Holding

The Speaker must decide the disqualification petition as a tribunal and cannot rely solely on an unproven claim of split; absent prima facie evidence of a split, the MLAs who voluntarily gave up their party membership are disqualified under paragraph 2 of the Tenth Schedule.

Summary

In 2003, thirteen Uttar Pradesh MLAs elected on the Bahujan Samaj Party (BSP) ticket met the Governor and asked him to invite the Samajwadi Party to form the government, thereby voluntarily relinquishing their BSP membership. The BSP leader filed a petition under Article 191 read with paragraph 2 of the Tenth Schedule seeking their disqualification, while the same MLAs, together with twenty‑four others, later applied to the Speaker for recognition of a split in the BSP under paragraph 3. The Speaker accepted the split claim but failed to decide the disqualification petition, later dismissing it on procedural grounds. The Supreme Court held that the Speaker must decide the disqualification issue as a tribunal and cannot treat a split claim independently of that jurisdiction; moreover, a split must be proved prima facie, which was not done. Consequently, the Court found the 13 MLAs had voluntarily given up their party membership and were disqualified from the Assembly effective 27 August 2003. The appeal of the writ petitioner (BSP leader) was allowed, and the appeals of the 37 MLAs were dismissed.

Issues considered

The scope of the Speaker's jurisdiction under paragraph 6 of the Tenth Schedule when a disqualification petition is pending.
Whether a claim of split under paragraph 3 of the Tenth Schedule can be decided without a prima facie proof of an actual split in the original political party.
The point in time at which disqualification under paragraph 2 of the Tenth Schedule is incurred – upon voluntary relinquishment of party membership or upon the Speaker's decision.
The extent of judicial review permissible over the Speaker's order under the Tenth Schedule.

Legislation cited

Constitution (Fifty‑second Amendment) Act, 1985
Constitution of Indias. Article 102, s. Article 191, s. Tenth Schedule para 2, s. Tenth Schedule para 3, s. Tenth Schedule para 4, s. Tenth Schedule para 6

Subjects

defectiondisqualificationTenth ScheduleSpeaker's jurisdictionsplit in political partymergerjudicial reviewlegislative assembly

Judgment

SRI RAJENDRA SINGH RANA AND ORS. A
v.
SWAMI PRASAD MAURY A AND ORS.

FEBRUARY 14, 2007

[K.G. BALAKRISHNAN, CJ., H.K. SEMA, DR. AR. LAKSHMANAN, B
P.K. BALASUBRAMANY AN AND D.K. JAIN, JJ.]

Constitution of India, 1950:

Article 191 read with para 2 of Tenth Schedule-Defection- C
Disqualification of MLAs-13 MLAs elected on tickets of the political party
whose Chief Minister had submitted resignation of her Cabinet, giving letters
of request to Governor to invite leader of opposition party to form
Government-Petition before Speaker to disqualify the said 13 MLAs-Later,
a request made to Speaker by 37 MLAs, elected on tickets of the same party D
to recognize a split in the party-Speaker accepting split without deciding
application seeking disqualification-Writ Petition before High Court-Later,
Speaker rejecting application/or disqualification-This order also challenged
in writ petition-High Court after keeping petition pending for long quashed
order of Speaker and remitted matter to him to decide application for
disqualification-Held, Speaker has necessarily to decide question of E
disqualification as a Tribunal-The MLAs sought to be disqualified have a
right to take plea of split or merger of their party with another party and
the claim under paragraph 3 or paragraph 4 of Tenth Schedule are answers
to prayer for disqualification-Under Tenth Schedule Speaker does not have
an independent power divorced from motion seeking disqualification of F
members concerned, to decide the split or merger as contemplated in
paragraph 3, or paragraph 4 of Tenth Schedule-To that extent original
order of Speaker cannot be considered to be in terms of Tenth Schedule-
ln the letters given by 13 MLAs, there was no claim regarding split-The act
ofgiving letters requesting Governor to call upon leader of other side to form
Government would, within meaning ofparagraph 2 of Tenth Schedule, amount G
to voluntarily giving up membership of the party on whose tickets said
members had got elected-It has not been proved that there was any split
in the party on relevant date as claimed by them-Therefore, thz 13 MLAs
stand disqualified from the State Legislative Assembly in terms of Article
591 H
592 SUPREME COURT REPORTS (2007] 2 S.C.R.

A 191(2) read with paragraph 2 of Tenth Schedule with effect from the date
they gave letters to the Governor-Interpretation of Constitution-Purposive '"1-
interprelat ion.

Article 191 read with para 2 and para 6 of Tenth Schedule-
Disqualification of MLAs on ground of defection-Time when it occurs-
B Held, disqualification occurs on a member voluntarily giving up his
membership of the political party or at the point of defiance of whip issued
to him.

Articles 226 and 136, Para 6 of Tenth Schedule-Judicial review of )
C order of Speaker of State Legislative Assembly-Petition before Speaker
seeking disqualification of certain members of a political party in terms of
paragraph 2 of Tenth Schedule-Later application before Speaker by some
more members of the said party to recognize split in the party in terms of
paragraph 3 of Tenth Schedule-Speaker keeping application for
disqualification pending and recognizing the split-Held, Speaker totally
D misdirected himself in holding that there was split in the party while leaving
open the question of disqualification and thus committed a jurisdictional
illegality warra~ting exercise of power of judicial review-By leaving the
question of disqualification undecided in original order, Speaker failed to
exercise jurisdiction conferred on him in para 6 of Tenth Schedule-Speaker
has committed an error that goes to root of matter or an error that is so
E fundamental that even under a limited judicial review, order of Speaker has
to be interfered with-High Court was right in quashing order of Speaker.

AdministratiOn of Justice:

High Court-Dealing with matter of some consequence and
F constitutional propriety in a tardy manner-Held, more promptitude was
expected of the High Court and it should have ensured that the unfortunate
happenings were avoided

The Coalitio~ Government of the State of Uttar Pradesh headed by the
G leader of Bahuja Samaj Party took a unanimous decision on 25.8.2003 for
recommending dissolution of the Assembly. On 26.8.2003 the Chief Minister
submitted resignation of her Cabinet. On 27.8.2003, 13 members of the
Legislative Assembly elected on tickets of BSP requested the Governor to .-"
invite the leader of Samajwadi Party to form the Government. In the
circumstances, the Governor did not accept the recommendation to dissolve
H the Assembly and invited the leader of Samajwadi Party to form the
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA 593

~ Government. On 4.9.2003, leader of the Legislature, B.S.P. (B.S.P. leader) A
filed a petition before the Speaker in terms of Article 191 read with para 2 of
the Tenth Schedule to the Constitution of India praying for disqualification of
the 13 B.S.P. MLAs, who proclaimed support to Samajwadi Party before the
Governor, since they had voluntarily given up their membership of BSP. On
6.9.2003, a request was made to the Speaker by 37 MLAs elected on BSP
tickets including the earlier 13 MLAs, to recognise a split in BSP as one
B
third of the members out of l 09 Legislators of BSP had in a body separated
from the party pursuant to a meeting held on 26.8.2003. The Speaker passed
I. an order accepting the split in BSP. The Speaker, however, did not decide the
application made by BSP leader seeking disqualification of the 13 MLAs.

The BSP leader filed a writ petition before the High Court on 29.9.2003
c
challenging the order dated 6.9.2003, passed by the Speaker. The Division
Bench of the High Court kept on adjourning the matter. Meanwhile the
Speaker rejected the application seeking disqualification of the 13 BSP MLAs
by his order dated 7.9.2005, though earlier he had adjourned the application
for being taken up after the decision of the writ petition. In view of the order D
., date 7.9.2005, an amendment application was moved in the writ petition. Due
to the lack of mutual understanding between the two Judges comprising the
f Bench, the matter was referred to the Full Bench headed by the Chief Justice
of the High Court. The writ petition was disposed of by 2-1 majority. The Chief
Justice dismissed the writ petition, whereas the remaining two Judges quashed
E
the orders of the Speaker and directed him to reconsider the matter with
particular reference to the petition for disqualification of the 13 MLAs.
Aggrieved, the writ petitioner filed CA No. 769 of2007 and the 37 MLAs,
who left the BSP, filed the other appeals.

It was contended for the writ petitioner that the Speaker committed an F
illegality in not deciding his petition for disqualification of the 13 MLAs, and
subsequently recognising 37 MLAs including the 13, as a separate group on
the ground that they had split from the BSP. It was submitted that the liability
or disability was incurred at the point of voluntarily giving up the membership
of the political party. On the other hand, according to the 37 M.L.As._ who left
G
.
\
the party, the relevant point of time was the time when the Speaker took a
decision on the plea for disqualification.
~
On the questions: whether the impugned decision of Speaker is liable
to be set aside in exercise of the power of judicial review; whether on 27.8.2003
the 13 MLAs of B.S.P. who met the Governor with the request to invite the
H
594 SUPREME COURT REPORTS [2007] 2 S.C.R.

A leader of Samajwadi J>arty to form the Government had defected on 27.8.2003; r-
and whether they were able to establish their claim that on 26.8.2003 there
had been a split in the Bahujan Samaj Party and one third of the BSP MLAs
had come out of that party,

Allowing Civil Appeal No. 769 of2007 filed by the writ petitioner (BSP
B leader), and dismi~sing the appeals of the 37 MLAs, the Court
HELD:l.1. In the context of the introduction of sub-Article (2) of Article
102 and Article 191 of the Constitution, a proceeding under the Tenth
,\
Schedule to the Constitution is one to decide whether a Member has become
disqualified to hold his position as a Member of the Parliament or of the
c Assembly on the ground of defection. The Tenth Schedule cannot be read or
construed independent of Articles 102 and 191 of the Constitution and the
object of those Arti\:Ies. A defection is added as a disqualification and the Tenth
Schedule contains the provisions as to disqualification on the ground of
defection. A proceeding under the Tenth Schedule gets started before the
D Speaker only on a complaint being made that certain persons belonging to a
political party had incurred disqualification on the ground of defection. To
meet the daim so raised, the Members of the Parliament or Assembly against
whom the proceedings are initiated have the right to show that there has been
\
a split in the original political party and they form one-third of the members
of the legislature l!f that party, or that the party has merged with another
E political party and hence paragraph 2 is not attracted. (Para 25] (612-D, E, F]

1.2. On the scheme of Articles 102 and 191 and the Tenth Schedule the
Speaker acts under the Tenth Schedule only on a claim of disqualification
being made befor~ him in terms of paragraph 2 of the Tenth Schedule, and
the determination of the question of split or merger cannot be divorced from
F the motion before the Speaker seeking a disqualification of a member or
members concerned. Therefore, it cannot be said that under the Tenth
Schedule to the Constitution, the Speaker has an independent power to decide
that there has been a split or merger of a political party as contemplated by
paragraphs 3 and 4 of the Tenth Schedule to the Constitution. The power to
G recognise a separate group in Parliament or Assembly may rest with the
Speaker on the basis of the Rules of Business of the House. But that is
different from saying that the power is available to him 1H1der the Tenth >.,,.,
Schedule to the Constitution independent of a claim being determined by him
that a member or a number of members had incurred disqualification by
defection. To that extent, the decision of the Speaker in the case on hand cannot
H
SRI RAJ END RA SINGH RANA v. SWAMI PRASAD MAURYA 595
be considered to be an order in terms of the Tenth Schedule to the Constitution. A
The Speaker has failed to decide the question, he was called upon to decide,
by postponing a decision thereon. (Paras 25-26] (612-G, H; 613-A, BJ

2.1. The Speaker has necessarily to decide the question of
disqualification as a Tribunal In the context of such a claim against a member
to disqualify him, that member, in addition to a plea that he had not voluntarily B
given up his membership of the Party or defied the whip issued to him, has
also the right.to show that there was a split in the original political party that
other legislators have also come out of the legislature party as a consequence
of that split, that they together constituted one-third of the total number of
legislators elected on the tickets of that party. He has also the right to take
up a plea that there has been a merger of his party with another party in C
terms of paragraph 4 of the Tenth Schedule. A claim under paragraph 3 as it
existed prior to its deletion or under paragraph 4 of the Tenth Schedule, are
really answers to a prayer for disqualifying the member from the legislature
on the ground of defection. In the instant case, there was no finding by the
Speaker that there was a split in the original political party, a condition for D
application of paragraph 3 of the Tenth Schedule. (Paras 19, 27(
(613-H; 614-A, B, C; 609-F]

Kihoto Hallahan v. Zachillhu & Ors., (1992] l SCR 686, relied on.

