AMAR SINGHversusUNION OF INDIA

                   [2010] 13 (ADDL.) S.C.R. 792


A                          AMAR SINGH
                                  V.
                          UNION OF INDIA
                 (Writ Petition (c) No. 317 of 2010)
                       NOVEMBER 15, 2010
B
         [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.)

        CONSTITUTION OF /NOIA, 1950

c        Tenth Schedule - Paragraph 2(1) (a) - Explanation (a)
    - Disqualification on ground of defection - Members of
    Parliament - Expelled from the party which set them up in
    election - Issues as regards status of such expelled members,
    applicability of the provisions of the Tenth Schedule to such
    members, view taken in G. Vishwanathan's case in this regard
0
    and allied issues - Held: Require re-consideration by a larger
    bench - Matter, accordingly, referred to larger bench.

       Two prominent political leaders and Members of
  Parliament - one of the Rajya Sabha. and the other of the
E Lok Sabha - who were expelled by the political party
  which had set them up as candidates for election, filed
  the instant writ petitions apprehending imminent threat
  to their continuance as Members of Parliament in view of
  the decision of the Supreme Court in G. Viswanathan's
F case*.

       It was contended for the petitioners that the decision
  rendered in G. Viswanathan's case had highly prejudicial
  consequences for persons expelled from the
G membership of a political party which was not the
  intention of the legislators, as was clear from the debates
  in respect of the Bill and, therefore, the said case
  required a revisitation of the law.

        Referring the matter to the larger Bench, the Court:
H                              792
          AMAR SINGH v. UNION OF INDIA                   793

    HELD:                                                       A

     1.1 In the back ground of the legislative history of the
introduction of the Tenth Schedule in the Constitution of
India, in which it was initially intended to include expelled
Members within the ambit of the provisions relating to          8
disqualification, the same was dropped after the debate
in Parliament in which the dangerous effects of the
inclusion of such a sub-clause were pointed out by many
of the Members in the House. If it was the intention of the
legislature not to include expelled members of a political      C
party within the category of persons who voluntarily
resigned from the membership of their parties, the same
could not have been imported into the Tenth Schedule
by virtue of the judicial pronouncement in the said case.
In fact, what was sought to be excluded by the legislature
has now been introduced into the Tenth Schedule by              D
virtue of the decision in G. Vishwanathan's case. [Para
15] (801-A-D]

    G. Viswanathan vs. Hon'ble Speaker Tamil Nadu
Legislative Assembly, Madras & Anr. ((1996) 2 SCC 353 -         E
referred to.

     1.2 The decision in G. Viswanathan's case merits
another look as far as the Members of the House who are
expelled from their p_arties on whose banner they had
                                                                F
been elected to the House, are concerned, as they would
be left completely vulnerable to the whims and fancies of
the leaders of their parties. [Para 16] (801-D-E]

    1.3 Therefore, the writ petitions be placed before the
Chief Justice of India to refer the matter to a larger Bench    G
on the following questions :-

    "1. What is the status in either House of Parliament
    or the State Legislatures of a Member who is
    expelled from the party which set him/her up as a
                                                                H
    794    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A         candidate for election?

          2. Will the provisions of the Tenth Schedule to the
          Constitution apply to such Member?

          3. Was the view taken in G. Viswanathan's case [
B         (1996) 2 sec 353], with regard to the status of
          Members in either House of Parliament who had not
          voluntarily resigned from their party but had been
          expelled therefrom, in harmony with the provisions
          of the Tenth Schedule to the Constitution?
c
          4. In view of the fact that Members of the two Houses
          of Parliament who are expelled from the membership
          of the parties which had set them up as candidates
          in the election, are not referred to in the Tenth
D         Schedule to the Constitution, was the decision in G.
          Viswanathan's case that they must be deemed to
          continue to belong to such party in view of
          Explanation(a) to paragraph2(1) of the Tenth
          Schedule, a correct interpretation of the said
          provisions, having regard to the parliamentary
E
          debates on the Bill which became the Tenth
          Schedule?

          5. Can Explanation (a) to paragraph 2(1) of the Tenth
          Schedule to the Constitution be extended t.o include
F         Members of the two Houses of Parliament who are
          expelled from their parties?

          6. When a member of either House of Parliament is
          expelled by the party which had set him up as a
G         candidate for election and he either joins another
          political party or forms his own party, can it be said
          that he had voluntarily given up his membership of
          the party in view, of the legal fiction created by
          Explanation (a) to paragraph 2 (1) of the Tenth
          Schedule?
H
          AMAR SINGH v. UNION OF INDIA                     795

    7. What is the status of an "unattached" Member in            A
    either House of Parliament or in the State
    Legislatures?" [para 16] [801-E-H; 802-A-E]

     1.4. Pending the reference, the decision in G.
Viswanathan's case shall not be applied to the two writ
                                                                  8
petitioners. [para 17] [802-F-G]

                      Case Law Reference:

    [(1996) 2 sec 353          referred to            para 5

    CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil\ No.       C
317 of 2010.

