Full Judgment Text
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PETITIONER:
G. VISWANATHAN
Vs.
RESPONDENT:
THE HON’BLE SPEAKER TAMIL NADULEGISLATIVE ASSEMBLY, MADRAS &
DATE OF JUDGMENT: 24/01/1996
BENCH:
AHMADI A.M. (CJ)
BENCH:
AHMADI A.M. (CJ)
PARIPOORNAN, K.S.(J)
CITATION:
1996 AIR 1060 1996 SCC (2) 353
JT 1996 (1) 607 1996 SCALE (1)531
ACT:
HEADNOTE:
JUDGMENT:
A N D
CIVIL APPEAL NOS. 2271-72 OF 1996
(Arising out of SLP (Civil) Nos. 24585-24586 of 1995)
Azhagu Thirunavukkarasu
V.
The Hon’ble Speaker Tamil Nadu
Legislative Assembly, Madras & Another
J U D G M E N T
Ahmadi, CJI
Special leave granted.
The appellants are two members of the Tamil Nadu
Legislative Assembly elected in the general elections held
in 1991. Both of them were candidates set up by All India
Anna Dravida Munnetra Khazhagam (for short ‘AIADMK’). Mr.
Viswanathan was elected from Arcot Legislative Assembly
constituency whereas Mr. Azhaagu Thirunavukkarasu was
elected from Orathanadu constituency. Both of them were
expelled from Orathanadu constituency. Both of them were
expelled from AIADMK party of January 8, 1994. On March 16,
1994 the Speaker of Tamil Nadu Legislative Assembly (for
short ‘Assembly’) declared the two appellants as
‘unattached’ members of the Assembly. Enclosing certain
papers and other documents one Subburethinam, Member of the
Assembly, informed the Speaker that both the appellants have
joined another (new) party called Maru Malarchi Dravida
Munnetra Khazhagam (‘MDMK’ for short) and hence they should,
as per the provisions of law, be disqualified from the
membership of the Assembly issued a notice under Section 7
of the Tamil Nadu Assembly (Disqualification on Ground of
Defections) Rules, 1986, and called for the comments of the
appellants on the representation made by Subburethinam to
disqualify them. The appellants filed Write Petitions
Nos.3562 and 3563/95 in the High Court of Judicature at
Madras and assailed the said notice of the Secretary of the
Assembly, dated March 6, 1995. Sivaraj Patil, J. by order
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dated March 10, 1995 dismissed the writ petitions with the
following observations:
"Having regard to the law declared by
the Apex Court, I do not think it is
appropriate to entertain these writ
petitions. The Learned Senior Counsel
for the Petitioner submitted that on
similar questions this court has already
entertained two writ petitions by the
same petitioners in W.P. No. 5349 of
1994 and 5496 of 1994. When specifically
asked, the learned Senior Counsel fairly
submitted that as on the date when the
earlier writ petitions were filed the
petitioners were only unattached members
having been expelled from the party and
did not join other political party, but
as on today, they have joined some other
political party. Be that as it may, in
the light of the judgment of the Supreme
Court aforementioned, I am not inclined
to entertain these writ petitions."
(Emphasis supplied)
Thereafter, the appellants filed representations before
the Speaker, Tamil Nadu Legislative Assembly, stating they
were "unattached members" of the Assembly and so the
provisions of the Tenth Schedule of the Constitution of
India regarding disqualifications did not apply to them.
They also prayed that the preliminary question as to whether
the Tenth Schedule of the Constitution would apply to them,
they being unattached members, may be adjudicated in the
first instance. The Speaker considered the entire matter in
detail and disposed of the same by separate but similar
orders dated April 20, 1995. In paragraph 14 thereof, the
Speaker stated thus:
"14. The admitted relevant facts which
are necessary for determination of the
issues raised are as follows:-
A. That the Respondent contested as an
official candidate of All India Anna
Dravida Munnetra Khazhagam party from
(Arcot) Orathandu Constituency.
B. That he was expelled from All India
Anna Dravida Munnetra Khazhagam party
for anti-party activities.
