Holding

The Speaker’s disqualification orders are valid; natural‑justice principles were not breached, no malafide was shown, and paragraph 3 does not shield single‑member parties, so the petitioners are disqualified under paragraph 2(2) of the Tenth Schedule.

Summary

The Supreme Court examined the disqualification of six independent MLAs and two lone party MLAs by the Haryana Assembly Speaker under the Tenth Schedule's anti‑defection provisions. The petitioners claimed violation of natural‑justice principles, alleged the Speaker acted malafide, and argued that paragraph 3 of the Tenth Schedule protected them as single‑member parties after a claimed split. The Court held that the Speaker, acting as a tribunal, had complied with natural‑justice requirements because the petitioners failed to utilise the opportunity to examine the electronic evidence and offered only vague denials. No malafide intent was established, and the test for an independent member joining a party is the loss of independent status, not formal registration. Paragraph 3 does not extend protection to a sole‑member legislature party, and the burden to prove a split lies on the member, which was not satisfied. Consequently, the disqualifications under paragraph 2(2) were upheld.

Issues considered

The denial of cross‑examination and opportunity to lead evidence violates principles of natural justice in disqualification proceedings.
Whether the Speaker acted with malafide intent in disqualifying the members.
Whether independent members who join a political party are disqualified under paragraph 2(2) of the Tenth Schedule.
Whether paragraph 3 of the Tenth Schedule protects a single‑member legislature party (i.e., a 100% split).
Who bears the burden of proof for establishing a split under paragraph 3.
The scope of judicial review of the Speaker’s disqualification orders.

Legislation cited

Constitution of Indias. Tenth Schedule para 2(2), s. Tenth Schedule para 3, s. Tenth Schedule para 6, s. Tenth Schedule para 8
General Clauses Act, 1897s. Section 13(2)
Haryana Legislative Assembly (Disqualification of Members on Ground of Defection) Rules, 1986s. Rule 7(7)

Subjects

anti‑defection lawTenth Schedulenatural justicespeaker as tribunaldisqualification of legislatorssplit clauseindependent MLAburden of proofjudicial reviewmalafide

Judgment

JAGllTSINGH A
v.
STATE OF HARYANA AND ORS.

DECEMBER 11, 2006

[Y.K. SABHARWAL, CJ., C.K. THAKKER AND B
P.K. BALASUBRAMANYAN, JJ.]

Constitution of India, 1950-Tenth Schedule Paras 2 (/) (a) and (2)
3 and 8-Members ofLegislative Assembly-Four were elected as independent C
members and two were sole members of their respective political parties-
Complaint of defection to another political party-Speaker of the assembly
relying on the statements of the members in electronic media, disqualified
them from membership of the Assembly-Members declined to watch the
recording in order to point out doctoring therein-Members sought permission
to cross-examine and lead evidence-Denial thereof-Orders of D
disqualification challenged on the ground of violation ofprinciples of Natural
Justice and malafide-Held: Jn the facts and circumstances of the case mere
denial to cross examine and adduce evidence may not automatically lead to
violation of principles of Natural Justice-On the facts plea of malafide not
acceptable-A member cannot be permitted to get away with defection on the E
ground of mere technicalities-Order of the speaker not illegal and
unreasonable-The independent members have incurred disqualification
under Para 2 (2)-To determine whether an independent member has joined
a political party the test is not whether he has fulfilled the formalities for
joining a politicalparty but that he has given up his independent status-
Protection of Para 3 is not applicable to a single member party-Burden to F
prove the requirement of Para 3 is on the member who seeks protection
thereunder-Members of political parties having failed to prove the split in
their respective parties, not entitled to protection under Para 3-Evidence-
Burden to prove-Haryana Legislative Assembly (Disqualification of Member
on ground of Defection) Rules, I 986.
G
Election Law-Defection Law-Object of-Discussed.

Evidence-Admission-Evidentiary value of-Held: Admission is best
evidence-Though conclusive it is decisive of the matter unless successfully

521 H
522 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R ..

A withdrawn or proved erroneous.
Judicial Review-Scope of-In cases of disqualification of members of
Legislative Assembly-Held: Speaker, while exercising power to disqualify
members acts as a Tribunal-Validity of such orders can be challenged on
the ground of ultra vires or malafide or having been made in colourable
B exercise ofpower based on extraneous and irrelevant consideration-But the
scope of judicial review in respect of such proceedings is limited-Order
would be a nullity if rules of natural justice are violated-Principles of
Natural Justice.

C Principle of Natural Justice-Right to hearing-Opportunity to cross
examine and adduce evidence denied-Denial of reasonable opportunity of
hearing alleged-Held: Principles of Natural Justice are flexible and have
to be examined in each case-They cannot be f1Xed in rigid mould-In the
present case in view of the conduct of the alleging parties, mere denial of
opportunity to cross examine or adduce evidence may not automatically lead
D to violation o principles of Natural Justice.

