Holding

An expelled member who joins another party is deemed to have voluntarily given up his original party membership and is disqualified under paragraph 2(a) of the Tenth Schedule; the ‘unattached’ classification has no recognition in the Schedule.

Summary

Two members of the Tamil Nadu Legislative Assembly, elected in 1991 as AIADMK candidates, were expelled from the party and labelled ‘unattached’ by the Speaker. They later joined the Marumalarchi Dravida Munnetra Kazhagam (MDMK). The Speaker, invoking the Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986 and Article 191(2) read with paragraph 2(a) of the Tenth Schedule, disqualified them for voluntarily giving up their original party membership. The High Court upheld the disqualification. On appeal, the Supreme Court held that the explanation to paragraph 2(1) of the Tenth Schedule creates a deeming fiction: an expelled member who joins another party is deemed to have voluntarily relinquished his original party membership and is therefore disqualified. The label ‘unattached’ has no standing under the Tenth Schedule. Consequently, the Speaker’s order stands and the appeals are dismissed.

Issues considered

Whether a member expelled from his original political party and subsequently joining another party is disqualified under paragraph 2(a) of the Tenth Schedule of the Constitution.
Whether the ‘unattached’ label given by the Speaker has any effect on the applicability of the Tenth Schedule.
Whether the deeming provision in the explanation to paragraph 2(1) of the Tenth Schedule must be given full effect.

Legislation cited

Constitution of Indias. Article 190, s. Article 191, s. Tenth Schedule
Tamil Nadu Assembly (Disqualification on Ground of Defections) Rules, 1986s. Section 7

Subjects

defectiondisqualificationTenth Scheduledeeming provisionunattached memberlegislative assemblypolitical partyvoluntary relinquishmentanti-defection law

Judgment

{

G. YISHWANATHAN ETC. A
v.
THE HON'BLE SPEAKER TAMIL NADU LEGISLATIVE
ASSEMBLY, MADRAS AND ANR.

JANUARY 24, 1996
B
[AM. AHMADI, CJ! AND K.S. PARIPOORNAN, J.]

Constitution of India, 1950 : Articles 190(3)(a) and 191(2)-Tenth
Schedule-Para 2(1)(a) read with Expla11atio11-illte1pretation of
c
Tamil Nadu Assembly (Disqualification on Ground of Defections
Rules, 1986 :

Legislative Asscmbly-Member--Disqualification-Expulsion of mem-
ber for anti party activities-Speaker's order decla1ing hint 'unattached'-
Member joining another party-Held such a member has given his member- D
shi11 volwztari(v--Held disqualified under provisions of Tenth Schedule--
Labelling of 11ie111ber as unattached has no recognition under Tenth Schedule.

Defection-Disqualification-Expression 'voluntarily given up his
membership'-Scope of-Held action of giving up p01ty membe1'hip may be E
express or in1plied.

Legal ficti01t-Deeming provision-Competence of Legislature to
enact-Held deeming fiction must be given full effect to.

The question in these appeals is whether a member of 8, House, F
•. 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 appellants con-
tested election as official candidates of the All India Dravida Muonetra
Khazhagam party and were elected as members or the Tamil Nadu Legis- G
... Iative Assembly in the general elections held in 1991. Both or them were
expelled from the All India Dravida Munnetra KJiazhagam party for their
anti-party activities. By his order dated March 16, 1994 the Speaker
declared both of them as 'unattached' members or the Assembly. On
March 6, 1;95 the Secretary Legislative Assembly issued a notice to both
the appellants under section 7 of the Tamil Nadu Assembly (Disqualifica- H
895
896 SUPREME COURT REPORTS (1996] 1 S.C.R.

A tion on Ground of Defections) Rules, 1986 proposing to disqualify them
from the membership of the House on the ground that both the appellants
have joined another (new) party called Maru Malarchi Dravida Munnetra
Khazhagam. The appellants unsuccessfully assailed the validity of the said
notice before the High Court. Thereafter, the appellants tiled repre·
sentations before the Speaker of the Assembly, stating that they were
B "unattached members" of the Assembly and so the provisions of the Tenth
Schedule o!'the Constitution of India regarding disqualifications were not
applicable to them. The Speaker by its order dated April 20, 1995 held that
the appellants had incurred disqualification for being members of the ~
Tamil Nadu Legislative Assembly under Article 191(2) of the Constitution
C of India read with clause (a) of sub-para (1) of Paragrarh 2 of Tenth
Schedule and had consequently ceased to be members of the Assembly with
immediate effect. The High Court confirmed the conclusion of the Speaker
that the a11pellants have voluntarily given up their membership of the
political party that had set them up as candidates and have thereby
D 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.