Ravi S. Naik v. Union of India, (1994] l SCR 754, referred to.
E
2.2. Under the Tenth Schedule, the Speaker is not expected to simply
entertain a claim under paragraphs 3 and 4 of the Schedule without first
acquiring jurisdiction to decide a question of disqualification in terms of
paragraph 6 of the Schedule. The Speaker cannot say that he will first decide
whether there has been a split or merger as an authority and thereafter decide
the question whether disqualification has been incurred by the members, by F
way of a judicial adjudication sitting as a Tribunal. It is part and parcel of his
jurisdiction as a Tribunal while considering a claim for disqualification of a
member or members to decide that question not only in the context of the plea
raised by the complainant but also in the context of the pleas raised by those
who are sought to be disqualified that they have not incurred disqualification G
in view of a split in the party or in view of a merger. The power if any, he may
otherwise exercise independently to recognise a group or a merger, cannot
be traced to the Tenth Schedule to the Constitution. The power under the Tenth
Schedule to do so accrues only when he is called upon to decide the question
referred to in paragraph 6 of that Schedule. (Paras 27-28]
(615-E, F; 614-D, E; 615-F] H
596 SUPREME COURT REPORTS [2007] 2 S.C.R.

A Prakash Singh Badal v. Union of India & Ors., A.I.R. (1987) Punjab & t-
Haryana 263, approved.

2.3. In the instant case, the Speaker had a petition moved before him
for disqualification of 13 members of the B.S.P. When that application was
pending before him, certain members of B.S.P. had made a claim before him
B that there has been a split in B.S.P. The Speaker, on the scheme of the Tenth
Schedule and the rules framed in that behalf, had to decide the application for
disqualification made and while deciding the same, had to decide whether in
view of paragraph 3 of the Tenth Schedule, the claim of disqualification has
/>
to be rejected. The Speaker had totally misdirected himself in purporting to
c answer the claim of the 37 M.L.As. that there has been a split in the party
even while leaving open the question of disqualification raised before him by
way of an application that was already pending before him. This failure on the
part of the Speaker to decide the application seeking a disqualification cannot
be said to be merely in the realm of procedure. It goes against the very
constitutional scheme of adjudication contemplated by the Tenth Schedule read
D in the context of Articles 102 and 191 of the Constitution. The same is a
jurisdictional illegality, an illegality that goes to the root of the so called
decision by the Speaker on the question of split put forward before him. The
,,
decision of the Speaker impugned is liable to be set aside in exercise of the
power of judicial review. [Para 29) [615-G; 616-A, B, C, DJ "
E 2.4. There is another aspect. The Speaker, after he kept the
determination of the question of disqualification pending, passed an order that
the said petition will be dealt with after the High Court had taken a decision
on the writ petition pending before it and directed that the said petition be
taken up after the writ petition was disposed of. Then, suddenly, without any
F apparent reason, 'the Speaker took up that application even while the writ
petition was pending and dismissed the same on 7.9.2005 by purporting to
accept a so called preliminary objection raised by the 13 M.L.As. sought to
be disqualified, to the effect that his recognition of the split of the 37 M.LAs.
including themselves, has put an end to that application. This last order is
clearly inconsistent with the Speaker's earlier order dated 14.11.2003 and
G still leaves open the question whether the petition seeking disqualification
should not have been decided first or at least simultaneously with the
application claiming recognition of a split. If the order recognising the split "-·
goes, obviously this last order also cannot survive. It has perforce to
go. [Para 30) [616-E, F, G)
H
.,
SRI RAJENDRASINGH RANA v. SWAMI PRASAD MAURYA 597
3.1. It is not enough that a claim is made of a split in the original party, A
~ in addition to showing that one third of the members of the Legislature Party
have come out of the party, but it is necessary to prove it at least primafacie.
Those who have left the party, will have, prima facie, to show by relevant
materials th~t there has been a split in the original party. It cannot be said
that a split in the original political party need not separately be established if
a split in the legislature party is shown. !Paras 37-38) 1620-C, D; 621-A) B

3.2. Jn the instant case, it is clear that the Speaker, in the original order,
left the question of disqualification undecided. Thereby he has failed to exercise
t, the jurisdiction conferred on him by paragraph 6 of the Tenth Schedule. Such
a failure to exercise jurisdiction cannot be held to be covered by the shield of
paragraph 6 of the Tenth Schedule. He has also proceeded to accept the case
c
of a split based merely on a claim in that behalf. He has entered no finding
whether a split in the original political party was prima facie proved or not.
The Speaker has committed an error that goes to the root of the matter or an
error that is so fundamental, that even under a limited judicial review the
1 order of the Speaker has to be interfered with. Thus, clearly there was an D
error which attracted the jurisdiction of the High Court in exercise of its
power of judicial review. Therefore, the majority of the High Court was right
in quashing the decisions of the Speaker. !Para 40-41) 1622-C, D, E, Fl
,I
Kihoto Hallahan v. Zachi/lhu & Ors., [1992) I SCR 686; Jagjit Singh
v. State of Haryana (2006) 13 SCALE 335 and Raja Ram Pal v. The Hon 'ble E
Speaker, Lok Sabha & Ors., JT (2007) 2 SC I, relied on.

3.3. Normally, this Court might not proceed to take a decision for the
first time when the authority concerned has not taken a decision in the eyes
of law and this Court would remit the matter to the authority for taking a
proper decision in accordance with law on the relevant aspects. But, keeping F
in view the facts in the instant case, that the alleged act of disqualification of
the 13 MLAs took place on 27.8.2003 when they met the Governor and
requested him to call the leader of the opposition to form the Government, the
petition seeking disqualification of these 13 members based on that action of
theirs has been allowed to drag on till now, and the term of the Legislative G
Assembly that was constituted after the elections in February 2002, is coming
to an end on the expiry of five years, a remand of the proceeding to the Speaker
/ .. or this Court affirming the order of remand passed by the High Court, would
mean that the proceeding itself may become infructuous. Therefore, this Court
has to decide the issue itself on the material available. !Para 44-45]
[624-8, C, D, G) H
-Y
'-

598 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 4.1. It may be true that collective dissent is not intended to be stifled by
the enactment pf sub-article (2) of Articles 102 and 191 and paragraph 2 of
r--
the Tenth Schedule. But at the same time, it is clear that the object is to
discourage defection which has assumed menacing proportions undermining
the very basis of democracy. Therefore, a purposive interpretation of paragraph
2 in juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called
B for. (Para 331 (617-G]

4.2. The act of disqualification occurs on a member voluntarily giving
up his membership of a political party or at the point of defiance of the whip
issued to him. Therefore, the act that constitutes disqualification in terms of
paragraph 2 of the Tenth Schedule is the act of giving up his membership of >
c the party or defiance of the whip. Therefore, in the background of the object
sought to be achieved by the Fifty Second Amendment of the Constitution and
on a true understanding of paragraph 2 of the Tenth Schedule with reference
~
to its other paragraphs, the position that emerges is that the Speaker has to
decide the question of disqualification with reference to the date on which the
D member voluntarily gives up his membership or defies the whip. It is really a l
decision ex post facto. The fact that in terms of paragraph 6 a decision on the
question has to .be taken by the Speaker or the Chairman, cannot lead to a
conclusion that the question has to be determined only with reference to the
date of the decision of the Speaker. [Para 341 [618-C, E, Fl l(

E 5.1. The 37 MLAs including the 13 MLAs in question had to establish
a split in the original political party, the BSP, before they can get the
protection offered by paragraph 3. The first act on the part of the 13 MLAs
which is relevant is the giving of letters by them to the Governor on 27.8.2003.
Therein, there is no claim that there was a split in the Legislature Party on
26.8.2003 as was put forward in the representation on 6.9.2003 by 37
F
members. No material is produced either to show that a meeting of the
members of BSP was convened on 26.8.2003 or that a meeting took place in
which a split ill the original political party occurred. [Paras 46-471
1625-B, C, D, E]

5.2. The act of giving a letter requesting the Governor to call upon the
G
leader of the other side to form a Government, itself would, within the meaning
of paragraph 2 of the Tenth Schedule, amount to an act of voluntarily giving
up the membership of the party on whose ticket the said members had got
~
elected. Be it ·noted that on 26.8.2003, the leader of their party had
recommended to the Governor, a dissolution of the Assembly. Clearly, from
H the conduct of meeting the Governor accompanied by the General Secretary
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAUR YA 599

-{ of the Samajwadi Party, the party in opposition and the submission of letters A
requesting the Governor to invite the leader of that opposition party to form
a Government as against the advise of the Chief Minister belonging to their
original party to dissolve the assembly, an irresistible inference arises that
the 13 members have clearly given up their membership of the BSP. No
further evidence or enquiry is needed to find that their action comes within
paragraph 2(1)(a) of the Tenth Schedule. On the materials, the only possible
B
inference in the circumstances of the case, is that it has not been proved,
even primafacie, by the MLAs sought to be disqualified that there was any
( split in the original political party on 26.8.2003 as claimed by them. The
necessary consequence would be that the 24 members, who later joined the
13, could not also establish a split in the original political party as having c
taken place on 26.8.2003. In fact even a split involving 37 MLAs on 26.8.2003
is not established. (Paras 48-49, 52) [626-A, B, C, D, E; 628-C, DI

5.3. Since it was necessary not only to show that 37 MLAs had separated
but it was also necessary to show that there was a split in the original political
party, the 13 MLAs sought to be disqualified failed to establish a defence or D
answer to the charge of defection under paragraph 2 on the basis of paragraph
"\
3 of the Tenth Schedule. The 13 MLAs, namely, respondent nos.
,. 2,3,4,5,6,9,10,14,16,19,20,21 who met the Governor on 27.8.2003, and the 37
MLA's in the writ petition filed by the B.S.P. leader, therefore, stand
disqualified from Uttar Pradesh Legislative Assembly in terms of Article
E
191(2) of the Constitution read with paragraph 2 of the Tenth Schedule
thereto, with effect from 27.8.2003. (Para 53) [628-E, F, GJ

6. The Court must express its unhappiness at the tardy manner in which
a matter of some consequence and constitutional propriety was dealt with by

~
the High Court. More promptitude was expected of that court and it should F
have ensured that the unfortunate happenings (from the point of view of just
and due administration of justice) were avoided. Though normally the Court
is reluctant to comment on the happenings in the High Court, it is constrained
to make the observations to emphasise the need to ensure that no room is
given for criticism of the manner of working of the institution. (Para 11 I
1604-E, F,GJ G
~. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 765 of2007.