C. That he had been declared as an
‘unattached’ member by a ruling dated
16.3.1994 as per the convention and not
as per the Tenth Schedule or the
relevant rules made by that Act.
D. That he had joined another
political party, viz., Marumalarchi
Dravida Munnetra Khazhagam."
Discussing the matter in detail, the Speaker construed,
paragraphs 2(1), 2(2) and Explanation (a) to sub-paragraph
(1) of paragraph 2 of the Tenth Schedule and held that if a
person is set up as a candidate for election by a political
party and gets elected, he must be deemed always to belong
to the same party from which he was elected and if he joins
another political party, it would amount to voluntarily
giving up his membership of such political party and will
become subject to disqualification under sub-paragraph
(1)(a). In the light of the admitted facts and the view of
law held by him, particularly in view of the fact that the
appellants had not denied in their explanation that they had
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joined a new party, the Speaker in paragraph 20 of the said
order, entered the following findings:
"1. that he got elected to the Tamil
Nadu Legislative Assembly as a candidate
set up by a political party (viz.) All
India Anna Dravida Munnetra Khazhagam
(A.I.A.D.M.K.),
2. that for the purpose of Tenth
Schedule, he shall be deemed to belong
to the Political Party, i.e., All India
Anna Dravida Munnetra Khazhagam
(A.I.A.D.M.K.) in accordance with the
explanatory note of Sub-para 2(1)(a),
though he had been expelled from that
party and declared as an ‘unattached’
member by me,
3. that he has joined another Political
Party, viz., Marumalarchi Dravida
Munnetra Khazhagam,
4. that he has not denied any of the
contents (sic) of the petitioner as
alleged in the petition, and
5. that he does not come under the
purview of the exception, envisaged in
Paragraph 3 and 4 of the tenth
Schedule."
It was held that the appellants had incurred
disqualification for being members of the Tamil Nadu
Legislative Assembly under Article 191(2) of the
Constitution of India read with clause (a) of sub-para (1)
of Paragraph 2 of Tenth Schedule and had ceased to be
members of the Assembly with immediate effect.
The appellants filed writ petitions Nos.6331 and
6332/95 and assailed the aforesaid order of the Speaker
dated 20th April, 1995. They also filed CMP Nos. 10261 and
10262/95, praying for the grant of ad interim injuction to
restrain the Speaker from giving effect to the aforesaid
order. Though initially an order of injunction was passed,
the learned Single Judge vacated the injunction by his order
dated April 26, 1995 and dismissed the CMPs. Aggrieved by
the orders vacating interim injunction, the appellants filed
Writ Appeals Nos.559 and 560 of 1995. A Division Bench of
the High Court noticing that the writ appellants and the
writ petitions raised the same issues, heard them together
and disposed them of by a common judgment dated September
29, 1995. The Division Bench saw no merit, whatsoever, in
the writ petitions and the writ appeals and dismissed them.
It is against the said common judgment of the High Court,
that the appellants have filed the present appeals by
special leave.
We heard Mr. Shanti Bhushan, Senior Counsel, for the
appellants and Mr. Soli J. Sorabjee, Senior Counsel, for the
respondents. The main thrust of the submissions made by
appellants’ Counsel was that Paragraph 2(a) of the Tenth
Schedule of the Constitution comes into play only to
disqualify a member who voluntarily gives up his membership
of the political party that had set him up as a candidate,
and not when he is expelled from the party and declared
"unattached" i.e., not belonging to any political party.
