay
that those days of statesmen who rendered selfless service to the country are E
gone and alas! these are days of politicians who want the country to serve
them. But the issues in this case have to be resolved by constitutional
measurement, free of any predilection.

B. CHRONOLOGY.
F
3. In the general elections to the U.P. Legislative Assembly which took
place in 1996 no political party obtained absolute majority. There was an
agreement between the Bhartiya Janata Party ('BJP' for short) and the Bahujan
Samaj Party ("BSP' for short) to support each other for running the
Government. The BSP had 67 MLAs who were elected on its election symbol. G
The BSP had 175 members in its fold. Pursuant to the agreement the appellant
belonging to BSP became the Chief Minister of the State on 21.3.97. On
21.9.97, Kalyan Singh belonging to the BJP became the Chief Minister. On
19. I 0.97 the appellant announced withdrawal of participation and support of
BSP to the coalition government. All the BSP Ministers resigned from the
Government. Immediately the Governor of the State convened a special Session H
234 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A of Assembly at 11.00 A.M. on 21.10.97 and told Kalyan Singh to prove his
majority on the Floor of the House. On 20.10.97 the appellant issued a whip
directing all BSP MLAs to remain present in the House throughout the
proceedings on the next day and vote against the Motion of Confidence to
be moved by the Chief Minister.

B 4. On 21.10.97 there was pandemonium and violence in the Assembly
and several MLAs went out of the House. In the proceedings which followed,
222 Members of the Assembly voted in favour of the Government. There was
no vote opposing the Motion.

5. In the speeches which followed, Mr. Sardar Singh congratulated the
C speaker for being able to preside over tile Assembly without getting hurt. He
narrated as to how instructions were given by the appellant to the members
of BSP to indulge in violence and cause confusion including causing hurt to
the Speaker. Markandeya Chand another member told the Speaker that along
with him 23 others had quit the BSP and supported the Government.
D Respondents I to 12 had voted in support of the Motion.
6. On 24.10.97, 13 petitions were filed by the appellant seeking
disqualification of respondents I to 12 as well as one Hari Krishan on the
ground of violation of whip issued by her on 20.10.97. The petitions invoked
only clause 2(1)(b) of the Tenth Schedule to the Constitution. On 27.10.97
respondents I to 12 became Ministers and joined the Cabinet. On 11.11.97
E another set of 13 petitions similar to those filed by the appellant were filed
by one Mr. R.K. Chowdhary claiming the same relief on the same ground.
After removal of defects by amendments, the petitions were taken on file and
notice was ordered. In these proceedings we are not concerned with the
petition against Hari Krishan which was later dismissed as withdrawn. On
F 25.11.97 respondents 1 to 12 filed written statement in which it was inter alia
pleaded that a split took place between the Members of the BSP on 21.10.97
and more than I/3rd Legislators of the BSP got separated. It was averred that
the appellant had instructed the members of her Legislature Party to disturb
the proceedings of the Assembly and cause hurt to the Speaker. On the very
next day i.e. 26.11.97 the appellant filed a replication statement in answer to
G the written statement of the respondents. There was no denial whatever of
the split referred to in the written statement. The only plea in that replication
pertained to the whip issued on 20.10.97 and the non-withdrawal of the same
by the appellant on 21.10.97.

7. On 5.12.97 the appellant filed an application for amendment of the
H petition in which disqualification of the respondents was sought under clause
MAYA WAT! v. MARKANDEYACHAND[SRINIVASAN,J.) 235
2(l)(a) of the Tenth Schedule. The relevant part of the pleading was as A
follows:

"That it is clear from the perusal of the reply of the respondent filed
on this petition on· 25.11.97 that the respondent has voluntarily given
up the membership of Bahujan Samaj Vidhan Dal. That the respondent
had contested and won the elections of Vidhan Sabha on the ticket B
of BSP and in this manner he is disqualified from the membership of
the Vidhan Sabha.

There was also a denial of the correctness of the Statement made by
Markandeya Chand on the Floor of the Assembly on 21.10.97 that 23
Legislators of BSP were supporting him. c
8. Inspite of opposition by the respondents the amendment was allowed
by the Speaker. That order was challenged by the respondents in W.P. No.
348of1998 on the file of the High Court of Allahabad, Lucknow Bench. That
writ petition is said to be pending after notice. Thereafter an additional written D
statement was filed by Vansh Narain Singh on 2.2.1998. These was a narration
of the split in BSP and formation of new group named as Jantantrik BSP
(' JBSP' for short). The reasons for such a split were set out in detail. It was
further stated that the members of JBSP were not less than I/3rd of the total
number of BSP MLAs. It was also averred that the appellant and a few other
members of the BSP started terrorising and threatening the members of the E
JBSP with attack on their lives and also prevented their coming to and going
from Lucknow. There was also an allegation that signatures of some of those
persons who had become members of JBSP were taken on blank papers by
coercion. The appellant did not file any reply statement.

9. On 24.2.98 the hearing of the matter started. It continued on 25.2.98. F
During the course of the hearing respondents 1 to 12 filed two affidavits
containing a list of 26 names who formed part of the group on 21.10.97. An
explanation was given in the affidavits as to why there was delay in furnishing
the names of those MLAs. Some of the members mentioned in the list were
present before the Speaker along with the respondents. The appellant filed G
nine affidavits on the same day around 7.40 P.M. The hearing concluded on
25.2.98 and orders were reserved.

10. Thereafter on 4.3.98 and 10.3.98 the respondents filed another set of
affidavits repeating almost the case already put forward. On 16.3.98 R.K.
Chaudhary applied for certified copies of those affidavits. When the said H
236 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A certified copies were furnished he was infonned that if he had any submissions
to be made in regard to those affidavits he could present the same on 19.3.98
at 1.00 P.M. No further affidavits were filed by the appellant or R K Chaudhary.
The speaker pronounced the judgment on 23.3.98 dismissing the petitions for
disqualification. He recognized 19 MLAs as fonning a separate political party
B by the name JBSP.

11. It is that judgment of the Speaker which is challenged in this appeal.
Originally S.L.P. was filed against r~spondents I to 12 only. When the matter
came before Court on 10.8.98, on the request of the appellant's counsel the
Speaker was added as a party (13th respondent) and the matter was adjourned
C to 25.8.98. On the latter date the following order was passed:

"Mr. Sibal, learned senior counsel for the petitioner states that the
Speaker was got impleaded as a party because of the first respondent
having raised an objection in his counter that the Speaker should
have been made a party. Mr. Sibal further states that the Speaker,
D otherwise, is a profonna party and he need not file a counter."

The matter was directed to be listed for final disposal on 8.9.98 and liberty
was given to the counsel for respondents to file additional affidavits if
necessary. The case was heard on 8th to I 0th, the afternoon of I Ith and the
afternoon of 14th.
E
C. FINDINGS OF THE SPEAKER

12. (i) The direction/whip dated 20.10.97 by the appellant was not issued
in accordance with paragraph 2 (!)of the Xth Schedule of the Constitution
and as such it was unconstitutional and illegal with the result the respondents
F are not liable to be disqualified under that paragraph for voting contrary to
it.

(ii) The petitions filed by the appellant did not fulfil the requirements
of 'The Members of Uttar Pradesh Legislative Assembly (Disqualification on
grounds of Defection) Rules, 1987' (hereinafter referred to as the Rules) in as
G much as they did not contain a statement of material facts and consequently
the petitions were liable to be dismissed under Rule 8 (ii) of the said rule.

(iii) The appellant had in fact issued a direction on 21.10.97 to the B.S.P.
M.L.As for creating disturbances and committing violence in the House on
that date and, therefore, the direction issued by her earlier on 20.10.97 was
H superseded/withdrawn/waived and made ineffective. As such, the respondents
MAYAWATlv. MARKANDEYACHAND[SRINIVASAN,J.] 237

could not be disqualified for having voted contrary to the direction dated A
20.10.97.

(iv) There was a split in the B.S.P. on 21.10.97 as a result of which there
arose a faction and 26 M.L.As mentioned in annexures I and 2 of Chowdhary
Narender Singh's affidavit dated 24.2.98, who were more than I/3rd members
of the BSP Legislature Party, constituted a group representing the said faction. B
Consequently, the group became the 'original political party' known as JBSP.
The members of the said group were entitled to protection of para 3 of the
Xth Schedule of the Constitution. Further, after the split of the BSP and
formation of the group of26 MLAs on 20.10.97, there was a further split in
the JBSP on 15.1.98 as a result of which 19 MLAs continued to remain C
members of JBSP Legislature Party.