From the final Judgment and Order dated 28.2.2006 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No.
5085(M/B) of2003. H
f
-y-·

600 SUPREME COURT REPORTS [2007] 2 S.C.R.

A WITH
+-
C.A. Nos. 766, 767, 768,769,770 and 771/2007

S.M.A. Kazmi, Genl., U.P., Ashok Desai, Dr. Rajeev Dhawan, Mukul
Rohtagi, Rakesh Dwivedi, U.U. Lalit, Harish N. Salve, S.C. Mishra, Altaf
B Ahmed, K.K. Lahiri, Ejaz Maqbool, Vlikash Singh, Taruna Singh, Abhijeet
Sinha, Vishwajit Singh, Niranjana Singh, Siddharth Sengar, Gaurav Bhatia,
Abhishek Chaudhary, Vimla Sinha, Aadarsh Upadhyay, Subramonium Prasad,
P.H. Parekh, Sameer Parekh, E.R. Kumar, Sonali Basu Parekh, Arun Francis,
kusti Chaturvedi (For P.H. Parekh & Co.), Shail Kumar Dwivedi, P.N. Gupta, )
G.V. Rao, S.W.A. Qadri, Rajeev Dubey, Kam)endra Mishra, A. Raghunath,
c Surya Kant, Lakshmi Raman Singh, Syed Ali Ahmad, Syed Tanweer Ahmad,
S.S. Bandyopadhyay, Mohd. Shah Nawaz Hasan, Shabana Saifi and Mohan
Pandey for the appearing parties.

The Judgment of the Court was delivered by
D I
P.K. BALASUBRAMANY AN, J. I. Leave granted.

2. The elections for the constitution of the 14th .Legislative Assembly
of the State of Uttar Pradesh were held in February 2002. Since, none of the _,.
political parties secured the requisite majority, a coalition Government was
E formed, headed by Ms. Mayawati, leader of the Bahujan Samaj Party (hereinafter
referred to as, 'B.S.P. '). B.S.P was admittedly a recognised national party. The
ministry was formed in May, 2002. On 25.8.2003, the cabinet is said to have
taken a unanimoys decision for recommending the dissolution of the Assembly.
Based on it, on 26.8.2003, Ms. Mayawati submitted the resignation of her
cabinet. Apparently, after the cabinet decision to recommend the dissolution
F of the Assembly and before Ms. Mayawati cabinet actually resigned, the
leader of the Samajwadi Party staked his claim before the Governor for forming
a Government. On 27.8.2003, 13 Members of the Legislative Assembly
(hereinafter referred to as, 'M.L.As.') elected to the Assembly on tickets of
B.S.P., met the Governor and requested him to invite the leader of the Samajwadi
Party to form the Government. Originally, 8 M.L.As. had met the Governor and
G
5 others joined them later in the day, making up the 13.

3. The Governor did not accept the recommendation ofMayawati cabinet )....._
for dissolution of the Assembly. On 29.8.2003, the Governor invited the leader
of the Samajwadi Party, Mr. Mulayam Singh Yadav to form the Government
H and gave him a time of two weeks to prove his majority in the Assembly. On ~
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA [BALASUBRAMANYAN,J.] 60 J

-{ 4.9.2003, Mr. Swami Prasad Maurya, leader of the Legislature B.S.P filed a A
petition before the Speaker in terms of Article 191 read with the Tenth
Schedule to the Constitution oflndia, praying that the 13 B.S.P. M.L.As. who
had proclaimed support to Mulayam Singh Yadav before the Governor on
27.8.2003, be disqualified in terms of paragraph 2 of the Tenth Schedule to the
Constitution on the basis that they had voluntarily given up their membership
ofB.S.P., their original political party. On 05.09.2003, a caveat was also filed B
on behalf of the B.S.P. before the Speaker of the Legislative Assembly
requesting the Speaker to hear the representative of B.S.P. in case any claim
of split is made by the members who had left the Party. On 06.09.2003, a
request was made by 37 M.L.As., said to be on behalf of 40 M.L.As. elected
on B.S.P. tickets, requesting the Speaker to recognise a split in B.S.P. on the C
basis that one third of the Members of the B.S.P. legislature party consisting
of I 09 legislators, had in a body separated from the Party pursuant to a
meeting held in the M.L.A.'s hostel, Darulshafa, Lucknow on 26.8.2003. The
Speaker took up the said application for recognition of a split, the same
evening. He verified that the 37 Members who had signed the application
presented to him had in fact signed it since they were physically present D
before him. Overruling the objections of Maurya, the leader of the legislature
B.S.P., the Speaker passed an order accepting the split in B.S.P. on the
arithmetic that 37 out of 109 comprises one third of the Members of the
legislature Party. This group came to be known as the Lok Tantrik Bahujan
Dal. But, the said Dal was short lived. For, the Speaker, a little later, on 6.9.2003 E
itself, accepted that the said Dal had merged with the Samajwadi Party. It is
relevant to note that in the order dated 6.9.2003, the Speaker did not decide
the application made by B.S.P. seeking disqualification of 13 of its M.L.As.
who were part of the 37 that appeared before the Speaker and postponed the
decision on that application. It appears that on 8.9.2003, three more M.L.As.
appeared before the Speaker stating that they supported the 37 M.L.As. who F
had appeare4 before him on 6.9.2003 and were part of that group. The Speaker
accepted their claim as well.

4. On 29.9.2003, Writ Petition No. 5085 of 2003 was filed in the High
Court of Judicature at Allahabad before the Lucknow Bench challenging the G
said order of the Speaker. On I.I 0.2003, it came up before a Division Bench
of the High Court, and it is seen from the Order Sheet maintained by the High
Court that the Writ Petition was directed to be listed on 8.10.2003 for further
hearing. It was adjourned to 13.10.2003 and then again to 22. l 0.2003 and to
29.10.2003 and further to 5.11.2003. It is recorded in the Order Sheet that on
5.11.2003, learned counsel for the writ petitioner was heard in detail. No order H
'\

602 SUPREME COURT REPORTS (2007] 2 S.C.R.

A was passed, but the matter was adjourned to the next day at the request of
counsel, who was apparently representing the Advocate General of the State. ·r-
From 6.11.2003, the matter was adjourned to 10.11.2003 and on the request of
the learned Advocate General, it was directed to be listed on 14.11.2003. The
same day, the Speaker before whom the petition filed by the writ petitioner
B Maurya seeking disqualification of 13 of the members of the B.S.P. was
pending, after noticing what he had done earlier on 6.9.2003 and 8.9.2003,
passed an order adjourning the petition seeking disqualification, on the ground
that it woul~ be in the interests of justice to await the decision of the High
Court in the pending Writ Petition since the decision therein on some of the )
issues, would be relevant for his consideration. It was therefore ordered that
C the petition for disqualification may be placed before him for disposal and
necessary action after the High Court had decided the Writ Petition.

5. In the High Court, the Writ Petition had a chequered career. On
14.12.2003, when it came up, it was directed to be listed the next week before
the appropriate Bench. On 16.4.2004, it was directed to be put up on 22.4.2004.
D On 22.4.2004, it was dismissed for default with an observation that neither any
counsel on behalf of the writ petitioner nor on behalf of the Speaker was
present. It may be noted that on 5.11.2003, the High Court had recorded that
it had heard counsel for the writ petitioner in full and the adjournment for
further hearing was at the behest of the Advocate General. Even then, on
E 22.4.2004, the High Court chose to dismiss the Writ Petition for default on the
ground that coun.sel on both sides were not present. An application for
restoration was filed on 27.4.2004 and this application was kept pending for
about 8 months until on 20.12.2004, an order was passed recalling the order
dated 22.4.2004 dis~issing the Writ Petition for default and restoring it to its
original number with a further direction to list the Writ Petition before the
F appropriate Bench on 4.1.2005. On 4.1.2005, the Writ Petition was adjourned
at the request of the Advocate General to the next day. On 5.1.2005, it was
noticed by the Bench that the matter appeared to have been heard in detail
at the admission stage and the Writ Petition had neither been admitted nor
any notice ordered to the respondents and counsel for the writ petitioner was
G again heard on the question of admission and the application for interim relief
he had filed and it was recorded that he had concluded his arguments with
the further direction to put up the Writ Petition the next day. On 6.1.2005, it
was recorded that counsel for the writ petitioner did not press for interim relief
at that stage and hence the application for interim relief was being rejected.

H 6. On 6.1.2005, the Writ Petition was admitted after hearing counsel for
SRI RAJENDRA SINGH RANA v. SW AMI PRASAD MAURYA (BALASUBRAMANYAN, J .] 603

...\ the writ petitioner and some counsel who appeared for the respondents. A
Notices were ordered to be issued to the opposite parties, the group of
M.L.As. who had moved the Speaker for recognition of a split. After some
further postings, on 18.2.2005, orders were passed regarding service of notice
and the Writ Petition was directed to be posted for hearing on I 0.3.2005. On
I0.3.2005, finding that there was some attempt at evasion of notices, the court
ordered substituted service of notices and directed the listing of the Writ
B
Petition on 11.4.2005. On 11.4.2005, service of notice was declared sufficient
and the matter was directed to be posted on 2.5.2005 for hearing. After a
#(
number of adjournments mainly at the instance of the respondents in the Writ
Petition, arguments were commenced. On 12.5.2005, counsel for the writ
petitioner concluded his arguments and the case was further adjourned to c
25.5.2005 for further hearing after taking certain counter affidavits on record.
Ultimately, the argument of one of the counsel for the respondents was
started and the matter was adjourned to 6. 7.2005 for completion of his
arguments and for arguments by other counsel for the respondents in the
Writ Petition.
D

~
7. Meanwhile, on 7.9.2005, the Speaker passed an order rejecting the
petition filed by Maurya for disqualification of 13 M.L.As. ofB.S.P. It may be
noted that the Speaker had earlier adjourned that application for being taken
I up after the Writ Petition was decided. Meanwhile, the arguments went on in
the High Court and the Writ Petition was directed to be put up on 17 .8 .2005
E
for further arguments. The matter was adjourned to the next day and again
to subsequent dates.

8. On 8.9.2005, an application was made on behalf of the respondents
seeking dismissal of the Writ Petition in view of the order of the Speaker dated
·{ 7.9.2005 dismissing the application seeking disqualification of 13 M.L.As. filed F
by the writ petitioner. The said application was dismissed the same day. On
9.9.2005, arguments were heard and the matter was adjourned for further
hearing.

9. On 21.10.2005, an application was made on behalf of the writ petitioner
praying for an amendment of the Writ Petition. It was directed to be listed G
granting time to the respondents in the Writ Petition to file objections. On
22.11.2005, the Order Sheet records an order by one of the judges as follows:

"The matter was listed today only for consideration and disposal of
the amendment application together with application for further hearing
and by 4.00 PM arguments with respect to amendment application H
604
.. SUPREME COURT REPORTS [2007] 2 S.C.R.