In appeal to this Court it was contended for the appellants that (i)
Paragraph 2(a) of the Tenth Schedule of the Constitution comes into play
E only to disqualify a member who had voluntarily given up his membership
of the political party that had set him up as a candidate, and not when he
was expelled from the party and declared "unattached" i.e., not belonging
to any political party; (ii) paragraph 2(a) "ill apply only when a member
himself of his rmn volition gives up his membership of the party. Any
F 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 thro..u out will 'cease' to be a member of the party that set
him up as a candidate and even if he joins another party thereafier, it will
not be a case of 'voluntmily' giving up his membe1~hip of the political party
that had set him up as a candidate for the elections.
G
On behalf of the respondents it was contended that (i) the Tenth
Schedule of the Constitution should be interpreted strictly; (ii) though
expulsion by the political party that had set up a 1ierson as a candidate by
itself may not attract paragraph 2(1)(a), the further act of his joining
H another party amounts to 'voluntarily giving up' the membership of the
G. VISH\VAX ATH AX v. THE I ION'BLE SPEAKER T.N _LEGISLATIVE ASSEMBLY 897

political party that had set him up as a candidate; and (iii) the deeming A
provision contained in the Explanation to para 2(1) of Tenth Schedule
should be given full effect to.

Dismissing the appeals, this Court

HELD : I. The judgment of the High Court declining to interfere B
with the order of disqualification passed by the Speaker, Tamil Nadu
Legislative Assembly, calls for no interference. [909-G]

2. 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
c
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 given 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 D
. -r provisions. [906-D-F]

East End Dwelling Co. Ltd. v. Finsbury Borough Council, (1952) AC
109 = (1951) 2 All. E.R. 587; State of Bombay v. Pandurang, AIR (1953) SC
244 and M. Venugopal v. Divisional Ma1iager, [1994] 2 SCC 323, relied on.
E
3. 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 F
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 act of volun-
tarily giving up the membership of a political party may be either express G
or implied. When a person who has been thrown .out or expelled from the
party, which set him up as a 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. Therefore, the deeming fiction must be given full effect to
for otherwise the expelled member would escape the rigour of the law which H
898 SUPREME COURT REPORTS [1996] 1 S.C.R.

A was intended to curb the evil of defections which had polluted our
democratic polity. [907-C-E, 908-C]

Kihoto Hallahan v. Zachillhu and Ors., [1992) Supp. 2 SCC 651 and
Ravi S. Naik v. Union of India and Ors., [1994) Supp. 2 SCC 641, relied on.

B
4. Paragraph l(b) of the Tenth Schedule cannot be read in isolation.
It should be read along with paragraphs 2,3 and 4. Paragraph l(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
C 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(l)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
D 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. (908-E-H, 910-A)

E 5. The labelling of a member as 'unattached' finds no place nor has
any recognition in the Tenth Schedule. 1be classification of the members
in the Tenth Schedule proceeds only on the manner of their entry into the
House, (i) 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
F 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. 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
G 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 other-
wise, be 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 feet
H to be assumed under the Explanation to paragraph 2(1). Such an arran-
G. VISHWANATIIAN <.THE HON.BLESPEAKER T.N. LEGISLATIVE ASSEMBLY 899

gement and labelling has no legal bearing so far as the Tenth Schedule is A
concerned. [907-F-H, 908-A-B]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2269-70
of 1996 Etc.

From the Judgment and Order dated 29.9.95 of the Madras High B
Court in WA. No. 559 of 1995 and W.P. No. 6331 of 1995.

Shanti Bhushan, Mukul Mudgal, B.R. Manohar and Gopal Jain for
the Appellants.

. Soli J. Sorabjee, N. Jothi and K.K Mani for the Respondent No. 1.

Soli J. Sorabjee, A. Mariarputham, Ms. Aruna Mathur for
C

Aruputham Aruna & Co. for the Respondent No. 2.

The Judgment of the Court was delivered by
D
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 Arco! Legislative E
Assembly constituency whereas Mr. Azhagu Thirunavukkarasu was elected
from Orathanadu constituency. Both of them were expelled from
AIADMK party on 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 Assemb- . F
ly, 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. On March 6, 1995
the Secretary Legislative Assembly issued a notice under Section 7 of the G
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 Writ
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 dated March 10, 1995 dismissed the writ H
900 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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 peti-
B tions 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
I
only unattached members having been expelled from the party and •
did not join other political pmty, but as 011 today, they have joined
c some other political pmty. Be that as it may, in the light of the
judgment of the Supreme Court aforementioned, I am not inclined
to entertain these \Vrit petitions. 11

(Emphasis supplied)

D 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 disqualificati0ns 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
E 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 dete1mina-
F
tio11 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.
G
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
H Tenth Schedule or the relevant rules made by that Act.
G. VISHWANATHAN v. THE HON"BLESPEAKER T.N. LEG!SLATIVEASSEMBL Y [AH:v!ADI, CJ!] 9QJ.