(v) As a result of the aforesaid findings the petitions filed by the
appellant and the petitions filed by R.K.Chaudhary were dismissed. The 19
persons set out in the order were declared as members of JBSP in the
Assembly. D
D. CONTENTIONS

13. Mr Kapil Sibal, who appeared for the appellant, submitted that the
order of the Speaker suffers from jurisdictional errors based on violation of
the constitutional mandates, non-compliance with rules of natural justice and
perversity. He stated expressly that he was not attacking the order on grounds E
of bias or ma/a fides, though they were raised in the S.L.P.

14. Dr. L.M. Singh vi argued on behalf of the first respondent, while Mr.
Ashok Desai represented respondents 2 and 3. Mr. R.K. Jain argued for
respondents 4,5 and 6 and Mr. K.N. Balgopal represented the 7th respondent.
The substance of the contentions urged on behalf of the respondents is as F
follows:

The order of the Speaker is a well structured one. The findings of facts
rendered by him are based on the evidence on record. The order does not
suffer from any perversity. Nor is it vitiated by violation of Constitutional
mandates or principles of natural justice. Even if the order is set aside, the G
matter has to go back to the Speaker for a fresh decision in accordance with
the judgment of this Court.

E. ARTICLE 145(3) OF THE CONSTITUTION

15. In the midst of his arguments Dr. Singhvi invited our attention to H
238 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A Article 145(3) of the Constitution of India and submitted that as the case
involves several substantial questions of law as to the interpretation of the
Constitution it should be heard by minimum number of five Judges. When the
said submission was made, arguments had already been heard for two days.
The Hon'ble the Chief Justice observed that there is an 'Interpretation Clause'
B in the Xth Schedule and every question of law is not a substantial question
of law. Dr. Singhvi did not persist the matter further. However, Mr. Ashok
Desai, who argued on the last day of the hearing, handed over a paper setting
out proposed substantial questions of law/questions as to interpretation of
Constitution. He has mentioned 9 questions therein. In my view question
numbers 4 and 9 therein fall within the ambit of Article 145(3). They read as
C follows:

"4. The manner, authority, and other requirements of a valid whip
for disqualification under Clause 2 (I) (b) of the Xth Schedule,
especially the meaning of expressions "political party" and of "any
person or authority authorised".
D
"9. Whether order of speaker refusing to disqualify members of
House be substituted by disqualification in course or judicial review".

F. DISCUSSION
E 16. The contentions of the appellant's counsel can be classified under
three main heads
(i) violation of Constitutional Mandates (ii) violation of principles of
Natural Justice; (iii) perversity.
(i) Violation of Constitutional Mandates.
F This can be sub divided into two:
(a) violation of para 2 (I) (b); (b) violation of para 2.(1) (a) of the Xth
Schedule of the Constitution.
A common defence to grounds under both sub paras (a) and (b), is
available in para 3. If the situation contemplated in para 3 is proved,
G neither para (a) nor para (b) will help the appellant. Para 2(1) is in the
following terms:
"2. Disqualification on ground of defection - (I) Subject to the
provisions of paragraphs 3,4 and 5, a member of a House. belonging
to any political party shall be disqualified from being a member of the
H House, -
MAYAWATlv. MARK.ANDEYACHAND[SRINIVASAN,J.) 239
(a) if he has voluntarily given up his membership of such A
political party; or

(b) If he votes or abstains from voting in such House contrary
to any direction issued by the political party to which he belongs
or by any person or authority authorized by it in this behalf,
without obtaining, in either case, the prior permission of such B
political party, person or authority and such voting or abstention
has not been condoned by such political party, person or
authority within fifteen days from the date of such voting or
abstention. Explanation - For the purposes of this sub-paragraph,

(a) an elected member of a House shall be deemed to belong to the C
political party, if any, by which he was set up as a candidate for
election as such member;

(b) a nominated member of a House shall, -

(i) Where he is a member of any political party on the date of D
his nomination as such member, be deemed to belong to such
political party;

(ii) in any other case, be deemed to belong to the political party
of which he becomes, or, as the case may be, frrst becomes a
member before the expiry of six months from the date on which E
he takes his seat after complying with the requirements of Article
99 or, as the case may be, Article 188".

Para 3 reads as follows:-

3. Disqualification on ground of defection not to apply in case of F
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,
G
(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 H
.,
240 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A 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
(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 (I) of paragraph 2 and to be his original political
party for the purposes of this paragraph."

c (a) Violation of para 2 (I) (b)
17. Apart from the defence under para 3, an additional defence relating
to para 2 (I) (b) has been raised in this case. That has been accepted by the
Speaker and findings have been rendered accordingly. Though it is a question
involving interpretation of a provision in the Constitution and requires to be
D decided by a Bench of at least five Judges, I am bound to express my opinion
here as the case has been heard fully by this Bench. Both parties argued the
question at length before the Speaker and invited his findings. Before us also,
the appellant's counsel argued it at length and the respondents' counsel
replied. Henci;, it is necessary to express an opinion.

E 18. The argument of the appellant is that the expression 'political party'
in sub-para (b) means 'political party in the House', in other wor~s, the
'Legislature Party'. This argument runs counter to the definition contained in
para l(c). According to that definition, 'original political party' in relation to
a member of a House, means the political party to which he belongs for the
purposes of sub-paragraph (I) of paragraph 2. The expression 'original political
F party' is used in para 3 only. Para 2, does not at all use the expression 'original
political party' . The said expression in para 3 is equated to the expression
'political party' in para 2(1 ). The definition clause in para I (c) does not make
any distinction between sub para (a) and sub para (b) of para 2. But the
appellant's counsel wants to make such a distinction. According to him
G 'political party' in sub para (a) would refer to 'original political party' but the
same expression in sub para (b) would refer only to the 'Legislature Party'.
The term 'Legislature Party' having been defined in para l(b) could well have
been used in para 2 (I) (b) instead of the term 'political party' ifthe intention
of the Parliament was to refer only to the Legislature Party.

H 19. There is another feature in Para 3 (b) which negatives the appellant's
MA YAWAT!v. MARKANDEYACHAND[SRINIVASAN,J.) 241
argument. According to para 3(b), from the time of split in the original political A
party such as the one referred to in the first part of the para, the faction
referred to therein shall be deemed to be the political party to which the

- concerned member belongs for the purposes of sub-para (1) of para 2 and to
be his original political party for the purposes of paragraph 3. The entire sub-
paragraph (I) of para 2 is referred to therein meaning thereby both clauses B
(a) and (b) of the sub-para 1 and no distinction is made between the two
clauses. Hence for the purposes of clause 'a' as well as clause 'b', the faction
referred to in the first part of para 3 shall be deemed to be the 'political party'
mentioned in the sub-para and the same faction shall be deemed to be the
original 'political party' mentioned in para 3. It is thus clear that 'political
party' in clause (b) of sub-para (I) of para 2 is none other than 'original C
political party' mentioned in para 3.

20. The argument that the context in para 2 (1) (b) requires to equate
'political party' with 'legislature party' even though the definition clause
reads differently is not acceptable, A reading of sub para (b) the Explanation
in para 2 (1) places the matter beyond doubt that the 'political party' in sub D
para (b) refers to the 'original political party' only and not to the Legislature
Party. According to the explanation, for the purpose of the entire sub para,
an elected member of the House shall be deemed to belong to the political
party, if any, by which he was set up as a candidate for election as such
• member. Certainly, the Legislature Party could not have set up the concerned E
member as a candidate for election.

21. According to learned counsel for the appellant, the Legislature Party
may have to take decisions on urgent matter in the House and as it represents
the original political party in the House, whatever direction is issued by the
Leader of such Legislature Party must be regarded as a direction issued by F
the political party. There is no merit in this contention. When the provision
in the Constitution has taken care to make a distinction between the Legislature
Party and the original Political party and prescribe that the direction should
be one issued by the political party or by any person or authority authorised
in this behalf, there is no meaning in saying that whatever the Leader of the
Legislature Party directs must be regarded as that of the original political G
party.