A could be concluded. As indicated in the order passed on the application
brot~er M.A. Khan (J) took out a typed and signed 'order' rejecting
the application for amendment. Like previous order, brother Hon 'ble
M.A. Khan again took out a duly typed and signed judgment/ his
opinion and directed the bench Secretary to place the same on record
as his 'judgment" in the main writ petition. The draft of the said
B judgment was also not circulated to me nor was I ever been consulted
by him. It is further pointed out that brother Hon'ble M.A. Khan (J)
did not indicate at any time that he had already written out the
judgment. Further at no point of time, I had indicated to brother M.A.
Khan.' (J) that the judgment in the writ petition may be prepared by
C him. It goes without saying that neither the orders passed on the
application nor the so called judgment on the merits of the writ
petition have been dictated in the open court by brother Hon 'ble
M.A .. ~han(J)."
I

I0. Apparently, in view of these happenings, the learned Chief Justice
D constituted a Full Bench for hearing the Writ Petition. The amendment prayed
for was allowed and the Writ Petition ultimately heard finally and disposed
of by the judgment under appeal. As per the judgment under appeal, the Writ
Petition was dismissed by the learned Chief Justice while the other two
learned Judges quashed the orders of the Speaker and directed the Speaker
E to reconsid~r the matter with particular reference to the petition for
disqualification of 13 M.L.As. filed by the writ petitioner and pass appropriate
orders. Feeling aggrieved, these appeals have been filed.

I I. Whatever may be our ultimate decision on the merits of the case,
we must express our unhappiness at the tardy manrier in which a matter of
F some consequence and constitutional· propriety was dealt with by the High
Court. More promptitude was expected of that court and it should have
ensured that th~ unfortunates happenings (from the point of view of just and
due administration of justice) were avoided. Though we are normally reluctant
to comment on the happenings in the High Court, we are constrained to make
the above observations to emphasis the need to ensure that no room is given
G for criticism of the manner of working of the institution.
12. The respondents in the Writ Petition, the M.L.As. constituting 37
B.S.P. members who left the party, are the appellants in all the appeals except
the appeal arising ,out of Special Leave Petition (Civil) No. 6323 of2006 filed
H by the writ petitioner Maurya. Whereas, the respondents in the Writ Petition
\
')-·

SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA [BALASUBRAMANYAN, J.] 605

challenge the decision of the majority of the Bench remitting the matter to the A
Speaker, the writ petitioner, in his appeal challenges the order ofremand made
by the majority on a plea that on the pleadings and the materials available,
the High Court ought to have straightaway allowed the petition filed by the
writ petitioner for disqualification of the 13 M.L.As. According to him, a
remand was unnecessary and considering the circumstances, a final order
ought to have been passed by the High Court. B

13. Article 191 of the Constitution of India deals with the disqualification
J(._ for membership of legislative assemblies just like Article I 02 deals with
disqualification for membership to the Houses of Parliament. Article 102 and
Article 191 came to be amended by the Constitution (Fifty-second Amendment)
Act, 1985 with effect from 1.3.1985 providing that a person shall be disqualified
c
for being a member of either Houses of Parliament or of Legislative Assembly
or Legislative Council of a State if he is so disqualified under the Tenth
Schedule to the Constitution of India. The Tenth Schedule was also added
containing provisions as to disqualification on ground of defection. The
constitutional validity of this amendment was challenged before this Court in D
Khoto Hollohan v. Zachi/lhu and Ors., [1992] I S.C.R. 686. This Court upheld
'I
the validity of the amendment subject to the finding that paragraph 7 of the
Tenth Schedule to the Constitution of India required ratification in terms of
Article 368(2) of the Constitution of India and it had not come into force, so
that there was no need to pronounce on the validity of paragraph 7 to the
E
extent it precluded a judicial review of the decision of the Speaker. But it held
that judicial review could not be kept out, though such review might not be
of a wide nature. We are proceeding to examine the relevant aspects in the
light of that decision.

14. The application by writ petitioner - Maurya to the Speaker, in the F
·(
present case, was made under paragraph 2 of the Tenth Schedule to the
Constitution on the ground that the 13 Members who met the Governor on
27 .8.2003 had voluntarily given up their membership of B.S.P., their original
political party as defined in the Tenth Schedule. The claim on behalf of the
M.L.As. sought to be disqualified and those who claimed to have gone out .
with them from B.S.P. is that the disqualification at the relevant time is subject G
to the provisions of paragraphs 3, 4 and 5 of the Tenth Schedule and since
,..(_
there has been a split in B.S.P in terms of paragraph 3 of the Tenth Schedule
and a subsequent merger of the 40 M.L.As. with the Samajwadi Party in terms

- of paragraph 4 of the Tenth Schedule, they could not be held to be c!isqualified ·
on the ground of defection in terms of paragraph 2(l)(a) of the Tenth Schedule. H
I
~

606 SUPREME COURT REPORTS [2007] 2 S.C.R.

A The Speaker, as noticed, did not pass any order on the application for I
~

disqualification of 13 M.L.As. made by Maurya, the leader of the B.S.P.
Legislature Party in terms of paragraph 2 of the Tenth Schedule but proceeded
to pass an order on the petition filed by 37 M.L.As. before him, claiming that
there has been a split in B.S.P. and they constituted one third of the Legislature
Party which had l 09 members. When he passed the order on the claim of the
B M.L.As. who had left B.S.P., the then Speaker postponed the decision on the
petition for disqualification filed by Maurya, later adjourned it to await the
decision in the Writ Petition, but still later, the successor Speaker went back
on that order and proceeded tc;> dismiss it after entertaining an alleged :.-
preliminary objection even while the Writ Petition was still pending and it was
c being argued, on the ground that he had already recognised the split.

15. It was thereafter that the writ petitioner sought for an amendment
of the Writ Petition which was subsequently allowed.

16. We will now revert to the action that triggered the controversy. Eight
D of the M.L.As. ofRS.P. followed by five other members ofB.S.P. handed over
identically worded letters to the Governor on 27.8.2003. A running translation
of the letters is as under:

"We under mentioned M.L.As. whose signatures are marked below
humbly request you that Shri Mulayam Singh Yadav Ji be invited to
E form Government because the public of Uttar Pradesh neither want
election nor want President Rule."

These members were the members who belonged to B.S.P. and they were
requesting the Governor to invite the leader of the opposition to form the
Government. It is based on this action, that Maurya, the leader of the
F Legislature B.S.P., had filed the petition before the Speaker seeking
disqualification of these 13 members on the ground that they had voluntarily
left B.S.P., recognised by the Election Commission as a national party. It was
while this proceeding was pending that on 6.9.2003, an application for
recognition of a split was moved by the 37 M.L.As. before the Speaker. Since
the .leader of B.S.P. had filed a caveat before the Speaker, the Speaker chose
G
to hear the caveator while passing the order. Considering the nature of the
controversy involved, it appears to be proper to quote the said representation \.-
or application made by the 37 M.L.As. before the Speaker. The running

H
translation of the same reads:

"We, the following Members of the Legislative Assembly, are notified
-
SRIRAJENDRASINGHRANAv. SWAMI PRASADMAURYA [BALASUBRAMANYAN,J.] 607

as Members belonging to Bahujan Samaj Party. There is dissatisfaction A
_,,
prevalent among the members of BSP on account of dictatorial
approach, wrong policies and misbehaviour towards the Members as
practiced by the BSP Leader Km. Mayawati. Being aggrieved on
account of the aforesaid reasons, Members, office bearers and workers
of the Bahujan Samaj Party held a meeting in Darulsafa on 26.08.2003.
All present unanimously stated that Km. Mayawati is occupied with B
fulfilment of her personal interests alone at the cost of interests of the
State of U.P. and society.
I
-.--(.'\
Hence, it was unanimously resolved that the Bahujan Samaj Party
be split up and a new faction in the name of Loktantrik Bahujan Dal
be constituted under the Leadership of Shri Rajendra Singh Rana,
c
Member Legislative Assembly. We, the undersigned Members of
... Legislative Assembly have constituted a separate group which
represents the new faction arising out of the split. Our number is more
than one third of the total number of Members of the erstwhile
Bahujan Samaj Party of the Legislative Assembly. D
It is, therefore, requested that the aforesaid Loktantrik Bahujan
\
Dal be recognised as a separate group within the Legislative Assembly
i and a separate arrangement for their seating inside the Assembly be
made."
E
It was signed by 37 M.L.As.

17. It is on this application that the Speaker passed an order the same
evening and it is that order that is the subject matter of challenge in the Writ
Petition filed before the High Court. The order of the Speaker records that as
per the contents of the application, a meeting of members, office bearers and F
--( Members of Legislative Assembly belonging to B.S.P. was held on 26.8.2003
in the Darulshafa and in this meeting, it was unanimously resolved that a new
faction in the name of Loktantrik Bahujan Dal under the leadership of Rajendra
Singh Rana be constituted. The Speaker proceeded to reason that the number
of members who have constituted the group are seen to be 37 out of I 09 and
that would constitute one-third of the total number of Legislators belonging G
to B.S.P. In view of the objections raised by Maurya, who had filed the caveat
before him, the Speaker verified whether 37 members had signed the
representation or application. Since they were present before him and were
identified, he proceeded on the footing that 37 M.L.As. of 8.S.P. had appeared
before him with the claim. The Speaker noticed the contention of the caveator H
608 SUPREME COURT REPORTS [2007] 2 S.C.R.

A that the burden of proving any split in the original political party lay on the
37 M.L.As. and that unless they establish a split in the original political party,
they could not resort to paragraph 3 of the Tenth Schedule to the Constitution
and claim that there has been a split in the political Party and consequently
they have not incurred disqualification under paragraph 2 of the Tenth Schedule.
Further, overruling the contention of the caveator that the decision relating
B to the split could be taken only by the Election Commission and overruling
the contention that the original 13 members who had left the Party or
voluntarily given up their membership of the Party did not constitute one-
third of the total number of the Legislators belonging to B.S.P. and hence they
are disqualified, the Speaker proceeded to say that the first condition to
C satisfy the requirement of paragraph 3 of the Tenth Schedule was only that
the members must have made a claim that the original legislature Party had
split and they should show that as a consequence, the legislature Party has
also split and that the split group had one-third of the members of the
legislature Party. Th<:refore, the Speaker taking note of the one-third legislators
before him proceeded on the basis that it would be sufficient if a claim is made
D of a split in the original political Party. The Speaker formulated the position
thus:

"Under para 3 following conditions have to be fulfilled:-

I. The making of a claim by any Member of a House that he and
E some other members of his legislature party have constituted a
group representing a faction which has arisen as a consequence
of split in his original political party.
2. The newly constituted group has at least one third of the total
number of members of such legislature party.
F
If in a case the aforesaid two conditions are fulfilled, the person ).

making such a claim and the other members will not be disqualified
from the membership of the Legislative Assembly on the grounds
rpentioned in para 2 of the I0th Schedule."

G The Speaker also overruled the argument that only 13 M.L.As. had originally
quit the original political party and they should be disqualified and the others
subsequently joining them would not improve the position. The Speaker
proceeded to' observe that he had to decide the question of disqualification
of the 13 M.L.As. raised by Maurya functioning as a Tribunal and he would
be taking a decision thereon at the appropriate time. It was thus that the claim
H of 37 members of a split, was recognised by the Speaker. The Speaker thus
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA (BALASUBRAMANYAN,J.] 609

did not decide whether there was a split in the original political party, even A
prima facie.