     Under Article 32 of the Constitution of India.
                                               '
                             WITH
                                                                  D
W.P. (C) No. 343 of 2010.

    G.E. Vahanvati, A.G., K.K. Venugopal, Harish N. Salve,
Pravin H. Parekh, Rohit M. Alex, P.S. Sudheer, Pradeep Rai,
Rahul Chugh, Indira Ramesh, Rishi Maheshwari, Rohit Alex,         E
Ranjeeta Rohtagi, Arijit Prasad for the appearing parties.

    The Judgment of the Court was delivered by

     ALTAMAS KABIR, J. 1. These two writ petitions have
been taken up together to consider whether Rule should be         F
issued as identical issues have been raised in both the matters
and identical relief has also been sought for.

     2. Both the writ petitioners were formerly members of the
Samajwadi Party, of which Shri Mulayam Singh Yadav is the         G
President. While Shri Amar Singh was one of the senior-most
members of the party and had also held the post of All India
General Secretary and was its National Spokesperson and had
also been a Member of the Rajya Sabha for three terms, Ms.
Jaya Pradha is also a prominent political leader who was
                                                                  H
                   -
   796    SUPREME COURT REPORTS [2010) 13 (ADDL.) S.C.R.


A elected to the Lok Sabha from the State of Uttar Pradesh and
  was elected for a Second Term to the Lok Sabha as a Member
  of the Samajwadi Party. Earlier, she had also been a Member
  of the Rajya Sabha from the said party.

      3. In addition to the above, Shri Amar Singh is also a
B member of four different Parliamentary Committees and Ms.
  Jaya Pradha is a member of one such Committee.

       4. The case made out by Shri Amar Singh is that on
  account of medical reasons and other personal difficulties he
C was constrained to resign from the posts of General Secretary
  and National Spokesman of the Samajwadi Party on 6th
  January, 2010. He, however, continued to be a member of the
  party till he was expelled therefrom on 2nd February, 2010.
  Thereafter, he was treated as an Independent Member of
o Parliament (MP) which will be evident from a glance at the
  alphabetical list of Members of the Rajya Sabha maintained by
  Parliament, produced on Shri Amar Singh's behalf.

       5. The common case of both the writ petitioners is that they
  have had to approach this Court under Article 32 of the
E Constitution in view of the imminent threat to their continuance
  as Members of Parliament, both Rajya Sabha and Lok Sabha,
  in view of the decision of this Court in the case of G.
  Viswanathan vs. Hon'ble Speaker Tamil Nadu Legislative
  Assembly, Madras & Anr. [(1996) 2 SCC 353].
F
       6. In the said case this Court was called upon to consider,
  inter alia, the effect of paragraph 2(1 )(a) and Explanation (a)
  thereto in the Tenth Schedule to the Constitution of India with
  regard to members of political parties who are expelled
G therefrom and have not voluntarily given up their membership
  of such political party. What also fell for consideration is
  Explanation (a) which provides that for the purposes of
  paragraph 2(1) an elected Member of a House shall be
  deemed to belong to the political party, if any, by which he was
H set up as a candidate for election as such Member.
           AMAR SINGH v. UNION OF INDIA                       797
               [ALTAMAS KABIR, J.]
      7. In considering the said question, this Court held that in   A
view of the Explanation to Paragraph 2(1 )of the Tenth Schedule,
even if a member is expelled from his party, for the purposes
of the Tenth Schedule, he/she would not cease to be a member
of the political party that had set him up as a candidate for the
election and he would continue to remain attached to that            B
political party even if he is treated as "unattached".

     8. This Court, inter alia, held that when a person who has
been thrown out or expelled from the party which set up him as
a candidate and was ultimately elected, joins another party, it      C
would certainly amount to his voluntary abandonment of the
membership of the political party which had set him up as a
candidate for election as such Member. It was held that if he,
on his own volition, joined another political party, he must be
taken to have acquired the membership of the other political
party by abandoning the political party to which he belonged         D
or must be deemed to have belonged under the Explanation
to Paragraph 2(1) of the Tenth Schedule.