Paragraph 2(a) will apply only when a member himself of his
own volition gives up his membership of the party. Any
member thrown out or expelled from the party that had set
him up as a candidate, will not fall within the mischief of
paragraph 2 (a). By expulsion, the member thrown out will
‘cease’ to be a member of the party that set him up as a
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candidate and even if he joins another party thereafter, it
will not be a case of ‘voluntarily’ giving up his membership
of the political party that had set him up as a candidate
for the election. On the other hand, Counsel for the
respondents, Mr. Soli J. Sorabjee, submitted that the Tenth
Schedule of the Constitution should be interpreted strictly,
and keeping in view the mischief sought to be prevented by
enacting the law, it is evident that though expulsion by the
political party that had set up a person as a candidate by
itself may not attract paragraph 2(1)(a), the further act of
his joining another party amounts to ‘voluntarily giving up’
the membership of the political party that had set him up as
a candidate. Learned Counsel submitted that the deeming
provision contained in the explanation should be given full
effect and in the light of the finding that the appellants
had joined another political party, the High Court was
justified in confirming the conclusion of the Speaker that
the appellants had voluntarily given up their membership of
the political party that had set them up as candidates and
had thereby incurred the disqualification for being members
of the Assembly under Article 191(2) of the Constitution
read with clause (a) of sub-paragraph (1) of paragraph 2 of
the Tenth Schedule.
Before we proceed further, we may notice the relevant
provisions of the Constitution. Article 190 deals with
‘vacation of seats’ and Article 191 speaks of
‘Disqualifications for membership’. The relevant parts of
the said two articles with which we are concerned read as
under:
"190. (1) ................
(2) ................
(3) If a member of a House of
the Legislature of a State -
(a) becomes subject to any of the
disqualifications mentioned in clause
(1) of article 191; or
................."
"191. (1) A person shall be disqualified
for being chosen as, and for being, a
member of the Legislative Assembly or
Legislative Counsel of a State -
(a) .............
(b) .............
(c) .............
(d) .............
(e) if he is so disqualified by or under
any law made by Parliament -
(2) A person shall be disqualified for
being a member of the Legislative
Assembly or Legislative Council of a
State if he is so disqualified under the
Tenth Schedule."
Tenth Schedule
"1. Interpretation. In this Schedule,
unless the context otherwise requires, -
(a) "House" means either House of
Parliament or the Legislative Assembly
or, as the case may be, either House of
the Legislature of a State;
(b) "legislative party", in relation to
a member of a House belonging to any
political party in accordance with the
provisions of paragraph 2 or paragraph 3
or, as the case may be, paragraph 4,
means the group consisting of all the
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members of the House for the time being
belonging to that political party in
accordance with the said provisions;
(c) "original political party", in
relation to a member of a House, means
the political party to which he belongs
for the purposes of sub-paragraph (1) of
paragraph 2;
(d) "paragraph" means a paragraph of
this Schedule.
2. Disqualification on ground of
defection. (1) Subject to the provisions
of paragraphs 3, 4 and 5, a member of a
House belonging to any political party
shall be disqualified for being a member
of the House -
(a) if he has voluntarily given up his
membership of such political party; or
(b) ..........
Explanation. For the purposes of this
sub-paragraph, -
(a) an elected member of a House shall
be deemed to belong to the political
party, if any, by which he was set up as
a candidate for election as such member,
(b) a nominated member of a House shall,
(i) where he is a member of any
political party on the date of his
nomination as such member, be deemed to
belong to such political party;
(ii) in any other case, be deemed to
belong to the political party of which
he becomes, or, as the case may be,
first becomes, a member before the
expiry of six months from the date on
which he takes his seat after complying
with the requirements of article 99 or,
as the case may be, article 188.
(2) An elected member of a House who has
been elected as such otherwise than as a
candidate set up by any political party
shall be disqualified for being a member
of the House if he joins any political
party after such election.
(3) A nominated member of a House shall
be disqualified for being a member of
the House if he joins any political
party after the expiry of six months
from the date on which he takes his seat
after complying with the requirements of
article 99 or, as the case may be,
article 188."
The crucial point raised in these appeals centres round
the interpretation to be placed on paragraph 2(1)(a) read
with the explanation thereto of the Tenth Schedule. Does a
member of a House, belonging to a political party, become
disqualified as having voluntarily given up his membership
of such political party on his joining another political
party after his expulsion from the former?