22. The reason is not far to seek. Disqualification of a member elected
by the people is a very serious action and before that extreme step is taken,
it should be proved that he acted contrary to the direction issued by the party
which set him up as a candidate for election. H
242 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A 23. Jn 'Hollohan', (1992] Supp 2 sec 651, the majority dealt with the
expression 'any direction' in Para 2(1) (b) and held that the objects and
purposes of the Xth Schedule define and limit the contours of the meaning
of the said expression. It is advantageous to extract para 122 of the judgment
which reads as follows:- -
B "While construing Paragraph 2(1) (b) it cannot be ignored that
under the Constitution Members of Parliament as well as of the State
legislature enjoy freedom of speech in the House though this freedom
is subject to the provisions of the Constitution and the rules and
standing orders regulating the Procedure of the House [Article 105 ( 1)
C and Article 194 (l)]. The disqualification imposed by paragraph 2(l)(b)
must be so construed as not to unduly impinge on the said freedom
of speech ofa Member. This would be possible if Paragraph 2(l)(b)
is confined in its scope by keeping in view the object underlying the .
amendments contained in the Tenth Schedule, namely, to curb the evil
or mischief of political defections motivated by the lure of office or
D other similar considerations. The said object would be achieved if the
disqualification incurred on the ground of voting or abstaining from
voting by a member is confined to cases where a change of government
is likely to be brought about or is prevented, as the case may be, as
a result of such voting or abstinence or when such voting or abstinence >
E is on a matter which was a major policy and programme on which the
political party to which the Member belongs went to the polls. For
this purpose the direction give!l by the political party to a Member
belonging to it, the violation of which may entail disqualification
under Paragraph 2(l)(b), would have to be limited to a vote on motion
of confidence or no confidence in the government or where the
F motion under consideration relates to a matter which was an integral
policy and programme of the political party on the basis of which it
approached the electorate. The voting or abstinence from voting by
a Member against the direction by the political party on such a motion
would amount to disapproval of the programme on the basis of which
G he went before the electorate and got himself elected and such voting
or abstinence would amount to a breach of the trust reposed in him
by the electorate".
24. If the direction referred to in para 2 (1 )(b) is to be restricted to the
two kinds referred to in the said passage, there is no doubt that 'political
H party' in para 2(1)(b) refers only to the 'original political party' as it is only
MAYAWAT!v.MARKANDEYACHAND[SRINIVASAN,J.] 243

such party which could issue such directions. In such matters, the members A
of the House would certainly be given sufficient notice in advance and
original political party would have sufficient time to take decisions and issue
... directions.

25. In 'Tue Journal of Parliamentary Information'. 1993 (Vol.39). Article
19. Anti - Defection Law - Split In parties by D. Sripada Rao @p.p. 104 and B
105, it is stated as follows:-

"It is not as though the Schedule does not take into its fold the
outside events and organisation. Tue Schedule mentions the direction
of the political parties. etc. in Clause (b) of sub-para (l) or para 2. Tue
direction of a member of the House can be from a functionary of a C
political party outside the House according to the constitution of the
respective parties. The label which a member carries and ultimately
goes to constitute his Legislature Party under rule 4(2) is an agency
outside the House. A member is disqualified for giving up that label
and not the membership of the Legislature Party. Tue operation of the D
Schedule is not exclusively intramural or confined to the four walls of
the House, where the Speaker's writ runs. If the intention of the
Parliament in enacting the Schedule is to confine the Speaker merely
I
to count the members of the Legislature Party there is no need to
mention 'the original political party' in paras 3 and 4 in connection
with split or merger. There is an inbuilt mechanism in the Schedule to E
maintain nexus between the political party and the Legislature Party
which is essential for the effective functioning of Parliamentary form
of Government. Tue Schedule casts a duty on the Speaker not to lose
sight of the nexus while formalising the split or merger. A party split
outside the House without the support of I/3rd members inside the p
House renders it to wipe out its identity in the House and the House
and the Members who engineer a split in Legislature Party without
there being a corresponding split in the party outside make themselves
vulnerable to forego their seat in the House al~eit their command over
I/3rd legislature party".
G
The above passage shows that no distinction can be made between sub para
(a) and sub para (b) vis a vis the meaning of the term 'political party' and
that it means only the original political party.

26. It has been rightly held by the Speaker that there is no material
whatever to hold that the direction issued on 20.10.97 was issued by the H
244 SUPREME COURT REPORTS (1998) SUPP. 2 S.C.R.

A B.S.P. or that the appellant was authorized by the BSP to issue such a
direction. Neither before the Speaker nor before us any such plea was even
raised.

27. There is also no difficulty in accepting the finding of the Speaker
that the direction dated 20.10.97 was not in accordance with the law laid down
B by this court in 'Hollohan' - In para 123, it is said:

"Keeping in view the consequences of the disqualification i.e., ..
termination of the membership of a House; it would be appropriate
that the direction or whip which results in such disqualification under
Paragraph 2(1 )(b) is so worded as to clearly indicate that voting or
c abstaining from voting contrary to the said direction would result in
incurring the disqualification under Paragraph 2(l)(b) of the Tenth
Schedule so that the member concerned has fore-knowledge of the
consequences flowing from his conduct in voting or abstaining from
voting contrary to such a direction".
D Mr. Sibal's contention that such a warning as mentioned in the above passage
is necessary only when whips are issued on unimportant matters and that the
above passage in 'Hollohan' is misunderstood by the Speaker is unsustainable.
A reading of paras 122 and 123 in 'Hollohan' clearly shows that no meaning
can be given to para 123 other than that given by the Speaker.
E
28. Hence I hold that the Speaker has not violated para 2( 1)(b) of the
Tenth Schedule.

(b) Violation of Para 2(1)(a)

F 29. The attack of the appellant on the factual findings of the Speaker
could be more conveniently and appropriately considered when I discuss
violation of principles of Natural Justice and perversity. Under this head, I
would discuss the question of law raised by Mr. Sibal.

30. The meaning to be given to the word 'split' in Para 3 is left open
G in 'Hollohan'. In Para 124, it is said:
"There are some submissions as to the exact import of a "split"
- whether it is to be understood an instantaneous, one time event or
whether a 'split' can be said to occur over a period of time. The
hypothetical poser was that if one-third of the members of a political
H party in the legislature broke away from it on a particular day and a
MAYAWATI v. MARKANDEYA CHAND [SRINIVASAN, J.] 245
few more members joined the splinter group a couple of days later, A

-
would the latter also be a part of the 'split' group. This question of
construction cannot be in vacuo. In the present cases, we have dealt
with constitutional issues. The meaning to be given to "split" must
necessarily be examined in a case in which the question arises in the
context of its particular facts. No hypothetical predications can or B
need be made. We, accordingly, leave this question to be decided in
an appropriate case".

31. Issue No. 6 framed by the Speaker is as follows:-

"Whether on 21.10.97 a group was formed in Bahujan Samaj Party
Legislature Party under paragraph 3 of Tenth Schedule of the C
Constitution representing the group which had arisen as a result of
split in Bahujan Samaj Party and whether there were at least one-third
members of Bahujan Samaj Party Legislature Party in such group? If
yes, its effect."

There is no dispute before us as to the correctness of the issue as framed. D
There is also no difference of opinion among the two sides as to the meaning
of para 3.

32. The only question of law raised by Mr. Sibal relates to the
maintainability of the plea of split in default of compliance with Rule 3 of the
Rules. According to the learned counsel, the Rules, having been framed in E
exercise of the powers conferred by para 8 of the Tenth Schedule for giving
effect to the provisions of the Schedule, have the same force as constitutional
mandates and non-compliance thereof would disentitle the concerned party
from invoking the provisions of the Constitution. Rule 3(1) of the Rules reads
thus:
F
"3. (i) The leader of each legislature party, other than a legislature
party consisting of only one member shall within thirty days from the
date of the first sitting of the House, or, where such legislature party
is formed after such date, within thirty days from the date of its
formation, and in either case within such further period as the Speaker G
may for sufficient cause allow, furnish the following to the Speaker,
namely:-
(a) a statement in writing in Form I containing the names of
members and other particulars of such legislature party:

(b) names and designations of each such member of the legislature H
246 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A party who has been chosen as leader of that party or authorized for
the purposes referred to in clause (f) of rule 2, to act as, or to
discharge the functions of, such leader; ...
(c) names and designations of such members of the legislature
party who have been authorised for the purposes of these rules to
B correspond with the Speaker;

( d) a copy of the Constitution and rules (by whatever name called)
of such legislature party and of the political party to which its members
are affiliated".
33. Learned counsel submits that in the present case though the split
C was alleged to have taken place on 21.10.97, Markandeya Chand, the leader
of JBSP did not within thirty days from the said date or for that matter till
25.2.98, the day on which the arguments before the Speaker were concluded
furnish the statement etc. as set out in the Rule. Hence according to him the
respondents were not entitled to raise the plea of split in this case.
D 34. According to him the decision of this Court in Ravi S. Naikv. Union
of India and Anr. etc., [ 1994] Supp. 2 S.C.C. 641 is not correct and it requires
reconsideration. It is, therefore, argued that the order of the Speaker placing
reliance on the said ruling is erroneous and has to be set aside.

35. Before referring to Ravi S. Naik, (supra) I would consider the
E question on first principles. Para 3 of the Tenth Schedule excludes the operation
of para 2 (I )(a) and (b) where a memberofa House makes a claim that he and
any other member of his legislature party constitute the group representing
a faction which has arisen as a result of a split in his original political party
and such group consists of not less than one third of the members of such
p legislature party. The following are the conditions for satisfying the I·

requirements of the para:

(i) A split in the original political party giving rise to a faction.