D. That he had joined another political party, viz., Marumalarchi A
i.,
Dravida Munnetra Khazhagam."

Discm,ing 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
0
a political party and gets elected, he must be deemed always to belong to B
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-para-
• graph (l)(a). In the light of the admitted facts and in the view of law held
by him, particularly in view of the fact that the appellants had not denied c
in their explanation that they had joined a new party, the Speaker in
paragraph 20 of the said order, entered the following findings :

"l. 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.), D
_._
'
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,
E

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
F
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 G
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 H
902 SUPREME COURT REPORTS (1996] 1 S.C.R

A 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 injunc-
tion 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
B filed Writ Appeals Nos. 559 and 560 of 1995. A Division Bench of the High
Court noticing that the writ appeals 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
C 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 Counse~ for the appellants
and Mr. Soli J. Sorabjee, Senior Counsel, for the respondents. The main
D 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 politi-
cal 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
E 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 ~ill 'cease' to be a member of the party that set him up as a·candidate
and even if he joins another party thereafter, it will not be a case of
F '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
G candidate by itself may not attract paragraph 2(1)(a), the further act of his
joining another party amounts to 'voluntarily giving ui' 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
H joined another political party, the High Court was justified in confirming
G. VISHWANA 11-!AN >; THE HON.BLE SPEAKER T.N. LEGJSLAT!VEASSEMBLY /AHMADI, CTI] 903

the conclusion of the Speaker that the appellants had voluntarily given up A
\ 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 B
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) ······················· c
(2) ·······················
(3) If a member of a House of the Legislature of a State -

(a) becomes subject to any of the disqualifications mentioned in D
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
Council of a State -
E
(a) ·······················
(b) ...................... .
•
(c) ...................... .
F
(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 G
disqualified under the Tenth Schedule."

Tenth Schedule

"1. Interpretation. In this Schedule, unless the context otherwise
requires, ~ H
904 SUPREME COURT REPORTS [1996] 1 S.C.R.

A (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 para-
B graph 2 or paragraph 3 or, as the case may be, paragraph 4, means
the group consisting of all the 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,
c 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
D
provisions of paragraphs 3, 4 and 5, a member of a House belong-
ing 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
E party; or

(b) ...................... .

Explanation. For the purposes of this sub-paragraph, - ·~

(a) an elected member of a House shall be deemed to belong to
F
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 shal~ -

(i) where he is a member of any political party on the date of his
G
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
H member before the expiry of six months from the date on which
G. VISH\VANATHAN•·. THEHON'BLESPEAKER T.N. LEGISLATIVE ASSEMBLY [AHMADI, OIJ 905

he takes his seat after complying with the requirements of article A
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. B

(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 C
Ue, article 188."

The crucial point raised in these appeals centres round the inter-
pretation 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 D
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 E
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, Kiltata Hal-
lahan v. Zachillhu and Others, [1992] Supp. 2 SCC 651 (668). It is to the
following effect :
F
"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 in the Address by the President to Parliament that G
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 constitutionalicy of the above provisions was challenged, this
Court, after referring to paragraph 2, 3 and 4 of the Tenth Schedule of the H
906 SUPREME COURT REPORTS [1996] 1 S.C.R.

A Constitution stated in Kihoto Hallahan (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
B 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(l)(a) proceed 011 the premise that '"'-
political prop1iety a11d morality dema11d that if such a perso11, after
the electio11, changes his affiliatio11 and leaves the political party
c which had set him up as a candidate at the electio11, the11 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)

D 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
E
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
F particular word or to include matters which otherwise may or may not fall
within the main provision. The law laid down in this regard in East End
Dwelli11gs 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. Pa11dura11g, AIR (1953) SC 244 and ending with a recent
G decision of a three Judge Bench in M. Vem1gopal v. Divisional Ma11ager,
[1994] 2 SCC 323. N.P. singh, J., speaking for the Bench stated the law thus
at page 329 :

"The effect of a deeming clause is well-known. Legislature can
introduce a statutory fiC!ion and courts have to proceed on the
H assumption that such state of affairs exists on the relevant date. In
G. VISH\VANATHAN v. THEHON'BLESPEAKER T.N. LEGISLATIVE ASSEMBLY [AHMADl, 01] 907

this connection, one is often reminded of what was said by Lord A
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 "imagina-
B
tion to boggle" when it comes to the inevitably corollaries of that
state of affairs.TT

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 C
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 D
to that political party even if he is treated as 'unattached'. The further
question is when docs 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 a candidate and got elected, joins another (new) E
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 F
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 'inde- G
pendent' 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 and had set him up as a candidate, gets elected to the House H
908 SUPREME COURT REPORTS [1996] 1 S.C.R.

A 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
B
legal bearing so far as the Tenth Schedule is concerned. If the contention
urged on behalf of the appellant is accepted it will defeat the very purpose
for which the Tenth Schedule came to be introduced and would fail lo
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
C for otherwise the expelled member would escape the rigour 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 l(b) of the Tenth
D 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 lo 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 lhey be bound
by any whip given by that party, and so, they are unattached members who
E 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
l(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
F 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, para-
graphs 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
G 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
H no significance and cannot impinge on the fiction of law under under the
G. VISHWANATHAN v. 11-JE HON'BLE SPEAKER T.N. LEGISLATIVE ASSEMBLY [AHMADI, 01] 909

Tenth Schedule. We reject the plea solely based on clause l(b) of the Tenth A
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 Schedule of the Constitution was construed
B
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
1
given up his membership are not synonymous with 'resignation"
'
1 c
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 in-
ference can be drawn from the conduct of a member that he has D
voluntarily given up his membership of the political pany to which
0 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 have acquired the membership of
E

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. F

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 G
pay the costs in separate sets.

T.N.A. Appeals dismissed.