The legislative background for enacting the law affords
a key for an understanding of the relevant provisions. What
impelled the Parliament to insert the Tenth Schedule can be
seen from the Statement of Objects and Reasons appended to
the Bill which ultimately resulted in the Constitution
(Fifty-Second Amendment) Act, 1985, quoted in the decision,
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Kihoto Hollohan v. Zachillhu and Others, 1992 Supp. (2) SCC
651 (668). It is to the following effect:
"The evil of political defections has
been a matter of national concern. If it
is not combated, it is likely to
undermine the very foundations of our
democracy and the principles which
sustain it. With this object, an
assurance was given in the Address by
the President to Parliament that the
government intended to introduce in the
current session of Parliament an anti-
defection Bill. This Bill is meant for
outlawing defection and fulfilling the
above assurance."
When the constitutionality of the above provisions was
challenged, this Court, after referring to paragraphs 2, 3
and 4 of the Tenth Schedule of the Constitution stated in
Kihoto Hollohan (supra), as under:
"These provisions in the Tenth Schedule
give recognition to the role of
political parties in the political
process. A political party goes before
the electorate with a particular
programme and it sets up candidates at
the election on the basis of such
programme. A person who gets elected as
a candidate set up by a political party
is so elected on the basis of the
programme of that political party. The
provisions of paragraph 2(1)(a) proceed
on the premise that political propriety
and morality demand that if such a
person, after the election, changes his
affiliation and leaves the political
party which had set him up as a
candidate at the election, then he
should give up his membership of the
legislature and go back before the
electorate. The same yardstick is
applied to a person who is elected as an
Independent candidate and wishes to join
a political party after the election."
(Emphasis supplied)
The scope of the legal fiction enacted in the
explanation (a) to paragraph (2)(1) of the Tenth Schedule
assumes importance in this context. By the decision of this
Court it is fairly well settled that a deeming provision is
an admission of the non-existence of the fact deemed. The
Legislature is competent to enact a deeming provision for
the purpose of assuming the existence of a fact which does
not even exist. It means that the Courts must assume that
such a state of affairs exists as real, and should imagine
as real the consequences and incidents which inevitably flow
therefrom, and give effect to the same.
The deeming provision may be intended to enlarge the
meaning of a particular word or to include matters which
otherwise may or may not fall within the main provision. the
law law laid down in this regard in East End Dwellings Co.
Ltd. case (1952 AC 109 + 1951 (2) All. E.R. 587) has been
followed by this Court in a number of cases, beginning from
State of Bombay v. Pandurang (AIR 1953 SC 244) and ending
with a recent decision of a three Judge Bench in M.
Venugopal v. Divisional Manager (1994 (2) SCC 323). N.P.
Singh, J., speaking for the Bench, stated the law thus at
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page 329:
"The effect of a deeming clause is well-
known. Legislature can introduce a
statutory fiction and courts have to
proceed on the assumption that such
state of affairs exists on the relevant
date. In this connection, one is often
reminded of what was said by Lord
Asquith in the case of East End
Dwellings Co. Ltd. V. Finsbury Borough
Council that when one is bidden to treat
an imaginary state of affairs as real,
he must surely, unless prohibited from
doing so, also imagine as real the
consequences and incidents which
inevitably have flowed from it - one
must not permit his "imagination to
boggle" when it comes to the inevitably
corollaries of that state of affairs."
It appears that since the explanation to paragraph 2(1)
of the Tenth Schedule provides that an elected member of a
House shall be deemed to belong to the political party, if
any, by which he was set up as a candidate for election as
such member, such person so set up as a candidate and
elected as a member, shall continue to belong to that party.
Even if such a member is thrown out or expelled from the
party, for the purposes of the Tenth Schedule he will not
cease to be a member of the political party that had set him
up as a candidate for the election. He will continue to
belong to that political party even if he is treated as
‘unattached’. The further question is when does a person
‘voluntarily give up’ his membership of such political
party, as provided in paragraph 2(1)(a)? The act of
voluntarily giving up the membership of the political party
may be either express or implied. When a person who has been
thrown out or expelled from the party which set him up as sa
candidate and got elected, joins another (new) party, it
will certainly amount to his voluntarily giving up the
membership of the political party which had set him up as a
candidate for election as such member.