18. The same day, the Speaker also entertained another application from
the 37 M.L.As. and ordered that he was recognising the merger of the Lok
Tantrik Bahujan Dal in the Samajwadi Party.
B
19. The Speaker had relied on an observation in Ravi S. Naik v. Union
of India, [1994) 1 S.C.R. 754 to justify the acceptance of the position adopted
by the 37 M.L.As. for recognition of a split that it was enough if they made
a claim of split in the original political party. In paragraph 36 of that judgment,
after setting down the two requirements as: C
(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
(ii) Such group must consist of not less than one-third of the members D
of such legislature party.

This Court observed:

"In the present case the first requirement was satisfied because Naik
has made such a claim. The only question is whether the second E
requirement was fulfilled."

But the Speaker failed to notice the following sentence in paragraph 38 of the
same judgment wherein it was stated:

"As to whether there was a split or not has to be determined by the F
Speaker on the basis of the material placed before him."

Thus, there was no finding by the Speaker that there was a split in the original
political party, a condition for application of paragraph 3 of the Tenth Schedule.

20. Now we may notice the position adopted by the High Court in the G
judgment under Appeal while dealing with the Writ Petition filed by Maurya
challenging the order of the Speaker. The learned Chief Justice took the view
that the Speaker was justified in finding a split on the basis of a claim of split
in the original political party and one-third members of the legislature party
separating by taking into account all events upto the time· of his taking a
decision on the question of split. The learned Chief Justice held that the H
610 SUPREME COURT REPORTS [2007] 2 S.C.R.

A snowballing effect of a split could be taken note of and that the Speaker had
not committed any illegality in not considering and deciding the petition filed
by Maurya seeking disqualification of 13 M.L.As. in the first instance and in
keeping it pending. He thus upheld the decision of the Speaker. But the other
two learned judges, though they gave separate reasons, basically took the
B view that the Speaker was in error in not deciding the application seeking
disqualification of the 13 members first and in proceeding to decide the
application for recognition of a split made by the 37 legislators before him.
Since the proceeding arose out of a petition seeking a disqualification in terms
of paragraph 2 of the Tenth Schedule to the Constitution, in terms of paragraph ,•\
6 of the Tenth Schedule, a decision on the claim for disqualification could not
· C be kept by, even while recognising a split. They therefore quashed the order
of the Speaker and directed the Speaker to reconsider the question of defection
raised by the writ petitioner Maurya, in the light of the stand adopted by
some of the M.L.As. before the Speaker that there has been a split in terms
of paragraph 3 of the Tenth Schedule and so they have not incurred the
disqualification in terms of paragraph 2 of the Tenth Schedule. This majority
D view and the interference with the order of the Speaker is challenged by the
various respondents in the Writ Petition forming the group of 37. The writ
petitioner himself has challenged that part of the order which purports to
remliji_d the proceeding to the Speaker by taking up the position that on the
materials, the High Court ought to have straightaway held that the defence
E under paragraph 3 of the Tenth Schedule to the Constitution has not been
made out by the 37 members of B.S.P. and that the 13 of them in the first
instance and the balance 24 in the second instance stood disqualified in terms
of paragraph 2(1)(a) of the Tenth Schedule to the Constitution.

21. Elaborate arguments have been raised before us on the interpretation
F of the Tenth Schedule, the content of the various paragraphs and on the facts
of the present case. Based on the arguments it is first necessary to deal with
the scope and content of the Tenth Schedule in the light of the object with
which it was enacted.

22. The Constitution (Fifty-Second Amendment) Act, 1985 amended
G Articles I02 and 191 of the Constitution by introducing sub-articles to them
and by appending .the Tenth Schedule introducing the provisions as to
disqualification on the ground of defection. They were introduced to meet the
threat-posed to dem9cracy by defection. A ground of disqualification from
the membership of the Parliament or of the Assembly on the ground of
H defection was introduced. The constitutional validity of the amendment and

., I
SRI RAJENDRA SINGH RANA r. SWAMI PRASAD MAURYA [BALASUBRAMANYAN,J] 611

the inclusion of the Tenth Schedule was upheld by this Court in Kihata A
-I Hallahan (supra) except as regards paragraph 7 thereof, which was held to
require ratification in terms of Article 368(2) of the Constitution. It is not in
dispute that paragraph 7 of the Tenth Schedule is not operative in the light
of that decision. The constitution Bench held that the right to decide has
been conferred on a high dignitary, namely, the Speaker of the Parliament or
the Assembly and the conferment of such a power was not anathema to the B
constitutional scheme. Similarly, the limited protection given to the proceedings
before the Speaker in terms of paragraph 6 of the Tenth Schedule to the
Constitution was also justified even though the said protection did not
f
' preclude a judicial review of the decision of the Speaker. But that judicial
review was not a broad one in the light of the finality attached to the decision c
of the Speaker under paragraph 6(1) of the Tenth Schedule and the judicial
review was available on grounds like gross violation of natural justice,
perversity, bias and such like defects. It was following this that the Ravi S.
Naik (supra) decision was rendered by two of the judges who themselves
constituted the majority in Kihata Hallahan (supra) and the observations
above referred to but which were explained subsequently, were made. Suffice D
it to say that the decision of the Speaker rendered on 6.9.2003 was not immune
~
from challenge before the High Court under Articles 226 and 227 of the
Constitution of India.
f
23. Learned counsel for the writ petitioner raised an interesting argument.
E
He submitted that the Speaker in terms of paragraph 6 of the Tenth Schedule
was called upon to decide the question of disqualification and only to a
decision by him on such a question, that the qualified finality in terms of
paragraph 6(1) got attached and not to a decision independently taken,
purporting to recognise a split. He pointed out that in this case, the Speaker
had not decided the petition for disqualification filed against the 13 M.L.As., F
i' and the Speaker had only proceeded to decide the application made by 37
members subsequently for recognising them as a separate group on the
ground that they had split from the original B.S.P. in terms of paragraph 3 of
the Tenth Schedule. He submitted that no such separate decision was
contemplated in a proceeding under the Tenth Schedule since the claim of
split was only in the nature of a defence to a claim for disqualification on the
G
ground of defection and it was only while deciding the question of defection
~
that the Speaker could adjudicate on the question whether a claim of split has
been established. When an independent decision is purported to be taken by
the .Speaker on the question of split alone, the same was a decision outside
the Tenth Schedule to the Constitution and consequently, the decision of the H
612 SUPREME COURT REPORTS [2007) 2 S.C.R.

A Speaker was open to challenge before the High Court just like the decision
of any other authority within the accepted parameters of Articles 226 and 227 ~
of the Constitution. In other words, according to him, the qualified finality
conferred by paragraph 6( 1) of the Tenth Schedule was not available to the
order of the, Speaker in this case.

B 24. On behalf of the 37 M.L.As., it is contended that it is not correct
to describe paragraphs 3 and 4 of the Tenth Schedule merely as defences to
paragraph 2 and the allegation of defection, that paragraphs 3 and 4 confer
independent power on the speaker to decide a claim made under those
paragraphs. It is submitted that reliance placed on paragraph 6 and the
C contention that a question of disqualification on the ground of defection must
arise, before the Speaker could decide as a defence or answer, the claim of
split or the claim of merger was not justified. Whatever be the decisions that
were taken by the Speaker in terms of paragraph 3, paragraph 4 or paragraph
2 of the Tenth Schedule, enjoyed the qualified immunity as provided in
paragraph 6 of the Tenth Schedule.
D
25. In the context of the introduction of sub-Article (2) of Article 102
and Article 191 of the Constitution, a proceeding under the Tenth Schedule
to the Constitiition is one to decide whether a Member has become disqualified
to hold his position as a Member of the Parliament or of the Assembly on
the ground of defection. The Tenth Schedule cannot be read or construed
E independent of Articles I 02 and 191 of the Constitution and the object of
those Articles. A defection is added as a disqualification and the Tenth
Schedule contains the provisions as to disqualification on the ground of
defection. A proceeding under the Tenth Schedule gets started before the
Speaker only on a complaint being made that certain persons belonging to
p a political party had incurred disqualification on the ground of defection. To
meet the claim so raised, the Members of the Parliament or Assembly against
whom the proceedings are initiated have the right to show that there has been
a split in the original political party and they form one-third of the Members
of the legislature of that party, or that the party has merged with another
political party and hence paragraph 2 is not attracted. On the scheme of
G Articles 102 and 191 and the Tenth Schedule, the determination of the question
of split or merger cannot be divorced from the motion before the Speaker
seeking a disqualification of a member or members concerned. It is therefore
not possible to accede to the argument that under the Tenth Schedule to the
Constitution, the Speaker has an independent power to decide that there has
H been a split or merger of a political party as contemplated by paragraphs 3
SRI RAJENDRA SINGH RANA r. SWAMI PRASADMAURYA [BALASUBRAMANYAN,J.] 613

and 4 of the Tenth Schedule to the Constitution. The power to recognise a A
separate group in Parliament or Assembly may rest with the Speaker on the
basis of the Rules of Business of the House. But that is different from saying
that the power is available to him under the Tenth Schedule to the Constitution
independent of a claim being determined by him that a member or a number
of members had incurred disqualification by defection. To that extent, the B
decision of the Speaker in the case on hand cannot be considered to be an
order in terms of the Tenth Schedule to the Constitution. The Speaker has
failed to decide the question, he was called upon to decide, by postponing
a decision thereon. There is therefore some merit in the contention of the
learned counsel for the B.S.P. that the order of the Speaker may not enjoy the
full immunity in terms of paragraph 6(1) of the Tenth Schedule to the C
Constitution and that even if it did, the power of judicial review recognised
in the court in Kihoto Hollohan (supra) is sufficient to warrant interference
with the order in question.

26. In a sense, this aspect may not be of a great importance in this case
since going by the stand adopted on behalf of the 37 M.L.As., the Speaker D
was justified in kedping the petition seeking disqualification of 13 M.L.As.
pending, even while he proceeded to accept a case of split in the B.S.P. The
question really is whether the Speaker was justified in doing so. As we have
indicated above, the whole proceeding under the Tenth Schedule to the
Constitution is initiated or gets initiated as a part of disqualification of a E
member of the House. That disqualification is by way of defection. The rules
prescribed by various legislatures including the U.P. legislature contemplate
the making of an application to the Speaker when there is a complaint that
some member or members have voluntarily given up his membership or their
memberships in the party. It is only then that in terms of the Tenth Schedule,
the Speaker is called upon to decide the question of disqualification raised F
before him in the context of paragraph 6 of the Tenth Schedule. Independent
of a claim that someone has to be disqualified, the scheme of the Tenth
Schedule or the rules made thereunder, do not contemplate the Speaker
embarking upon an independent enquiry as to whether there has been a split
in a political party or there has been a merger. Therefore, in the context of G
Articles 102 and 191 and the scheme of the Tenth Schedule to the Constitution,
we have no hesitation in holding that the Speaker acts under the Tenth
/
Schedule only on a claim of disqualification being made before him in terms
of paragraph 2 of the Tenth Schedule.