(ii) The faction is represented by a group of MLAs in the House.
G
(iii) Such group consists not less than one third of the members of
legislature party to which they belong. For the purpose of that para all the
three conditions must be fulfilled. It is not sufficient if more than I/3rd
members of a legislature party form a separate group and give to itself a
different name without there being a split in the original political party. Thus ·
H the factum of split in the original party and the number of members in the
MAYAWAT!v. MARKANDEYACHAND[SRINIVASAN,J.] 247
'group' exceeding I/3rd of the members of the legislature party are the A
conditions to be proved.

36. Rule 3 provides for furnishing of information to the Speaker. Rule
6 provides for recording of such information in a register to be maintained by
the Secretary. Will the recording of information in the register conclude the
issue relating to the two requirements of para 3 of the Tenth Schedule? There B
is not even a provision for presumption as to the correctness of the entries
in the register maintained under Rule 6. The entries would at best only show
that such and such information was furnished by such and such member. The
entries in the register cannot have any other effect whatever.

37. Rule I 0 enables the Speaker to issue from time to time such directions C
as he may consider necessary in regard to the detailed working of the rules.
Will such directions also be considered as constitutional mandates?

38. Rules 7,8 and 9 set out the procedure for seeking disqualification of
a member. In this case the petitions for disqualifications were filed even on D
24.10.97 long before the expiry of the period of 30 days specified in Rule 3.
The question of disqualification had to be decided in those petitions. The
power to decide disputed disqualification under Para 6(1) of the Tenth schedule
is 'pre-eminently of a judicial complexion'. The Speaker or the Chairman acting
under Para 6(1) is a Tribunal (See 'Hollohan' [1992] Supp. 2 S.C.C. 651. Can
the entries in the register maintained under Rule 6 by the Secretary have the E
effect of establishing the two conditions required for para 3 of the Tenth
Schedule? It can if at all be only a piece of evidence in support of the claim
of one party. If as contended by the appellant's counsel, failure to comply
with the rule will prevent the raising of a plea of split, the compliance of the
rule must have the effect of conclusively proving the conditions required for
para 3. That will lead to an anomalous situation. When a disqualification F
proceeding is initiated against the members who claim the benefit of para 3,
they can defeat the proceeding by furnishing some information to the Speaker
under Rule 3 and getting it recorded in the Register under rule 6. Thus a
matter which has to be decided judicially under Para 6(1) of the Tenth schedule
may get decided administratively by compliance of Rules 3 and 6. Undoubtedly G
such a status cannot be given to the rules which are only procedural. If the
contention of Mr. Sibal is accepted, form will stand exalted over substance.

39. Now I shall advert to 'Ravi S. Naik' 1994 Supp. (2) S.C.C. 641. Both
the learned Judges who decided the case were party to the majority Judgment
in "Hollohan'. It is too much to say that they had not properly understood H
248 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A their own dictum in 'Hollohan'. After referring to the provisions of the Tenth
Schedule and the decision in 'Hollohan' the Bench dealt with the facts of
each appeal separately. The Bench observed in C.A. 3390 of 1993 as follows:

" ... The Disqualification Rules have been framed to regulate the
procedure that is to be followed by the Speaker for exercising the
B power conferred on him under sub-paragraph ( 1) of Paragraph 6 of the
Ofenth 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

c this Court in Kihoto Hollohan case. Moreover, the field of judicial
review in respect of the orders passed by the Speaker under sub-
paragraph(!) of paragraph 6 as construed by this court in Kihoto
Hollohan case is confined to breaches of the constitutional mandates,
malafides, non compliance with rules ofNatural Justice and perversity.
We are unable to uphold the contention of Shri Sen that the violation
D of the Disqualification Rules amounts to violation of constitutional
mandates. By doing so we would be elevating the rules to the status
of the provisions of the constitution which is impermissible. Since the
Disqualification Rules have been framed by the Speaker in exercise of
the power conferred under paragraph 8 of the Tenth Schedule, they
have a status subordinate to the Constitution and cannot be equated
.E with the provisions of the Constitution. They cannot, therefore, be
regarded as constitutional mandates and any violation of the
Disqualification Rules does not afford a ground for judicial review of
the order of the Speaker in view of the finality clause contained in
sub-paragraph (I) of paragraph 6 of the Tenth Schedule as construed
F by this Court in Kihoto Hollohan case.

40. Again in Civil Appeal 2904of1993, the Bench dealt with paras 2 and
3 of the 10th Schedule and said:

"As noticed earlier paragraph 2 of the Tenth Schedule provides for
disqualification on the ground of defection if the conditions laid down
G
therein are fulfilled and paragraph 3 of the said schedule avoids such
disqualification in case of split. Paragraph 3 proceeds on the assumption
that but for the applicability of the said provision the disqualification
under Paragraph 2 would be attracted. The burden to prove the
requirements of paragraph 2 is on the person who claims that a
H member has incurred the disqualification and the burden to prove the
MA YAWAT!v. MARKANDEYACHAND[SRINIVASAN,J.] 249
requirements of paragraph 3 is on the member who claims that there A
has been a split in his original political party and by virtue of said split
the disqualification under paragraph 2 is not attracted. In the present
case Naik has not disputed that he has given up his membership of
his original political party but he has claimed that there has been a
split in the said party. The burden, therefore, Jay on Naik to prove that B
the alleged split satisfies the requirements of paragraph 3. The said
requirements are:

(i) The member of a House should make a claim that he and other
members of his legislature party constitute the group representing a
faction which has arisen as a result of a split in his original party; and C
(ii) Such group must consist of not less than one-third of the
members of such legislature party.

In the present case the first requirement was satisfied because
Naik has made such a claim. The only question is whether the second D
requirement was fulfilled. The total number of members in the legislature
party of the MGP (the original political party) was eighteen. In order
to fulfil the requirements of paragraph 3, Naik's group should consist
of not Jess than 6 members of the legislature party of the MGP. Naik
has claimed that at the time of split on December 24, 1990 his group
consisted of eight members whose signatures are contained in the E
declaration, a copy of which was filed with the reply dated February
13, 1991.

The Speaker has held that the split had not been proved because
no intimation about the split has been given to him in accordance with
Rules 3 and 4 of the Disqualification Rules. We find it difficult to F
endorse this view. Rule 3 requires the information in respect of matters
specified in clauses (a) (b) and (c) of sub-rule (1) to be furnished in
the prescribed form (Form 1) to the Speaker by the leader of the
legislature party within 30 days after the first sitting of the House or
where such legislature is formed after the first sitting, within 30 days G
after its formation. Rule 4 relates to information to be furnished by
every member to the Secretary of the Assembly in the prescribed form
(Form III). In respect of a member who has taken his seat in the House
before the date of commencement of the Disqualification Rules, the
information is required to be furnished within 30 days from such date.
Jn respect of a member who takes his seat in the House after the H
250 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A commencement of the Disqualification Rules, such information has to
be furnished before making and subscribing an oath or affirmation
under Article 188 of the Constitution and taking his seat in the House.
Rule 4 has no application in the present. case because the stage for
furnishing the required information had passed long back when the
members made and subscribed to oath and affirmation after their
B election in 1989. Rule 3 also comes into play after the split and the
failure on the part of the leader of the group that has been constituted
as a result of the split does not mean that there has been no split. As
to whether there was a split or not has to be determined by the
Speaker on the basis of the material placed before him. In the
c present case the split was sought to be proved by the declaration
dated December 24, 1990 whereby eight MLAs belonging to the MGP
declared that they had constituted themselves into a group known as
Maharashtrawadi Gomantak Party (Ravi Naik Group). A xerox copy of
the said declaration was submitted along with the reply filed by Naik
on February 13, 1991 and the original declaration bearing the signatures
D of the eight MLAs was produced by the advocate for Naik during the
course of the hearing before the Speaker on February 13, 1991. The
genuineness of the signatures on the said declaration was not disputed
before the Speaker. One of the signatories of the declaration, namely,
Dharma Chodankar, had written to the Speaker that his signatures
E were obtained forcibly. That may have a bearing on the number of
members constituting the group. But the fact that a group was
constituted is established by the said declaration." [Emphasis supplied]

With respect, I express my whole-hearted agreement with the reasoning. The
ruling does not at all require re-consideration. The contention of the appellant
F is therefore rejected. I hold that the Speaker has not violated any of the
constitutional mandates.

(JI) Violation of principles of Natural Justice

41. Under this head, the argument of the appellant relates to two affidavits
G filed on 25.2.98, six on 4.3.98 and one on 10.3.98. The two affidavits filed on
25.2.98 were that of Narinder Singh and Markandeya Chand. They were
presented when the arguments were proceeding. The same was objected to
by the counsel who was appearing for the appellant before the Speaker on
the ground that they had been filed after 9.2.98 which was the last day to
produce evidence. In the copy of the proceedings dated 25.2.98, the following
H statement is found :
MAYAWATlv. MARKANDEYACHAND[SRINIVASAN,J.] 251
"Whether the above affidavits be placed on record and be read in A
evidence or not will be considered presently during arguments".