      9. It was further held that Paragraph (1 )(b) of the Tenth
Schedule cannot be read in isolation and had to be read with         E
Paragraphs 2, 3 and 4 thereof. It was also observed that
Paragraph 2(1) read with the Explanation clearly pointed out
that an elected Member would 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 the fact that he had      F
been thrown out or expelled from that party. It was explained
that that was a matter between the Member and his party and
had nothing to do so far as the deeming clause in the Tenth
Schedule is concerned. In other words, the action of a political
party in relation to its member has no significance and cannot       G
impinge on the fiction of law under the Tenth Schedule. This
Court went on further to hold that labeling of a Member as
"unattached" finds no place nor has any recognition in the Tenth
Schedule and the classification of the Members in the Tenth
Schedule proceeds only on the manner of their entry into the
                                                                     H
    798    SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R.


A House, namely, (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
B (3) one who has been nominated. It was also held that it is
  impermissible to invent a new category or clause other than the
  one envisaged or provided in the Tenth Schedule of the
  Constitution. In that view of the matter, this Court came to the
  conclusion that the deeming fiction indicated in Explanation (a)
c to Paragraph (2) of the Tenth Schedule has to be given full effect
  as otherwise the expelled Member would escape the rigour of
  the law which was intended to curb the evil of defections which
  has polluted our democratic polity.

        10. Mr. Harish N. Salve, learned Senior Advocate
D appearing for Shri Amar Singh, urged that it was not the
  legislative intent to bring persons, who are expelled from their
  political party, within the ambit of the Tenth Schedule and that
  the same would be evident from the parliamentary debates
  which followed the tabling of the Bill, which ultimately resulted
E in the introduction of the Tenth Schedule in the Constitution. Mr.
  Salve referred to the Parliamentary Debates relating to the
  Constitution (52nd Amendment) Bill, 1985, by which the Tenth
  Schedule was introduced in the Constitution. In the Draft Bill,
  besides Clauses (a) and (b) to Paragraph (1) of the Tent~ -
F Schedule, Clause {c) had also been included, which reads as
  follows:

          "{c) if he has been expelled from such political party in
          accordance with the procedure established by the
          Constitution, rules or regulations of such political party."
G
       11. Mr. Salve submitted that the said clause was the
  subject matter of heated debate when the Bill was tabled in the
  Parliament and moved by the then Law Minister, Mr. Ashok
  Sen. In fact, Mr. Sen in his speech, while introducing the Bill,
H omitted the said clause from the Bill which later on became the
           AMAR SINGH v. UNiUN OF INDIA                      799
               [ALTA.MAS KABIR, J.]
Tenth Schedule to the Constitution. Mr. Salve drew our attention     A
to the statement made by Shri Shar::td Dighe, who, while
supporting the Bill, objected to the inclusion of Clause 2(1 )(c)
in the Bill in the following terms:

    "Now, there:: have been several clauses in this Bill and I am
                                                                     B
    happy that the Law Minister has also announced that two
    of the clauses are to be amended. As far as clause 2 sub-
    clause (1) paragraph (C) is concerned, that has to be
    deleted and paragraph (b) has to be amended suitably. It
    was very much necessary to delete paragraph (c) because
    if a Member has to be expelled from a political party in         C
    accordance with the procedure for anything done outside
    the House, it would have created several practical
    problems and it would have given a handle especially to
    the bosses of similar parties; where this paragraph would
     have created some difficulties. Therefore, the main             D
    principle of this disqualification is that for something which
    a Member does in this House, in the presence of the
    Presiding Officer such as voting against the Party or
    abstaining from voting against the direction of the Party.
     Now this is something which is proved beyond doubt. No          E
    other enquiry is by any other committee or anybody else.
    So it is very clear that any act done by a member in the
    presence of a Presiding Officer, namely, voting or
    abstaining from voting would entail him to this
    disqualification, So there is no chance or any injustice         F
    being done nor is there any scope for any doubt whether
    he has committed that act or not. Therefore, from that point
    of view, acts done outside the House have been deleted
    or are proposed to be deleted now because there would
    have been the question of proving them. So~e doubt may           G
    arise and there will be questions of giving a hearing to that
    member also and rules of natural justice would have also
    to be followed."

     12. Mr. Salve urged that in G. Viswanathan's case (supra)
the introduction of the Bill comprising the Constitution Fifty-      H
    800   SUPREME COURT REPORTS [2010] 13 (ADDL.) S.C.R