27. The Speaker, as clarified in Kihoto Hollohan (supra), has necessarily H
614 SUPREME COURT REPORTS [2007) 2 S.C.R.

A to decide that question of disqualification as a Tribunal. In the context of
such a claim against a member to disqualify him, that member, in addition to
a plea that he had not voluntarily given up his membership of the Party or
defied the whip issued to him, has also the right to show that there was a
split in the original political party that other legislators have also come out
of the legislature party as a consequence of that split, that they together
B constituted one-third of the total number of legislators elected on the tickets
of that party. He has also the right to take up a plea that there has been a
merger of his party with another party in terms of paragraph 4 of the Tenth
Schedule. Call it a defence or whatever, a claim under paragraph 3 as it existed
prior to its. deletion or under paragraph 4 of the Tenth Schedule, are really
C answers to a prayer for disqualifying the member from the legislature on the
ground of defection. Therefore, in a case where a Speaker is moved by a
legislature party or the leader of a legislature party to declare certain persons
disqualified on the ground that they have defected, it is certainly open to
them to plead that they are not guilty of defection in view of the fact that
there has been a split in the original political party and they constitute the
D requisite number of legislators or that there has been a merger. In that context,
the Speaker cannot say that he will first decide whether there has been a split
or merger as an authority and thereafter decide the question whether
disqualification has been incurred by the members, by way of a judicial
adjudication sitting as a Tribunal. It is part and parcel of his jurisdiction as
E a Tribunal while considering a claim for disqualification of a member or
members to decide that question not only in the context of the plea raised
by the complainant but also in the context of the pleas raised by those who
are sought to be disqualified that they have not incurred disqualification in
view of a split in the party or in view of a merger.

F 28. The 'decision of a Full Bench of the Punjab & Haryana High Court
in Prakash Si~gh Badal v. Union of India & Ors., A.LR. 1987 Punjab &
Haryana 263 was relied upon to contend that the Speaker gets jurisdiction to
render a decision in terms of the Tenth Schedule to the Constitution of India
· only when in terms of paragraph 6 thereof a question of disqualification arose
G before him. The Full Bench by a majority held:
"Undbr, para. 6, the Speaker would have the jurisdiction in this matter
only if any question arises as to whether a member of the House has
become subject to disqualification under the said Schedule and the
same has been referred to him for decision. The purpose of requirement
H of a reference obviously is that even when a question as to the
SRI RAJENDRA SINGH RANA t'. SWAMI PRASAD MAURYA [BALASUBRAMANYAN, J.] 6 J 5

disqualification of a member arises, the Speaker is debarred from A
taking suo motu cognizance and he would be seized of the matter only
when the question is referred to him by any interested person. The
Speaker has not been clothed with a suo motu power for the obvious
reason that he is supposed to be a non-party man and has been
entrusted with the jurisdiction to act judicially and decide the dispute
between the conflicting groups. The other prerequisite for invoking B
the jurisdiction of the Speaker under para. 6 is the existence of a
_J question of disqualification of the some member. Such a question can
" arise only in one way, viz., that any member is alleged to have incurred
the disqualification enumerated in para 2( 1) and some interested person
approaches the Speaker for declaring that the said member is c
disqualified from being member of the House and the claim is refuted
by the member concerned."

It was argued on behalf of the 37 M.L.As. that this position adopted by the
Full Bench does not reflect the correct position in h1w since there is nothing
in the Tenth Schedule which precludes the Speaker from rendering an D
-" adjudication either in respect of a claim under paragraph 3 of the Schedule
or paragraph 4 of the Schedule, independent of any question arising before
J
him in terms of paragraph 2 of the Schedule. Considering the scheme of the
Tenth Schedule in the context of Articles 102 and 191 of the Constitution and
the wording of paragraph 6 and the conferment of jurisdiction on the Speaker
thereunder, we are inclined to the view that the position adopted by the
E
majority of the High Court of Punjab & Haryana in the above decision as to
the scope of the Tenth Schedule, reflects the correct legal position. Under the
Tenth Schedule, the Speaker is not expected to simply entertain a claim under
paragraphs 3 and 4 of the Schedule without first acquiring jurisdiction to
(
I decide a question of disqualification in terms of paragraph 6 of the Schedule. F
The power if any, he may otherwise exercise independently to recognise a
group or a merger, cannot be traced to the Tenth Schedule to the Constitution.
The power under the Tenth Schedule to do so accrues only when he is called
upon to decide the question referred to in paragraph 6 of that Schedule.

29. In the case on hand, the Speaker had a petition moved before him G
..... for disqualification of 13 members of the B.S.P. When that application was
pending before him, certain members of B.S.P. had made a claim before him
that there has been a split in B.S.P. The Speaker, on the scheme of the Tenth
Schedule and the rules framed in that behalf, had to decide the application
for disqualification made and while deciding the same, had to decide whether
H
616 SUPREME COURT REPORTS [2007] 2 S.C.R.

A in view of paragraph 3 of the Tenth Schedule, the claim of disqualification has
to be rejected. We have no doubt that the Speaker had totally misdirected
himself in purporting to answer the claim of the 37 M.L.As. that there has
been a split in the party even while leaving open the question of disqualification
raised· before him by way of an application that was already pending before
B him. This failure on the part of the Speaker to decide the application seeking
a disqualification cannot be said to be merely in the realm of procedure. It
goes against the very constitutional scheme of adjudication contemplated by
the Tenth Schedule read in the context of Articles 102 and 191 of the
Constitution. It also goes against the rules framed in that behalf and the
procedure that he was expected to follow. It is therefore not possible to accept
C the argument on behalf of the 37 M.L.As. that the failure of the Speaker to
decide the petition for disqualification at least simultaneously with the petition
for recognition of a split filed by them, is a mere procedural irregularity. We
have no hesitation in finding that the same is a jurisdictional illegality, an
illegality that goes to the root of the so called decision by the Speaker on
the question of split put forward before him. Even within the parameters of
D judicial review laid down in Kihoto Hallahan (supra) and in Jagjit Singh v.
State of Haryana, (2006) 13 SCALE 335 it has to be found that the decision
of the Speaker impugned is liable to be set aside in exercise of the power of
judicial review.

E 30. There is another aspect. The Speaker, after he kept the determination
of the question of disqualification pending, passed an order that the said
petition will be dealt with after the High Court had taken a decision on the
Writ Petition pending before it and directed that the said petition be taken up
after the Writ Petition was disposed of. Then, suddenly, without any apparent
reason, the Speaker took up that application even while the Writ Petition was
F pending and dismissed the same on 7.9.2005 by purporting to accept a so )

called preliminary objection raised by the 13 M.L.As. sought to be disqualified,
to the effect that his recognition of the split of the 37 M.L.As. including
themselves, has put an end to that application. This last order is clearly
inconsistent with the Speaker's earlier order dated 14.11.2003 and still leaves
G open the question whether the petition seeking disqualification should not
have been decided first or at least simultaneously with the application claiming
recognition of a split. If the order recognising the split goes, obviously this
last order also cannot survive. It has perforce to go.

31. Considerable arguments were addressed on the scope of paragraph
H 2 and paragraph 3 of the Tenth Schedule with particular reference to the point
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA [BALASUBRAMANYAN,l .] 617

of time that must be considered to be relevant. Whereas it was argued on A
behalf of leader of B.S.P. that the liability or disability is incurred at the point
of voluntarily giving up the membership of the political party, according to
the 37 M.L.As. who left, the relevant point of time is the time when the
Speaker takes a decision on the plea for disqualification. As a corollary to the
above, the contention on the one side is that if on the day the disqualification B
is incurred there has been no split in terms of paragraph 3, those disqualified
who had given up their membership of the party must be declared disqualified,
the argument on the other side is that if by the time the Speaker takes the
decision, the persons sought to be disqualified are able to show that there
-{ has been a split in the original party and by that time they have a strength
of one third of the Legislature party, the Speaker will have necessarily to C
accept the split and reject the petition for disqualification. In other words,
. according to this argument all developments until the point of decision by the
Speaker are to be taken note of by him, while deciding the question of
disqualification. They canvas the acceptance of what the learned Chief Justice
of the High Court has called the snowballing effect of persons severing their
connections with the original party and joining the quitters subsequently and D
not confining the decision to the point of their alleged severing their
->. connection with'the original party.

32. It is argued on behalf of 37 MLAs that the disqualification on the
ground of defection should not be held as a sword of Damocles against E
honest political dissent and the prevention of honest political dissent is not
the object sought to be achieved by the Tenth Schedule. This submission is
sought to be supported by the argument that at the relevant time paragraph
3 provided that if on the basis of a split in the original party one third of the
members of the Legislature party have voluntarily give up their membership
of the original political party, they could not be disqualified. The relevant F
observations in Kihoto Hollohan (supra) are referred to. It is also pointed out
that paragraph 4 which Is still retained, also contemplates leaving of one's
own party by merging of that party with another political palfy though by
definition, that may also amount to defection in terms of paragraph 2.

33. It may be true that collective dissent is not intended to be stifled G
by the enactment of sub-article (2) of Articles 102 and 191 of the Tenth
Schedule. But at the same time, it is clear that the object is to discourage
defection which has assumed menacing proportions undermining the very
basis of democracy. Therefore, a purposive interpretation of paragraph 2 in
juxtaposition with paragraphs 3 and 4 of the Tenth Schedule is called for. One H
618 SUPREME COURT REPORTS [2007] 2 S.C.R.

A thing is clear that defection is a ground for disqualifying a member from the
House. He incurs that disqualification if he has voluntarily given up his
membership of his original political party, meaning the party on whose ticket
he had got elected himself to the House. In the case of defiance of a whip,
the party concerned is given an option either of condoning the defiance or
B seeking disqualification of the member concerned. But, the decision to condone
must be taken within 15 days of the defiance of the whip. This aspect is also
relied on for the contention that the relevant point of time to determine the
question is when the Speaker actually takes a decision on the plea for
disqualification.

C 34. As we see it, the act of disqualification occurs on a member voluntarily
giving up his membership of a political party or at the point of defiance of
the whip issued to him. Therefore, the act that constitutes disqualification in
terms of paragraph 2 of the Tenth Schedule is the act of giving up or defiance
of the whip. The fact that a decision in that regard may be taken in the case
of voluntary giving up by the Speaker at a subsequent point of time cannot
D and does not postpone the incurring of disqualification by the act of the /
Legislator. Similarly, the fact that the party could condone the defiance of a
whip within 15 days or that the Speaker takes the decision only thereafter in
those cases, cannot also pitch the time of disqualification as anything other
than the point at which the whip is defied. Therefore in the background of
E the object sought to be achieved by the Fifty Second Amendment of the
Constituti.on and on a true understanding of paragraph 2 of the Tenth Schedule,
with reference to the other paragraphs of the Tenth Schedule, the position
that emerges is that the Speaker has to decide the question of disqualification
with reference to the date on which the member voluntarily gives up his
membership or defies the whip. It is really a decision ex post facto. The fact
F that in terms of paragraph 6 a decision on the question has to be taken by
the Speaker or the Chairman, cannot lead to a conclusion that the question
has to be determined only with reference to the date of the decision of the
Speaker. An interpretation of that nature would leave the disqualification to
an indeterminate point of time and to the whims of the decision making
G authority. The same would defeat the very object of enacting the law. Such
an interpretation should be avoided to the extent possible. We are, therefore,
of the view that the contention that only on a decision of the Speaker that
the disqualification is incurred, cannot be accepted. This would mean that
what the learned Chief Justice has called the snowballing effect, will also have
to be ignored and the question will have to be decided with reference to the
H date on which the membership of the Legislature party is alleged to have been
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA [BALASUBRAMANYAN, J.] 6J9
voluntarily given up. A
35. In the case on hand, the question would, therefore be whether on
27.3.2003 the 13 members who met the Governor with the request to invite the
leader of the Samajwadi Party to form the Government had defected, on
27 .8.2003 and whether they have established their claim that on 26.8.2003
there had been a split in the Bahujan Samaj Party and one third of the B
members of the Legislature of that party had come out of that party. It may
be noted that the clear and repeated plea in the counter affidavit to the writ
petition is that a split had occurred on 26.8.2003. This was also the stand of
the petitioner before the Speaker for recognition of a split. The position as
on 6.9.2003 when the 37 MLAs presented themselves before the Speaker C
would not have relevance on the question of disqualification which had
allegedly been incurred on 27.8.2003.