According to the appellant, the Speaker did not pass any order thereafter
to take the affidavits on record but he relied on them in his order and thus
violated the principles of Natural Justice as the appellant had no opportunity
to controvert the averments in the affidavits. B
42. In his order, the Speaker has stated as follows:

"When we resumed the hearing at 6.00 P.M. on 25.2.98 the
respondents' counsel Shri A. Kumar made a request that the presence
of6 MLAs who were in the division of the BSP on 21.10.97 be noted C
and the affidavits ofChaudhary Narendra Singh and Shri Markandeya
Chand be read in evidence. These six MLAs were Sarvasri Munna Lal
Maurya, Rajendra Singh Patel, Jai Narain Tewari, Ved Prakash, Shiv
Ganesh Lodhi and Qasim Hasan. The names of all these MLAs are
mentioned in Annexure I to the aforesaid affidavits. D
Similarly, the petitioners also produced Sarvasri Haji Akbar Husain,
Ram Ratan Yadav, Vibhuti Prasad Nishad, Shiv Charan Prajapati, Ram
Kripal Singh, Chhotey Lal Rajbhar and Matesh Chandra Sonkar MLAs
and requested that their presence on the petitioners' side be also
noted. The names of these persons also find place in Annexure I to E
the said affidavits.

The presence of all the above mentioned MLAs presented by
both sides was accordingly noted.

So far as the affidavits of Chaudhary Narendra Singh and F
Markandeya Chand are concerned, the petitioners counsel strongly
objected to the same on the ground that the respondents were given
last opportunity to file affidavit by 9.2.1998 which date has expired
and hence the affidavits should not be taken or record.

On being asked whether the petitioners would like to file reply to G
the said affidavit in case the same is placed on record, the petitioners'
Senior Counsel Shri Umesh Chandra stated that he would not file any
reply but would object to taking the same on record. During the
course of arguments Shri Umesh Chandra referred to some paragraphs
of this affidavit also to contend that there was no division of the BSP.
(Underlining mine) H
252 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A I find that for determining the controversy completely and finally
it is in the interest of justice to place the affidavits on record and
particularly when the petitioners do not want to file any reply to the
same.

Again in another place, it is stated as follows:
B
The various applications, pleadings and affidavits filed after the
petition was amended on 5.12.97, have already been stated earlier in
this order and they need not be repeated here. Reference to the
relevant applications, pleadings and affidavits shall made where
considered necessary. Suffice it to say that in order to finally and
C completely adjudicate upon the controversy, and in the interest of
justice, and particularly keeping in view the serious consequences
flowing from disqualification of a member of the Assembly, I have
taken on record all the applications and affidavits filed even after
9.2.1998. Parties have been afforded sufficient opportunity to meet the
case of each other.
D
43. In the S.L.P. a ground is raised that the averment in the order that
the appellant's counsel said that he would not file any reply to the affidavits
is factually incorrect. But there is no denial whatever in the SLP of the
averment that during the course of arguments Shri Umesh Chandra referred
E to some paragraphs of that affidavit also to contend that there was no
division of the BSP. No argument was also advanced before us challenging
the correctness of that averment. When the appellant's counsel had himself
relied on portions of the affidavits filed on 25.2.98, there is no substance in
the contention that the Speaker had ta~~n them on record behind the back
of the appellant. There is also no substance in the contention that the
F appellant had no opportunity to controvert the contents of those affidavits.
On the very same day (25.2.98), the appellant filed an application and affidavits
of nine MLAs at 7.40 P.M. She could have then said whatever she wanted
to say about the contents of the affidavits filed by the respondents. It is not
the case of the appellant that Speaker did not permit her to file any affidavit
G in reply to the said affidavits of the respondents. The only objection to the
reception of the affidavits in question was that it was filed after the expiry
of the time granted earlier to file a list of members of BSP. The appellant was
represented by practising lawyers who knew very well that the Speaker had
ample powers to condone the delay in filing the affidavits. In the Proceedings
of 25.2.98 it is stated towards the end that "learned counsel for the two sides
H had made their submissions on factual and legal aspects". It is not the case
MAY AW AT! v. MARKANDEY A CHAND [SRINIVASAN, J.) 253
of the appelwnt that any argument with reference to the said affidavits was A
shut out. Moreover the contents of the affidavits filed on 25.2.98 are almost
a repetition of the contents of the Additional Written Statement filed on 2.2.98
plus the two annexures containing the names of26 members, who formed the
group of JBSP on 21.10.97 and 18 members, who continued in the group till
then besides a plea of split within split. I do not find any violation of the B
principles of Natural Justice in the Speaker's taking on record the two affidavits
filed by the respondent on 25.2.98.

44. The other affidavits said to have been taken on record without
notice to the appellant were filed on 4.3.98 and 10.3.98. According to the
respondents, those affidavits were filed in reply to the nine affidavits filed by C
the appellant on 25.2.98 at 7.40 P.M. According to them the appellant filed
them without serving copies on them and they had to obtain copies from the
office of the Speaker on 27.2.98. It is stated by the appellant that the affidavits
filed on her behalf were presented before the Speaker in the course of arguments
in the presence of counsel for the parties. The proceedings of the Speaker
dated 25 .2.98 do not make any reference to the said affidavits. The endorsement D
on the margin of the application of the appellant dated 25.2.98 and the
affidavits filed therewith prove that they were filed in the office of the
Secretary to the Speaker at 7.40 P.M. and on the same day, the Speaker has
made an endorsement in the margin directing the placing of the application
and affidavits on record. Whatever ·it may be, it is not the case of the E
appellant that copies of those affidavits were served on the respondents or
their counsel. There is no record to prove such service.

45. The Speaker has dealt with this matter in his order as follows:-

"The petitioners themselves had filed 9 affidavits at 7 .40 P.M. on F
25.2.1998 while hearing on the petitions was going on. Copies of these
affidavits were not served on respondents on 25.2.1998. Their counsel
obtained it on 27.2.1998 i.e. after the orders were reserved on the case
on 25.2.1998. The respondents filed 6 affidavits dated 25.2.1998 and
27 .2.1998 by means of an application dated 4.3 .I 998 which specifically
stated that these affidavits were being filed in reply to the said 9 G
affidavits. The affidavit ofShri Ram Ratan Yadav filed on 10.3.1998 is
almost entirely the same as the affidavits filed by the petitioners on
252.1998.

One more fact needs to be stated at this stage. Shri R.K. Chaudhary,
petitioner, sent an application/letter dated 16.3.1998 asking for copies H
254 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A of the affidavits filed on behalf of the respondents after the order was
reserved on 25.2.1998. The copies of these affidavits were sent to Shri
R.K. Chaudhary along with a letter dated 17.3 .1998 in which he was
infonned that copies of the affidavits filed by the petitioner on 25.2.1998
were received by the respondents' counsel on 27.2.1998 and the
affidavits filed alongwith the application dated 4.3.1998 were filed in
B reply thereof. Along with the said letter, a copy of the affidavit filed
by Shri Ram Ratan Yadav dated 10.3.98 was also sent to Shri R.K.
Chaudhary. It was specifically mentioned in the letter of 17.3.98 that
in case he wanted to submit anything he may appear before me on
19.3.98 at 1.00 P.M. lnfonnation of this date was sent to the respondents
c also. On 19.3.98 the respondents Chaudhary Narendra Singh and
Markandeya Chand appeared along with their counsel Shri A. Kumar
and Sri N.K. Pandey. On behalf of the petitioners Shri Daya Ram Pal,
President of the U.P. BSP handed over a letter of Shri R.K. Chaudhary
that the purpose of the letter dated 17.3.98 was not clear and as such
the same be made clear. In reply to this letter of Shri R.K. Chaudhary,
D
a letter was sent to him on 19.3.98 infonning him that ifhe wanted to
file any reply to the said affidavit or submit anything in his favour or
to file anything, he may do the same on that date i.e. 19.3.98. Nobody
appeared thereafter on behalf of the petitioner Shri R.K. Chaudhary
nor filed any document. The aforesaid letters have been placed on the
E records. In my view, in the particular circumstances of the case no
prejudice has been caused to any of the parties by admitting the
aforesaid affidavits on record".