We are of the view that labelling of a member as
‘unattached’ finds no place nor has any recognition in the
Tenth Schedule. It appears to us that the classification of
the members in the Tenth Schedule proceeds only on the
manner of their entry into the House, (1) one who has been
elected on his being set up by a political party as a
candidate for election as such member; (2) one who has been
elected as a member otherwise than as a candidate set up by
any political party - usually referred to as an
‘independent’ candidate in an election; and (3) one who has
been nominated. The categories mentioned are exhaustive. In
our view, it is impermissible to invent a new category or
clause other than the one envisaged or provided in the Tenth
Schedule of the Constitution. If a person belonging to a
political party that had set him up as a candidate, gets
elected to the House and thereafter joins another political
party for whatever reasons, either because of his expulsion
from the party or otherwise, he voluntarily gives up his
membership of the political party and incurs the
disqualification. Being treated as ‘unattached’ is a matter
of mere convenience outside the Tenth Schedule and does not
alter the fact to be assumed under the explanation to
paragraph 2(1). Such an arrangement and labelling has no
legal bearing so far as the Tenth Schedule is concerned. If
the contention urged on behalf of the appellant is accepted
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it will defeat the very purpose for which the Tenth Schedule
came to be introduced and would fail to suppress the
mischief, namely, breach of faith of the electorate. We are,
therefore, of the opinion that the deeming fiction must be
given full effect for otherwise the expelled member would
escape the rigor of the law which was intended to curb the
evil of defections which had polluted our democratic polity.
Mr. Shanti Bhushan laid stress on paragraph 1(b) of the
Tenth Schedule and contended that the Legislative Party in
relation to a member of a House belonging to any political
party means the group consisting of all the members of that
House for the time being belonging to that political party,
and so understood, the appellants who were thrown out or
expelled from the party, did not belong to that political
party nor will they be bound by any whip given by that
party, and so, they are unattached members who did not
belong to any political party, and in such a situation the
deeming provision in sub-paragraph (a) of the explanation to
paragraph 2(1) will not apply. We are afraid it is nothing
but begging the question. Paragraph 1(b) cannot be read in
isolation. It should be read along with paragraphs 2,3 and
4. Paragraph 1(b) in referring to the Legislative Party in
relation to a member of a House belonging to any political
party, refers to the provisions of paragraphs 2,3 and 4, as
the case may be, to mean the group consisting of all members
of that House for the time being belonging to that political
party in accordance with the said provisions, namely,
paragraphs 2,3 and 4, as the case may be. Paragraph 2(1)
read with the explanation clearly points out that an elected
member shall continue to belong to that political party by
which he was set up as a candidate for election as such
member. This is so notwithstanding that he was thrown out or
expelled from that party. That is a matter between the
member and his party and has nothing to do so far as deeming
clause in the Tenth Schedule is concerned. The action of a
political party qua its member has no significance and
cannot impinge on the fiction of law under the Tenth
Schedule. We reject the plea solely based on clause 1(b) of
the Tenth Schedule.
Our Attention was drawn to the decision of this Court
in Ravi S. Naik v. Union of India and Others, (1994) Supp.
(2) SCC 641. In the said decision, paragraph 2(1)(a) of the
Tenth S schedule of the Constitution was construed and it is
observed at page 649 thus:
"The said paragraph provides for
disqualification of a member of a House
belonging to a political party "if he
has voluntarily given up his membership
of such political party." The words
"voluntarily given up his membership"
are not synonymous with "resignation"
and have a wider connotation. A person
may voluntarily give up his membership
of a 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
membership an inference can be drawn
from the conduct of a member that he has
voluntarily given up his membership of
the political party to which he
belongs."
(Emphasis supplied)
If he of his own volition joins another political party, as
the appellants did in the present case, he must be taken to
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have acquired the membership of another political party by
abandoning the political party to which he belonged or must
be deemed to have belonged under the explanation to
paragraph 2(1) of the Tenth Schedule. Of course, courts
would insist on evidence which is positive, reliable and
unequivocal.
For the aforesaid reasons, We hold that the judgment of
the High Court declining to interfere with the order of the
disqualification passed by the Speaker, Tamil Nadu
Legislative Assembly, calls for no interference in these
appeals. The appeals are dismissed with costs. Each
appellant to pay the costs in separate sets.