36. The question whether for satisfying the requirements of paragraph
3, it was enough to make a claim of split in the original political party or it
was necessary to at least prima facie establish it, fell to be considered in the D
decision in Jagjit Singh v. State of Haryana (supra) rendered by a Bench of
three Judges to which one of us, (Balasubramanyan, J.) was a party. Dealing
with an argument that a claim of split in the original political party alone is
sufficient in addition to showing that one-third of the members of the legislature
Party had formed a separate group, the learned Chief Justice has explained
the position as follows: E
"Learned counsel for the petitioner, however, relies upon paragraph 37
in Ravi S. Naik 's case in support of the submission that only a claim
as to split has to be made and it is not necessary to prove the split.
The said observations are:
F
'In the present case the first requirement was satisfied because
Naik has made such a claim. The only question is whether the
second requirement was fulfilled.'
The observations relied upon are required to be appreciated in the
light of what is stated in the next paragraph, i.e., paragraph 38, namely: G
'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.'

Apart from the above, the acceptance of the contention that only
claim is to be made to satisfy the requirements of paragraph 3 can lead H
620 SUPREME COURT REPORTS [2007) 2 S.C.R.

A to, absurd consequences besides the elementary principle that whoever
makes a claim has to establish it. It will also mean that when a claim
as to split is made by a member before the speaker so as to take
benefit of paragraph 3, the Speaker, without being satisfied even prima
fa~ie about the genuineness and bonafides of the claim, has to accept
it. It will also mean that even by raising a frivolous claim of split of
B original political party, a member can be said to have satisfied this
stipulation of paragraph 3. The acceptance of such broad proposition
would defeat the object of defection law, namely, to deal with the evil
of political defection sternly. We are of the view that for the purposes
of paragraph 3, mere making of claim is not sufficient. The prima facie
c proof of such a split is necessary to be produced before the Speaker
so as to satisfy him that such a split has taken place."

37. Thus, in the above decision, it has been clarified that it is not
enough that a claim is made of a split in the original party, in addition to
showing that one third of the members of the Legislature Party have come
D out of the party, but it is necessary to prove it at least prima facie. Those who
have left the party, will have, prima facie, to show by relevant materials that
there ha~ been a split in the original party. The argument, therefore, that all
that the 37 MLAs were required to do was to make a claim before the Speaker
that there has been a split in the original party and to show that one .third
E of the members of the Legislature party have come out and that they need·
not produce any material in support of the split in the original political party,
cannot be .accepted. The argument that the ratio of the decision in Jagj it
Singh (supra) requires to be reconsidered does not appeal to us. Even going
by Ravi S. Naik (supra) it could not be said that the learned Judges have held
that a mere claim in that behalf is enough. As pointed out in Jagj it Singh
F (supra) the sentence in paragraph 37 in Ravi S. Naik 's case (supra) cannot ·
be read in isolation and it has to be read along with the relevant sentence
in paragraph 38 quoted in Jagjit Singh (supra).
l
38. Acceptance of the argument that the legislators are wearing two
hats, one as members of the original political party and the other as members
G of the legislature and it would be sufficient to show that one third of the
legislators have formed a separate group to infer a split or to postulate a split
in the original party, would militate against the specific terms of paragraph 3.
That paragraph speaks of two requirements, one, a split in the original party
and two, a group comprising of one third of the legislators separating from
H the legislatUre party. By acceding to the two hat theory one of the limbs of
SIU RAJENDRASINGHRANA r. SWAMI PRASAD MAURYA [BALASUBRAMANYAN, J.] 62 J

paragraph 3 would be made redundant or otios. An interpretation of that A
nature has to be avoided to the extent possible. _Such an interpretation is· not
warranted by the context. It is also not permissible to assume that the
Parliament has used words that are redundant or meaningless. We, therefore,
overrule the plea that a split in the original political party need not separately
be established if a split in the legislature party is shown.
B
39. On the side of the 37 M.L.As., the scope of judicial review being
limited was repeatedly stressed to contend that the majority of the High Court
had exceeded its jurisdiction. Dealing with the ambit of judicial review of an
order of the Speaker under the Tenth Schedule, it was held in Kihata Hallahan
~~ c
"In the present case, the power to decide disputed disqualification
under Paragraph 6(1) is preeminently of a judicial complexion.

39. The fiction in Paragraph 6(2), indeed, places it in the first clause
of Article 122 or 212, as the case may be. The words "proceedings in
Parliament" or "proceedings in the legislature of a State" in Paragraph D
6(2) have their corresponding expression in Articles 122(1) and 212(1)
respectively. This attracts an immunity from mere irregularities of
procedures.

That apart, even after 1986 when the Tenth Schedule was introduced, E
the Constitution did not evince any intention to invoke Article 122 or
212 in the conduct of resolution of disputes as to the disqualification
of members under Articles 191(1) and 102(1). 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 F
decision of the House, nor is it subject to the approval by the House.
The decision operates independently of the House. A deeming
provision cannot by its creation transcend its own power. There is,
therefore, no inununity under Articles 122 and 212 from judicial scrutiny
of the decision of the Speaker or Chairman exercising power under G
Paragraph 6(1) of the Tenth Schedule."

After referring to the relevant aspects, it was held:

"By these well-known and accepted tests of what constitute a Tribunal,
the Speaker or the Chairman, acting under paragraph 6( 1) of the Tenth
Schedule is a Tribunal." H
622 SUPREME COURT REPORTS [2007] 2 S.C.R.

A It was concluded:

"In the light of the decisions referred to above and the nature of
function that is exercised by the Speaker/Chairman under paragraph
6, the scope of judicial review under Articles 136, and 226 and 227 of
the Constitution in respect of an order passed by the Speaker/Chairman
B under paragraph 6 would be confined to jurisdictional errors only viz.,
infirmities based on violation of constitutional mandate, mala tides,
non-compliance with rules of natural justice and perversity."

The position was reiterated by the Constitution Bench in Raja Ram Pal v. The
Hon'ble Speaker, Lok Sabha & Ors., JT (2007) 2 SC I. We are of the view
C that contours of interference have been well drawn by Kihoto Hol/ohan
(supra) and what is involved here is only its application.

40. Coming to the case on hand, it is clear that the Speaker, in the
original order, left the question of disqualification undecided. Thereby he has
D failed to exercise the jurisdiction conferred on him by paragraph 6 of the Tenth
Schedule. Such a failure to exercise jurisdiction cannot be held to be covered
by the shield of paragraph 6 of the Schedule. He has also proceeded to accept
the case of a split based merely on a claim in that behalf. He has entered no
finding whether a split in the original political party was prima facie proved
or not. This action of his, is apparently based on his understanding of the
E ratio of the decision in Ravi S. Naik 's case (supra). He has misunderstood the
ratio therein. Now that we have approved the reasoning and the approach in
Jagjit Singh 's case and the ratio therein is clear, it has to be held that the
Speaker has committed an error that goes to the root of the matter or an error
that is so fundamental, that even under a limited judicial review the order of
the Speaker has to be interfered with. We have, therefore, no hesitation in
F agreeing with the majority of the High Court in quashing the decisions of the
).
Speaker.

41. In view of our conclusions as above, nothing turns on the arguments
urged on what were described as significant facts and on the alleged
G belatedness of ~he amendment to the Writ Petition. It is undisputable that in
the order that was originally subjected to challenge in the Writ Petition, the
Speaker specifically refrained from deciding the petition seeking disqualification
of the 13 M.L.As. On our reasoning as above, clearly, there was an error
which attracted the jurisdiction of the High Court in exercise of its power of
judicial review. ,
H
SRI RAJENDRA SINGH RANA 1•. SWAMI PRASAD MAURYA [BALASUBRAMANYAN,J.] 623

42. The question then is whether it was necessary for the majority of A
-<:' the Division Bench of the High Cou·rt to remand the proceeding to the
Speaker or a decision could have been taken whether the 13 members stand
disqualified or not and if they are found to be disqualified, the balance 24 of
the 37 would also stand disqualified, since in that case, there will be no one
third of the Legislature party forming a separate group as claimed by them.
It is contended on behalf of the Bahujan Samaj Party that there is absolutely
B
no material to show that there was any meeting of the party on 26.8.2003 as
claimed by the 37 members and it has not been shown that there was any
convention of the original political party or any decision taken therein to split
·- '( the party or to leave the party by some of the members of that party. It is
also pointed out that no agenda of the alleged meeting or minutes of the c
alleged meeting is produced. No other material is also produced. Even prior
to 6.9.2003, when the claim of split before the Speaker was made and 26.8.2003,
when the split is claimed to have occurred, the 24 members of the 37, had sat
with the Bahujan Samaj Party in the Legislative Assembly and that itself
would show that there had been no split on 27.8.2003 as now claimed. It is
also pointed out that on 2.9.2003, the day of the convening of the Assembly, D
the 13 members of the B.S.P. who had met the Governor on 27.8.2003, had sat
_.I
with members of the Samajwadi Party in the Assembly and an objection was
raised to it. The Speaker got over the situation by saying that the only
f business on the agenda that day was obituary references and the question
need not be raised that day. It is, therefore, contended that on the facts, it E
is crystal clear that the 13 members sought to be disqualified had defected
and the defection is manifest by their meeting the Governor on 27.8.2003
requesting him to call upon the leader of the Samajwadi Party to form the
Government.

43. As against these submissions, it is contended that it was for the F
Speaker to take a decision in the first instance and this Court should not
~ substitute its decision for that of the Speaker. It is submitted that the High
Court was therefore justified in remitting the matter to the Speaker, in case this
Court did not agree with the 37 MLAs that the decision of the Speaker did
not call for interference.
G
44. Normally, this Court might not proceed to take a decision for the first
time when the authority concerned has not taken a decision in the eyes of
,J.
law and this Court would normally remit the matter to the authority for taking
a proper decision in accordance with law and the decision this Court itself
takes on the relevant aspects. What is urged on behalf of the Bahujan Samaj H
624 SUPREME COURT REPORTS [2007] 2 S.C.R.

A Party is that these 37 MLAs except a few have all been made ministers and
if they are guilty of defection with reference to the date of defection, they
have been holding office without authority, in defiance of democratic principles
and in such a situation, this Court must take a decision on the question of.
disqualification immediately. It is also submitted that the term of the Assembly
is coming to an end and an expeditious decision by this Court is warranted·
B for protection of the constitutional scheme and constitutional values. We find
considerabie force in this submission.