46. Again the Speaker has stated thus in his order:-

F "Since the facts stated about the split and threat etc. in the
affidavits of Sri Vans Narain Singh and others filed on 2.2.1998 and
the affidavits dated 25.2.1998 of Shri Markandeya Chand and
Chaudhary Narendra Singh, (including the allegations of split within
split) and the facts stated in the six affidavits filed through the
application dated 4.3 .1998 have not been controverted despite
G
opportunity having been given to the petitioner Shri R.K. Chaudhary
(who was also looking after the petitions of Ms. Mayawati), I prefer
to place reliance on them and hold that there was a split in the
Bahujan Samaj Party on 21.l 0.1997 and a faction had risen as a result
of this split in the BSP and a group of BSP MLAs consisting of 26
H BSP MLAs (whose names are mentioned in Annexure I to the affidavits
MAYAWATiv. MARKANDEYACHAND[SRINIVASAN,J.] 255
of Chaudhary Narendra Singh and Shri Markandeya Chand, filed on A
25.2.1998) was constituted on 21.10.97 itselfrepresenting the faction,
which thus arose and that this group known as Jantantrik BSP".

47. An objection is taken before us in the course of arguments that R.K.
Chaudhary never represented the appellant in the proceedings before the
Speaker and notice to him will not amount to notice to the appellant. No such B
ground has been taken in the S.L.P. There is no denial in the S.L.P. of the
averment found in the order of the Speaker that R.K. Chaudhary was looking
after the petitions of the appellant. Without challenging the correctness of the
statement in the S.L.P., it is not open to counsel for the appellant to raise the
contention for the first time in the course of his arguments. In the order of C
the Speaker dated 7.11.97 it is stated that R.K. Chaudhary, MLA and D.R.
Verma, Ex Chairman Legislative Assembly came and produced two letters of
the appellant before the Speaker which shows that R.K. Chaudhary did
represent the appellant in these proceed in gs. In fact he filed petitions for
disqualification only on 11.11.97 and those petitions were nothing but repetition
of the petitions filed by the appellant. In the circumstances it is not possible D
for this Court to say that the averment made by the Speaker in his order that
R.K. Chaudhary was looking after the petitions filed by the appellant is not
correct.

48. While I am unable to accept the factual contention that the appellant E
had no opportunity to controvert the affidavits filed before the Speaker on
25.2.98, 4.3.98 and 10.3.98, I am of the opinion that even so there is no
violation of the principles of riatural justice. This court has in The Chairman,
Board of Mining Examination and Chief Inspector of Mines and Anr. v.
Ramjee, [ 1977] 2 S.C.C. 256, discussed the principles of natural justice and
~: F
"Natural justice is no unruly horse, no lurking land mine, nor a judicial
cure-all. If fairness is shown by the decision maker to the man
proceeded against, the form, features and the fundamentals of such
essential processual propriety being conditioned by the facts and G
circumstances of each situation, no breach of natural justice can be
complained of. Unnatural expansion of natural justice, without reference
to the administrative realities and other factors of a given case, can
be exasperating. We can neither be finical nor fanatical but should be
flexible yet firm in this jurisdiction. No man shall be hit below the belt
- that is the conscience of the matter................................ H
256 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A

"But then we cannot look at law in the abstract or natural justice as
a mere artifact. Nor can we fit into a rigid mould the concept of
B reasonable opportunity" ..... '............................................................................... .

"These general observations must be tested on the concrete facts of
each case and every miniscule violation does not spell illegality. If the
C totality of circumstances satisfies the court that the party visited with
adverse order has not suffered from denial of reasonable opportunity
the Court will decline to be punctilious or fanatical as if the rules of
natural justice were sacred scriptures".

49. It has not been proved by the appellant that there is a failure of
D substantial justice. In the absence of bias and ma/a-fides, the contention that
the order of the Speaker is vitiated by violation of principles of natural justice
has to fail.

(III) PERVERSITY

E 50. One of the contentions urged under this head is that Speaker has
by unduly delaying the proceedings acted perversely. Though learned senior
counsel stated expressly in the course of his arguments that he is not alleging
bias or personal ma/a fides against the Speaker, in the written submissions
given by him, it is stated as follows:
F "The Hon 'ble Speaker by not deciding the petitions expeditiously
and by allowing the BJP time to gamer support for the purposes of
the defence of the respondents under paragraph 3 has acted contrary
to the constitutional mandate".

G The said submission is not permissible in view of the statement expressly
made and referred to above. In any event, merely because there is a delay in
concluding the hearing, the order cannot be said to be perverse. The Speaker
has framed the question properly as to whether a split, as alleged by the
respondents, had taken place on 21.10.97 and whether it was supported by
acceptable evidence. This Court in exercise of its power of limited judicial
H review has only to see whether the findings arrived at by the Speaker are
\...._ , /

MA YAWATI v. MARKANDEY A CHAND [SRINIVASAN, J.] 257
perverse in the sense in which the expression "perversity" has been understood A
by this court in several decisions. I am unable LO accept that as a matter of
law, delay in the completion of proceedings would by itself vitiate the order
passed by him.

51. But I wish to add that it is absolutely necessary for every Speaker
to fix a time schedule in the relevant rules for disposal of the proceedings for B
disqualification of MLAs or MPs. In my opinion all such proceedings shall
be concluded and orders should be passed within a period of three weeks
from the date on which the petitions are taken on file.

52. Before considering the relevant findings of the Speaker which are C
said to be perverse by the appellant, it is better to refer to the rulings which
define perversity.

53. As pointed out already in Kihoto Hallahan v. Zachillhu and others,
[1992] Supp. 2 S.C.C. 651 the Constitution Bench has laid down that the power
of judicial review vis-a-vis the order of the Speaker under paragraph 6(1) of D
the Tenth schedule is confined to jurisdictional errors only based on violation
of constitutional mandate, ma/a fides, non compliance of rules of natural
justice and perversity.

54. In Associated Provincial Picture Houses, Ltd. v. Wednesbury
Corporation, (1947) Vol 2 All England Reports 680 Lord Greene, M.R. dealt E
with a case where the proprietors of a Cinema theatre sought a declaration
that a condition imposed by the Wednesbury Corporation on grant of
permission for Sunday performances to be held in that cinema was ultra vires.
The Court dismissed the action. The relevant passage in the judgment reads
as follows:
F
"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
discretions often use the word "unreasonable" in a rather G
comprehensive sense. It is frequently used as a general description
of the things that must not be done. For instance, a person entrusted
with a discretion must direct himself properly in law. He must call his
own attention to the matters which he is bound to consider. He must
exclude from his consideration matters which are irrelevant to the
matter that he has to consider. If he does not obey those rules, he may H
258 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.

A truly be said, and often is said, to be acting "Unreasonably". Similarly,
you may have something so absurd that no sensible person could
ever dream that it lay within the powers of the authority .... "

After referring to a judgment of Theatre de Luxe (Halifax) Ltd. v. Gledhill.
5 (1915) 2 K.B. 49 the learned Judge observed:
B
"I do not find in any of the language that he used any justification
for thinking that it is for the court to decide the question of any
justification for thinking that it is for the court to decide the question
of reasonableness rather than the local authority. I do not read him
as in any way dissenting from the view which I have ventured to
c express, that the task of the court is not to decide what it thinks is
reasonable, but to decide whether the condition imposed by the local
authority is one which no reasonable authority, acting within the four
corners of their jurisdiction, could have decided to impose".

55. In "Judicial Review of Administrative Action" 5th ed. at P.549 it is
D stated as follows:
"Unreasonableness" is sometimes used to denote particularly
extreme behaviour, such as acting in bad faith, or a decision which is
"perverse" or "absurd" - implying that the decision-maker has taken
leave of his senses".
E
56. In CCSU v. Minister for Civil Service, (1984) 3 All E.R. 935 Lord
Diplock observed :-

"By 'irrationality' I mean what can by now be succinctly referred
to as 'Wednesbury unreasonableness' (see Associated Provincial
F Picture Houses Ltd. v. Wednesbury Corporation, (1947) Vol. 2 All E.R.
680, (1948) 1 K.B. 223). It applies to a decision which is so outrageous
in its defence of logic or accepted moral standards that no sensible
person who had applied his mind to the question to be decided could
have arrived at it".
G
57. In Nottinghamshire County Council v. Secretary of the Environ-
ment and Anr., appeal ( 1986) Vol 1 All E.R. 199 Lord Scarman observed as
follows:

"Such an examination by a court would be justified only if a prima
H facie case were to be shown for holding that the Secretary of State
MA YAWATI v. MARKANDEYA CHAND [SRINIVASAN, J.] 259

had acted in bad faith or for an improper motive, or that the A
consequences of his guidance were so absurd that he must have
taken leave of his senses".

58. In Tata Cellular v. Union ofIndia, (1994] 6 S.C.C. 651, a Three Judge
Bench of this court to which one of us (M.M. Punchhi, J., as His Lordship
then was) was a party, the law was stated thus: B
" ... Shortly put, the grounds upon which an administrative action is
subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision-maker must understand
correctly the law that regulates his decision making power and must C
give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety"

59. In Union of India and another v. G. Ganavutham, (1997] 7 S.C.C. D
463 this court has interpreted reasonableness and rationality which are two
grounds for judicial review. The Court referred to the rule in Wednesbury
(supra) and observed:

"Therefore to arrive at a decision on "reasonableness" the Court
has to find out if the administrator has left out relevant factors or E
taken into account irrelevant factors. The decision of the administrator
must have been within the four corners of the law, and not one which
no sensible person could have reasonably arrived at, having regard
to the above principles, and must have been a bona fide one. The
decision could be one of many choices open to the authority but it F
was for that authority to decide upon the choice and not for the Court
to substitute its view".