A  second Amendment which led to the introduction of the Tenth
   Schedule in the Constitution, was probably not considered
  ·since the intention of including clause (c) in paragraph 2 of the
   Tenth Schedule was subsequently dropped. In G. Viswanathan's
   case (supra), in order to give a status in tl1e House to Members
B expelled from their parties, the Court treated such Members at
   par with those who had voluntarily resigned their membership
   from such party by applying the provisions of the Explanation
   to paragraph 2(1) of the Tenth Schedule, which, in fact, was not
   the intention of the legislature. Submitting that the decision
c rendered in G. Viswanathan's case (supra) had highly
   prejudicial consequences for persons expelled from the
   membership of a politic<!I party, which was not the intention of
   the legislature, and had been so expressed in the debates in
   respect of the Bill, Mr. Salve contended that the decision in the
   said case required a re-visitation of the law. Mr. Salve also
0
   urged that the consequences of what had been propounded in
   G. Viswanathan's case (supra) would have dangerous portents
   if a Member, properly elected by the voters of a particular
   constituency, could be deprived of his membership of the
   House merely on the whims and fancies of the leaders of his
E party even though he may not have voluntarily resigned from the
   party which would then have attracted the provisions of
   paragraph 2(1 )(a) of the Tenth Schedule to the Constitution.

       13. Mr. K.K. Venugopal, learned Senior Advocate, who
F appeared for Ms. Jaya Pradha, while adopting and reiterating
  the submissions of Mr. Salve, submitted that on account of the
  decision in G. Viswanathan's case (supra), even an expelled
  Member stood exposed to the party whip in the House, if he
  was to be deemed to be, for all practical purposes, a member
G of the said party which had expelled him, in the House.

        14. We had requested the learned Attorney Genera: to
  assist the Court in the matter and he has also concurred with
  the submissions made on behalf of the writ petitioners that the
  decision in G. Viswanathan's case (supra) required a second
H look.
           AMAR SINGH v. UNION OF INDIA                      801
               [ALTAMAS KABIR, J.]
     15. We are also convinced that in the background of the        A
legislative history of the introduction of the Tenth Schedule in
the Constitution, in which it was initially intended to include
expelled Members within the ambit of the provisions relating
to disqualification, the same was dropped after the debate in
Parliament in which the dangerous effects of the inclusion of       B
such a sub-clause were pointed out by many of the Members
in the House. If it was the intention of the legislature not to
include expelled members of a political party within the
category of persons who could be clubbed with the category
of persons who voluntarily resigned from membership of their        c
parties, the same could not have been imported into the Tenth
Schedule by virtue of the judicial pronouncement in the said
case. In fact, what was sought to be excluded by the legislature
has now been introduced into the Tenth Schedule by virtue of
the said decision.                                                  D
     16. We are also convinced that the decision in G.
Viswanathan's case (supra) merits another look as far as the
Members of the House who are expelled from their parties on
whose banner they had been elected to the House, are
concerned, as they would be left completely vulnerable to the       E
whims and fancies of the leaders of their parties. We, therefore,
issue Rule in the two Writ Petitions and request Hon'ble the
Chief Justice of India to refer the matter to a larger Bench on
the following questions :-
                                                                    F
    1. What is the status in either House of Parliament or the
    State Legislatures of a Member who is expelled from the
    party which set him/ her up as a candidate for election ?

    2. Will the provisions of the Tenth Schedule to the
    Constitution apply to such Member ?                             G

    3. Was the view taken in G. Viswanathan's case [(1996)
    2 SCC 353], with regard to the status of Members in either
    House of Parliament who had not voluntarily resigned from
    their party but had been expelled therefrom, in harmony         H
    802        SUPREME COURT REPORTS (2010] 13 (ADDL.) S.C.R.


A          with the provisions of the Tenth Schedule to the Constitution
           ?
           4. In view of the fact that Members of the two Houses of
           Parliament, who are expelled from the membership of the
           parties which had set them up as candidates in the
B
           election, are not referred to in the Tenth Schedule to the
           Constitution, was the decision in G. Viswanathan's case
           that they must be deemed to continue to belong to such
           party in view of Explanation (a) to paragraph 2(1) of the
           Tenth Schedule, a correct interpretation of the said
c          provisions, having regard to the Parliamentary debates on
           the Bill which became the Tenth Schedule     1
           5. Can Explanation (a) to paragraph 2(1) of the Tenth
           Schedule to the Constitution be extended to include
D          Members of the two Houses of Parliament who are
           expelled from their parties?

           6. When a Member of either House of Parliament is
           expelled by the party which had set him up as a candidate
           for election and he either joins another political party or
E
           forms his own party, can it be said that he had voluntarily
           given up his membership of the party in view of the legal
           fiction created by Explanation (a) to paragraph 2 (1) of the
           Tenth Schedule ?

F          7. What is the status of an "unattached" Member in either
           House of Parliament or in the State Legislatures ?

           17. Pending the reference, the decision in G.
  Viswanathan's case (Supra) shall not be applied to the two writ
G petitioners, Shri Amar Singh and Ms. Jaya Pradha.

         18. Let the records of the two writ petitions be transmitted
    to the Secretariat of Hon'ble the Chief Justice immediately.

    R.P.                              Matter referred to larger Bench.
H