45. Here, the alleged act of disqualification of the 13 MLAs took place
on 27.8.2003 when they met the Governor and requested him to call the leader
C of the opposition to form the Government. The petition seeking disqualification
of these 13 members based on that action of theirs has been allowed to drag
on till now. It is not necessary for us to consider or comment on who was
responsible for such delay. But the fact remains that the term of the Legislative
Assembly that was constituted after the elections in February 2002, is coming
to an end on the expiry of five years. A remand of the proceeding to the
D Speaker or our affirming the order of remand passed by the High Court, would
mean that the proceeding itself may become infructuous. We may notice that
the question of interpretation of the Tenth Schedule and the question of
disqualification earlier raised in regard to me1nbers of the prior assembly of
this very State, which led to the difference of opinion between two of the
E learned Judges of this Court and which stood referred to a Constitution
Bench, was, disposed of on the ground that it had become infructuous in
view of the expiry of the term of the Assembly. Paragraph 3 of the Tenth
Schedule has also been deleted by the Parliament, though for the purpose of
this case, the scope of that paragraph is involved. Considering that if the 13
members are found to be disqualified, their continuance in the Assembly even
F for a day would be illegal and unconstitutional and their holding office as
ministers would also be illegal at least after the expiry of six months from the
date of their .taking charge of the offices of Ministers, we think that as a Court
bound to protect the Constitution and its values and the principles of
democracy which is a basic feature of the Constitution, this Court has to take
G a decision one way or the other on the question of disqualification of the 13
MLAs based on their action on 27.8.2003 and on the materials available.

46. The main thrust of the argument on the side of the 13 MLAs
included in the 37 MLAs, has been that it was enough if a claim of a split
in the original political party had been made and it was not necessary to
H establish any such split and it was enough for them to show that 37 of them
625

-
SRI RAJENDRASINGHRANA 1•. SWAMI PRASADMAURYA [BALASUBFAMANYAN, !.]

had signed the petition filed before the Speaker on 6.9.2003. We have held A
on an interpretation of paragraph 3 and in approval of the ratio in Jagjit Singh
(supra) that the 37 MLAs which includes the 13 MLAs in question had to
establish a split in the original political party, here BSP, before they can get
the protection offered by paragraph 3. The question is whether they have
proved at least prima facie any such split.
B
47. The first act on the part of the 13 MLAs which is relevant is the
, -~ giving of letters by them to the Governor, the contents of which we have
quoted earlier in paragraph 16. Therein, there is no claim that there was a split
in the Legislature Party on 26.8.2003 as was put forward in the representation
on 6.9.2003 by 37 members. It is interesting to note that in the counter-
affidavit to the writ petition filed by Rajendra Singh Rana who can be described
c
as the leader of the 13 (for that matter of the 37), it has been repeatedly
asserted that on 26.8.2003 a new party called Lok Tantrik Bahujan Dal was
formed. Therefore, this was a case in which the theory of snow balling
adverted to by the learned Chief Justice in the Judgment under appeal had
no relevance. The issue was, whether on 26.8.2003 there had been a split in D
...I the original political party, the BSP and whether by that split, 37 of the MLAs
of that Legislature Party had come out of that party. As rightly pointed out
-J
by learned counsel for BSP, no material is produced either to show that a
meeting of the members of BSP was convened on 26.8.2003 or that a meeting
took place at Darulshafa in which a split in the original political party occurred.
On the other hand, the letters given to the Governor on 27.8.2003 by the 13
E
members sought to be disqualified, is totally silent on any such split in the
original political party or on a new party being formed by certain members of
the original political party. This is followed by the fact that on 2.9.2003 only
the members who had met the Governor, sat with the members of the Sarnajwadi
i Party abandoning their seats with BSP in the Assembly and the other 24, F
which made up the 37, remained in their seats along with the BSP. Moreover,
no notice of a proposed meeting of the party on 26.8.2003, or evidence of any
announcement of such a proposed meeting is produced. No agenda of any
such meeting is also produced. No minutes evidencing any decision to split
the party taken at such a meeting, is also produced. These relevant aspects
clearly demonstrate that the story of a split in the original political party put
G
,J_ forward in the letter dated. 6.9 .2003 was only an afterthought. Even before us,
no material was referred to, to suggest or establish that there was a split on
26.8.2003 and the formation of a Lok Tantril Dal as claimed in the counter
affidavit to the writ petition. The attempt was only to argue that we must leave
the decision to the Speaker in the first instance and that the challenge to the H
626 SUPREME COURT REPORTS [2007) 2 S.C.R.

A meeting on 26.8.2003 was only raised belatedly in the writ petition. On a
scrutiny of the pleadings in the original writ petition, we cannot also agree
with that latter submission.

48; The act of giving a letter requesting the Governor to call upon the
leader of the other side to form a Government, itself would amount to an act
B of voluntarily giving up the membership of the party on whose ticket the said
members had got elected. Be it noted that on 26.8.2003, the leader of their
party had recommended to the Governor, a dissolution of the Assembly. The
first eight were accompanied by Shivpal Singh Yadav, the General Secretary
of the Samajwadi Party. In Ravi Naik (supra) this Court observed:
c "A person may voluntarily give up his membership of an original
political party even though he has not tendered his resignation from
the membership of that party. Even in the absence of a formal
resignation from the membership, an inference can be drawn from the
conduct of a member that he has voluntarily given up his membership
D of the political party to which he belongs."

49. Clearly, from the conduct of meeting the Governor accompanied by
the Genera! Secretary of the Samajwadi Party, the party in opposition and the
submission of letters requesting the Governor to invite the leader of that
opposition party to form a Government as against the advise of the Chief
E Minister belonging to their original party to dissolve the assembly, an
irresistible inference arises that the 13 members have clearly given up their
membership of the BSP. No further evidence or enquiry is needed to find that
their action comes within paragraph 2(1)(a) of the Tenth Schedule. Then the
only question is whether they had shown at least prima fa~ie that a split had
F occurred in the original political party on 26.8.2003 and they had separated
from it along with at least 24 others, so as to make up one-third of the
legislature party.

50. The learned Chief Justice who declined to interfere with the decision
of the Speaker on his interpretation of paragraphs 2 and 3 of the Tenth
G Schedule to the Constitution with which we have disagreed, himself stated:
"As per the dicta in the case of Naik, reported [1994] Suppl. 2 SCC
641, the going of the 13 MLAs to the Governor on 27.8.2003 is a
conduct which leads to the inference that they had voluntarily given
up their membership of the Bahujan Dal. They asked the governor to
H call the leader of the main opposing party, to be requested to
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA [BALASUBRAMANYAN, J.] 627

~
demonstrate his strength. In paragraph 11 in Naik's case, it is said that A
an inference can be drawn from the conduct of a member that he was
voluntarily given up his membership. That inference has to be drawn
in regard to the conduct of 27.08.2003 most certainly."

He has also observed while considering whether the Speaker had to consider
paragraph 2 of the Tenth Schedule first or he is to consider paragraph 3 first. B
"The order of consideration will yield diametrically opposite results.
Even, in this case, ifhe had considered paragraph 2 first, he might well
t -c have had to disqualify all 37, as they did not walk away at one and
the same time. But because he considered paragraph 3 first, because
he though as a matter of law that the requirements of paragraph 3 c
being satisfied, it obviated the necessity of considering paragraph 2
separately for any part of the whole group, he gave a decision for the
respondents."

The learned Chief Justice has further held:
D
"Even if 37 out of 109 Bahujan MLAs have walked out, only the
_.\
legislature party is split. This is defined in paragraph I (b ), which has
been set out earlier; but in this <.:ase of ours, where is the proof before
i the Speaker of the split in the original party? Were any minutes
tendered before the Speaker showing that so many lacs or millions of
the original Bahujan Dal decided to split? A claim that on 26.08.2003,
E
there were some party members along with the MLAs at the Darulshafa
· in Lucknow is not enough; it is too inadequate. The Bahujan Dal is
too big; its party membership is too numerous for it to suffer a split
in such a comparatively minor meeting, even if it took place on
26.8.2003. There was no intimation that one group was going to split; F
i even the name Loktantrik Bahujan Dal found its place for the first time
on paper on 6.9.2003; there were no Newspaper reports; there were no
statements of dissatisfied party members; the core of the Bahujan Dal
was not asked to "rectify" its behaviour or else. The threat of a split
was not even made imminent; nothing like this happened; only one
evening, it is claimed, the Bahujan Dal had split and a faction had G
arisen. This is so cursory as not to class as a split in the original party
_,...,_,
at all. Look at the split in Congress-0, which resulted in Congress-I
coming into being; Looking at the split in Congress-I in West Bengal
and the resulting Trinamul Congress coming into being, was there
anything like that here? The answer is a big no." H
-+
\

628 SUPREME COURT REPORTS [2007] 2 S.C.R.

A 5 I. One of the learned Judges who constitutes the majority has held:

.," ..... but the court cannot certainly close its eyes to the fact that had
the application for disqualification dated 4.9.2003 been treated with
the same promptitude and constitutionally required urgency, the 13
MLAs whose Membership in question was hanging in the balance
B ,could not have been counted along with 24 others, who joined hands
to conjure up the minimum required member.. .. "

52. As we have indicated, nothing is produced to show that there was
a split in the original political party on 26.8.2003 as belatedly put forward or
put forward at a later point of time. But still, the plea was of a split on
C 26.8.2003. On the materials, the only possible inference in the circumstances
of the case, is that it has not been proved, even prima facie, by the MLAs
sought to be disqualified that there was any split in the original political party
on 26.8.2003 as claimed by them. The necessary consequence would be that
the 24 members, who later joined the 13, could not also establish a split in
D the original political party as having taken place on 26.8.2003. In fact even a
split involving 37 MLAs on 26.8.2003 is not established. That was also the
inference rightly drawn by the learned Chief Justice in the judgment appealed
against.

53. In view of our conclusion that it is necessary not only to show that
E 37 MLAs had separated but it is also necessary to show that there was a split
in the original political party, the above finding necessarily leads to the
conclusion that the 13 MLAs sought to be disqualified had not established
a defence or answer to the charge of defection under paragraph 2 on the basis
of paragraph 3 of t~e Tenth Schedule. The 13 MLAs, therefore, stand
F disqualified with effect from 27.8.2003. The very giving of a letter to the
Goveinor requesting him to call the leader of the opposition party to form a
Government by them itself would amount to their voluntarily giving up the
membership of their original political party within the meaning of paragraph
2 of the Tenth Schedule. If so, the conclusion is irresistible that the 13
members of BSP who met the Governor on 27.8.2003 who are respondent
G Nos.2,3,4,5,6,9,10, 14, 16, 19,20,21 and.37, in the writ petition filed by Maurya,
stand disqualified in terms of Article 191 (2) of the Constitution read with
paragraph 2 of the Tenth Schedule thereof, with effect from 27.8.2003. If so,
the appeal filed by the writ petitioner has to be allowed even while dismissing
the appeals filed by the 37 MLAs, by modifying the decision of the majority
of the Division Bench. Hence the writ petition filed in the High Court, will
H
SRI RAJENDRA SINGH RANA v. SWAMI PRASAD MAURYA [BALASUBRAMANYAN, J.] 629

stand allowed with a declaration that the J3 members who met the Governor A
on 27.8.2003, being respondent numbers 2, 3, 4, 5, 6, 9, JO, 14, 16, 19, 20, 21
and 37 in the writ petition, stand disqualified from the Uttar Pradesh Legislative
Assembly with effect from 27.8.2003.

54. The appeals filed by the 37 MLAs are dismissed and the appeal filed
by the writ petitioner is allowed in the above manner. The disqualified members B
will pay the costs of the writ petitioner, here and in the High Court.

RP. C.A. No. 769/2007 allowed.

C.A. 765, 766,767,768 of2007 and C.A. No. 770, 771 of2007 dismissed.