60. The order of the Speaker has to be tested in the light of the above
principles only in order to decide whether it is perverse. The Speaker has
taken note of the following circumstances for accepting the case of the G
respondents:

(i) Markandeya Chand announced on the floor of the Assembly on
21.10.97 that under his leadership 23 MLAs got separated from BSP and they
formed one group. Th is was not controverted by the appellant or the other
m=~~~BS~ H
260 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A (ii) In spite of such announcement, the petition filed by the appellant
on 24.10.97 did not invoke paragraph 2(l)(a) of the Tenth Schedule for
disqualifying the respondents. There was no mention whatever about the
split announced in the Assembly. .....•
(iii) In the petitions filed by R.K. Chaudhary on 11.11. 97, the position
B was the same. There was no reference to the split announced in the Assembly.

(iv) On 13.11.97 applications were filed for amendment of the petitions
which were allowed by the Speaker but there was no reference in these
applications either to the split or to paragraph 2 (l)(a) of the Tenth Schedule.

c (v) On 25.11.97 the respondents filed the written statement in which it
was stated that a split had occurred as a result of which there was more than
one third of the BSP legislators under the leadership of Markandeya Chand.
On 26.11.97 appellant filed a reply/rejoinder. There was no denial of the split
referred to in the written statement of the respondents.
D
(vi) On 5.12.97 applications for amendment of the petitions were filed in
which there was only a denial of correctness of the statement made by
Markandeya Chand in the Assembly that 23 legislators of BSP were with him.
In Paragraphs 7A and 78 of the petitions, which were introduced by the said
amendment, there was no dispute of the factum of split pleaded by the
E respondents.

(vii) On 2.2.98 an additional written statement was filed by Vansh
Narain Singh setting out the facts relating to the split and formation of JBSP.
There was also a reference to the threat caused by the appellant to JBSP
F members and the fact that they were prevented from going to Lucknow. There
was also an allegation that signatures wt:re taken on blank papers from such
members. The averments in the additional written statement were never
controverted.

(viii) The affidavits filed by the appellant on 25.2.98 were sworn to in
G November, 1997. There was no explanation for the same. Three of the affidavits
were contradicted and controverted by the deponents thereof. The stamp
papers on which the affidavits had been prepared were issued on the same
day and the names of the persons to whom the stamp papers were issued
were not written by the stamp vendor.

H (ix) The list of persons who joined JBSP on 21.10.97 was for the first
MAYAWATiv. MARKANDEYACHAND[SRINIVASAN,J.] 261
time disclosed on 25.2.98 only but the appellant had obtained affidavits from A

- 9 of them in November 1997 itself. That shows that the appellant knew that
those 9 MLAs were at that time in the group led by Markandeya Chand.

(x) The video cassettes and other records filed in the case revealed that
the appellant had instigated violence in the Assembly on 21.10.97 and disrupted
the proceedings. That itself probablises the version that the MLAs who B
·supported the respondents were kept under threat by the appellant and
prevented from going to Lucknow for some time. The matter is one of oath
against oath and the affidavits filed by the respondents and the other evidence
produced by them were acceptable.

61. All the above circumstances referred to and relied on by the C
Speaker are quite relevant and germane for deciding the issue whether there
was a split on 21.10.97 and whether the group led by Markandeya Chand had
not less than one third members of the BSP legislature party.

62. Apart from this, the Speaker has considered the various facts relied D
on by the appellant and discussed the same. According to the appellant the
following are the facts which would disprove the case of the respondents:

(a) That a claim was made by Markandeya Chand in the Assembly
that he had 23 BSP MLAs along with him who got separated but the
respondents who are 12 in number were the only members of the BSP E
who had voted in support of the Motion of Confidence on that day.

(b) Those 12 persons became Ministers on 27.10.97.

(c) In spite of several opportunities having been given and in-spite
of expiry of the time finally granted till 9.2.98, the respondents did not
disclose the names of the members of the JBSP who were said to be F
26 in number.

(d) When the list was given on 25.2.98 there were only 17 members
in all in JBSP.

(e) The respondents have not complied with the mandatory provisions G
of Rule 3 of the Rules in-spite of extension of time granted by the
Speaker.

63. All the above circumstances relied on by the appellant have been
referred to and discussed in detail by the Speaker in his order. If any of them
had been ignored, it could be said that his order is vitiated. But that is not H
262 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A the case here. When there is no bias or mala fide, the acceptance of one

-
party's statement on facts and rejection of the other cannot be canvassed
before this Court.

64. The appellant's counsel argued that the Speaker is in error in
proceeding on the basis that the averments in the affidavits filed on 25.2.98
B on behalf of the respondents were not controverted by the appellant and the
Speaker has overlooked that in the application filed by the appellant on
25.2.98 along with nine affidavits they have been specifically controverted. It
is also argued that the Speaker is in the wrong in rejecting the affidavits of
the MLAs filed by the appellant on the ground that they were sworn in
C November 1997 on different dates. It is submitted by learned counsel that the
appellant started collecting such affidavits from all the members of the BSP
from 6.11.97 after the respondents claimed that they had 24 members in their
group and that she could get them only when the concerned MLAs were
available"in Lucknow.

D 65. The above arguments are fallacious. The first of them negatives the
other plea of the appellant that no opportunity was given to her to controvert
the averments in the affidavits of the respondents filed on 25.2.98. It is already
seen that the relevant averments were all made in the additional written "
statement filed on 2.2.98 and the appellant did not file any reply thereto. The
E averments setting out the reason for the split in the party on 21.10.97 and the
averments describing the way in which the appellant kept the MLAs under
threat and forced them to sign blank papers were never controverted. That
is a crucial circumstance relied on by the Speaker and he cannot be faulted
therefore. The Speaker has drawn an inference that the appellant knew that
the 9 MLAs whose affidavits were filed by her on 25.2.98 were members of
F the group of the respondents when it was formed on 21.10.97 and that is why
she got affidavits from them in November 1997 by force. In the S.L.P. the said
inference of the Speaker has not been traversed. There is no averment in the
S.L.P .. or any other record that the appellant got affidavits from November' 97
onwards of all the MLAs who continued to be in the BSP. In the absence of
any such record, an argument advanced by counsel at the fag end of the
G arguments cannot be accepted.

66. The reasoning of the Speaker is in the following passages:-

"The affidavits of the respondents thus remain uncontroverted and
there is nothing on the record to disbelieve them. On the other hand,
H the statements made on oath in the respondents' affidavits are
MAYAWATI v. MARKANDEYACHAND[SRINIVASAN,J.] 263
corroborated by the following materials on the record:- A
(i) Statement of Shri Sardar Singh made on the floor of the
House on 21.10.97 while speaking on the motion of confidence.
The petitioners have not filed any evidence to controvert the
statement of Shri Sardar Singh, which was made on the fust
available opportunity. B
(ii) Admission in Paragraph 3 of the 9 affidavits filed on behalf
of the respondents that there was anarchy in the House on
21.10.97. These affidavits have been sworn in the month of
November, 1997 and are totally silent on the points of Ms.
Mayawati's direction given on 21.10.97. C
(iii) Video cassettes recording the proceedings dated 21. l 0.97 of
the House unmistakably, and with prominence, show Ms.
Mayawati instigating, exhorting and directing the BSP MLAs
sitting behind her and on her side, to come to the well of the
House and create disturbance. It may be noticed the Speaker D
was being attacked by BSP MLAs and other opposition MLAs
by suing(sic) wooden loud speaker box, microphones etc. The
video cassettes of Enadu, Bl, Zee, ANITV channels may be
referred to in this behalf. These cassettes are on the record. Still
photographs taken from some of the video cassettes have also E
been placed on the record.

(iv) The fact that violence was committed, and disturbance
created, in the House at the instance of Ms. Mayawati and some
other opposition MLAs immediately after the recital of 'V ande
Matram' was over and the Speaker was attacked. This is precisely F
what Ms. Mayawati had directed her MLAs to do on 21.10.97."

G
"The video cassettes clearly show that Ms. Mayawati instigated and
abetted the commission of violence in the House on 21.10.1997 in
which microphones, table tops and sound boxes were pulled up from
_._the legislators' and reporters' table and used for assaulting the Speaker
and others. Their acts are criminal in nature. Abetrnent of these acts H
264 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A is also a crime. There is prima facie evidence in the present petitions
to show that Ms. Mayawati is guilty of this offence".

B
"Now it is to be seen as to whether as matter of fact a faction had
arisen as a result of split in the BSP and the respondents have made
a claim that they and other members of the BSP Legislature party had
constituted a group representing that faction.
c Paragraph 1I of the affidavits of Sarvsri Vans Narain Singh and
other respondents, filed on 2.2.98, clearly states that in the background
of directions given by Ms. Mayawati to the BSP MLAs when they
had sat in the cars for coming to the Assembly, these respondents
and other MLAs of the BSP, whose number was not less than one-
D third of the total number of the BSP MLAs, sat in the lobby, discussed
the matter and at that very moment there was a split amongst the BSP
MLAs and these members of the BSP, who separated from the BSP,
formed a separate group under the leadership of Shri Markandey
Chand and that the number of such members was not less than one-
third of the BSP members. It is further averred that it was not possible
E
for them to remain members of the BSP any more and that the fact was
stated by Shri Markandey Chand in the House on 21.10.97. Paragraph
12 of the said affidavits further state that as was apparent from the
statement of Shri Markandey Chand there was a split in the BSP and
there were 23 member (MLAs) after that split with him and this became
F a separate group. The timings of the split was given before the
Speaker came to the sitting of the House on 21.10.1997.

The averments in these affidavits are corroborated by the statement
ofShri Markandey Chand given on the floor of the House on 21.10.1997
which was read in evidence by agreement of parties.
G
The petitioners did not file any reply to the said affidavits".

H
MAY AWAT! v. MARKANDEY A CHAND [SRINIVASAN, J.] 265

"There is no sufficient reason to disbelieve the avennents in these A
affidavits. They have been corroborated in material particulars by
circumstance and other materials on record. The reason given for
splitting the BSP has been found to be true as it is supported by the
actual happening of violent events in the House on 21.10.1997, which
took place at the active instigation exhortation and abetting of Ms. B
Mayawati herself. The video cassettes and the news reports of the
proceedings of the House of 21.10.97 further support this. Then the
statement of Shri Sardar Singh about the split and its cause and Shri
Markandey Chand's statement about the split both made on the first
available opportunity on the floor of the House on 2 l. l 0.97 itself are
there. Shri Markandey Chand informed the House of the fact of split C
in BSP by 23 BSP MLAs under his leadership.

Another fact which supports the case of the respondents is that,
apart from the respondents, there were many BSP MLAs who did not
participate in the disorder or violence in the House. The respondents
say that they were those who were in the group of BSP MLAs D
causing split. This fact of non-participation of several BSP MLAs in
disorder or violence is corroborated by the video cassettes".

E
"Further, the petitioners counsel had stated on 26.11.97 that he
did not propose to file any documentary evidence except those filed
with the petitions. These affidavits have been suddenly produced on
25.2.98 when Chaudhary Narendra Singh and Shri Markandey Chand
filed their affidavits disclosing the names of 26 MLAs and further
setting up the case of split within split. The contents of these affidavits F
are not supported by the events of21.10.1997. There is no reason why
their recent affidavits were not filed. In fact they do create a suspicion
in the mind that they had been obtained by the petitioners under
threat as alleged by the respondents".
G
67. There is not even an attempt to explain any of the above features
relied on by the Speaker for rejecting the nine affidavits filed by the appellant
on 25.2.98. Nor is there any argument against the reliance placed by the
Speaker on the video tapes showing how the appellant instigated the MLAs
to resort to violence and disturb the proceedings in the Assembly on 21.10.97.
The question before this Court is not whether on the facts and circumstances H
266 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A of the case there was a split as alleged by the respondents on 21.10.97 but
the question is whether the conclusion arrived at by the Speaker after taking
note of all the aforesaid circumstances, for and against the respondents is so
unreasonable or absurd or perverse that he must have taken leave of his
senses. The Speaker has not left out any relevant material from consideration;
B nor has he referred to any irrelevant matter. In the facts and circumstances
of this case it can not be said that no reasonable or sensible person who had
applied his mind to the question to be decided could have arrived at the
findings given by the Speaker. It should not be forgotten while dealing with
this question of perversity that according to the appellant's counsel there was
no bias or mala fide on the part of the Speaker. If the materials on record are
C considered on that basis it can at best be said that, if at all, two conclusions
were possible and the Speaker has chosen one of them. In the circumstances
I do not find any perversity in the findings rendered by the Speaker. It is
worth recalling the observations of Lord Fraser of Tullybelton in Re Amin
(1983) 2 All E.R. 864 at page 868, that "Judicial review is concerned not with
D the merits of a decision but with the manner in which the decision was made ...
Judicial review is entirely different from an ordinary appeal".

68. The Speaker has considered the question of split within split alleged
to have taken place in JBSP. It is unnecessary for the purpose of this case
to go into that question. Such a subsequent split in JBSP is referred to by
E the respondents only for the purpose of explaining how there were only 19
members in that group on 25.2.98. The only relevant question is whether there
was a split on 21.10.97 and the group which got separated from the BSP
consisted of not less than one third members of the BSP legislature party.
That question having been answered in favour of the respondents, it is not
F necessary to go into the question whether there was a further split in JBSP
and if so, the effect, thereof. After considering the materials on record, I am
of the opinion that the findings arrived at by the Speaker are not vitiated by
perversity.

G. SEQUEL TO JUDICIAL REVIEW
G
69. In the view I have taken it is not necessary for me to consider the
question whether this Court should decide the entire matter here in the event
of setting aside the order of the Speaker or remand the matter for fresh
disposal by the Speaker in accordance with the judgment of this Court. For
the sake of completion, I wish to express my opinion on that question too.
H If the order of the Speaker is to be set aside, I am of the view that the matter
MAY AW ATl v. MARKANDEYA CHAND [SRINIVASAN, J.] 267

should go back to the Speaker for fresh decision. It is not the function of this A
Court to substitute itself in place of the Speaker and decide the questions
which have arisen in the case. Learned counsel for the appellant placed
reliance on the judgment of this court in Bengal Chemical and Pharmaceutical
Works Ltd., Calcutta v. Their workmen, [1959] Supp. 2 S.C.R. 136. The law
as stated in that case is as follows:
B
" ..... A free and liberal exercise of the power under Art. 136 may
materially affect the fundamental basis of such decisions, namely,
quick solution of such disputes to achieve industrial peace. Though
Art. 136 is couched in widest terms, it is necessary for this Court to
exercise its discretionary jurisdiction only in cases where awards are C
made in violation of the principles of natural justice, causing substantial
and grave injustice to parties or raises an important principle of
industrial law requiring elucidation and final decision by this court or
discloses such other exceptional or special circumstances which merit
the consideration of this Court".
D
I do not know how this passage would help the appellant. This Court has
only said that interference under Article 136 is necessary (!)where awards
are made in violation of the p:inciples of natural justice causing substantial
and grave injustice to parties (2) where the case raises an important principle
of law requiring elucidation and final decision of this Court and (3) where the
case discloses such other exceptional circumstances which merit the E
consideration of this Court. The passage cannot be interpreted to mean that
after setting aside the order of the Tribunal, the factual questions could be
decided by this Court. Learned counsel referred also to Hindustan Tin Works
Pvt. Ltd. v. Employees of Hindustan Tin Works Pvt. Ltd., [1979] l S.C.R. 563.
The Court relied upon the passage in Bengal Chemical & Pharmaceutical F
Work Ltd., (supra) extracted above and modified the award. That ruling also
does not help the appellant in any manner.

70. In Vice Chancellor, Utkal University v. S.K. Ghosh, [1954] S.C.R. ~83
the Constitution Bench held that it is not the function of Courts of law to
substitute their wisdom and discretion for that of the persons to whose G
judgment the matter in question is entrusted by the law.

71. When the Tenth Schedule has expressly constituted the Speaker or
the Chairman as the case may be to decide the question of disqualification
and attach finality thereto, it is not for this Court to consider the facts and
decide the said question by substituting itself in the place of the Speaker. If H
268 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.

A the order of the Speaker is set aside on any of the grounds mentioned in
'Hollohan' (supra) by exercising the power of limited judicial review, the
consequential course to be adopted is to leave the matter to the Speaker to
decide afresh in accordance with law.

H. CONCLUSION
B
72. The Speaker has found on the basis of the records that the appellant
instructed the members of the BSP to indulge in violence and disrupt the
proceedings in the Assembly on 21.10.97. It is also found that the allegations
made by the respondents that the members of the JBSP were kept under threat
C by the appellant and prevented from entering Lucknow. In view of such
finding also which is supported by records, the discretionary jurisdiction
under Article 136 of the Constitution should not be exercised in favour of the
appellant.

For all the above reasons this appeal deserves to be and is hereby
D dismissed.

T.N.A. Appeal disposed of.