Interpretation of Statutes-It is ordinarily not the function of the court
to read word, in a statute-Court must proceed on the assumption that
legislature did not make a mistake and it intended to say what it said-
Constitution of India, I950-Tenth Schedule para 3 and 2 (/) (a).
E
Doctrines-Doctrine of necessity-Applicability of

Petitioners were elected to the State Assembly. Four petitioners ~ere
independent members and two were lone members representing their
respective political parties in the Assembly. Speaker of the Assembly
F disqualified them from the membership of the Assembly in exercise of its
power under the Tenth Schedule to the Constitution of India. All the petitioners
challenged the orders of disqualification on the ground of violation of principles
of natural justice; that impugned orders were result of malafide of the Speaker
as the disqualifications were made in utter haste with a view to deprive them
G of their right to vote in elections to Rajya Sabha in view of the fact that the
Speaker, on telephone had told that if they abstained from voting, their
disqualification could be avoided; that the speaker had no basis for coming to
the conclusion regarding their defection; and that the petitioners belonging
to the political parties were entitled to protection of Paragraph 3 of the Tenth
Schedule since there were splits in their original political parties and they
H being single member parties in the Assembly, having joined another party,
JAGJIT SINGH v. STATE OF HARY ANA 523
the stipulation that when more than one-third members join another party, A
there is a split, stood fulfilled, it being a case of hundred per cent members
joining another political party.

Dismissing the Writ Petitions, the Court

HELD: I. The Speaker, while exercising power to disqualify members, B
acts as a Tribunal and though validity of the orders, thus, passed can be
questioned in the writ jurisdiction of this Court or High Courts, the scope of
judicial review is limited. The orders can be challenged on the ground of ultra
vires or malajides or having been made in colourable exercise of power based
on extraneous and irrelevant considerations. The order would be a nullity if C
rules of natural justice are violated. (535-B-D]

Kihoto Hollohan v. Zachil/hu and Ors., (1992) supp 2. SCC 651, relied
on.

2.1. The Speaker, in law, was the only authority to decide whether the
petitioners incurred or not, disqualification under the Tenth Schedule to the D
Constitution in his capacity as Speaker. He had obviously opportunity to see
the petitioners and hear them and that is what has been stated by the Speaker
in his order. Speaker has not committed any illegality by stating that he had
on various occasions seen and heard these MLAs. It is not a case where the
Speaker could transfer the case to some other tribunal. The doctrine of E
necessity under these circumstances would also be applicable. No illegality
can be inferred merely on the Speaker relying upon his personal knowledge
of having seen and heard the petitioners for coming to the conclusion that
persons in the electronic evidence are the same as he has seen and so also
their voices. (548-A-C]
F
Dewan Singh v. Champat Singh and Ors., (1969) 3 SCC 447,
distinguished.

2.2. Undoubtedly, the Speaker has to comply with the principles of
natural justice and cannot pass an order on the basis of pre-determination
but in the present case, it cannot be held that the impugned order suffers G
from any such infirmity. It cannot be said that the petitioners were not given
a fair deal by the Speaker and principles of natural justice have been violated.
[553-A-B)

2.3. The requirement to comply with the principles of natural justice is H
also recognized in rules made by the Speaker in exercise of powers conferred
524 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A by paragraph 8 of the Tenth Schedule of the Constitution of India. The
Speaker, Haryana Legislative Assembly, made the Haryana Legislative
Assembly (Disqualification of Members on ground of Defection) Rules, 1986
in exercise of power conferred by paragraph 8 of the Tenth Schedule.
[535-D-F)

B 2.4. The question whether reasonable opportunity has been provided or
not cannot be put in a strait-jacket and would depend on the fact situation of
each case. While considering the plea of violation of principles of natural
justice, it is necessary to bear in mind that the proceedings, under the Tenth
Schedule, are not comparable to either a trial in a court oflaw or de.partmental
C proceedings for disciplinary action against an employee. But the proceedings
here are against an elected representative of the people and the judge holds
the .independent high office of a Speaker. The scope of judicial review in
respect of proceedings before such Tribunal is limited. Howsoever limited
may be the field of judicial review, the principles of natural justice have to be
complied with and in their absence, the orders would stand vitiated. The
D yardstick to judge the grievance that reasonable opportunity has not been
afforded would, however, be different Further, ifthe view taken by the Tribunal
is a reasonable one, the Court would decline to strike down an order on the
ground that another view is more reasonable. The Tribunal can draw an
inference from the conduct of a member, of course, depending upon the facts
E of the case and totality of the circumstances. [535-F-H; 536-A-C)

2.5. In the present case, petitioners filed their replies to the complaint
and were asked by the Speaker to watch the video recording and point out
doctoring thereof, if any. The petitioners failed to do so. The petitioners cannot
be permitted to sit on the fence, take vague pleas, make general denials in
p the proceedings before the Tribunal of the nature under cons.ideration. Under
these circumstances, mere denial of opportunity to cross-examine or adduce
evidence may not automatically lead to violation of principles of natural justice.
The principles of natural justice cannot be placed in such a rigid mould. The
principles of natural justice are flexible and have to be examined in each case.
[540-D-H)
G
National Textile Workers' Union and Ors. v. P.R. Ramakrishnan and Ors.,
(1983) l sec 228, distinguished.

Swadeshi Cotton Mills v. Union of India, [1981) 1 SCC 664; Ravi S.
Naik v. Union of India and Ors., [1994) Supp. 2 SCC 641; Kihoto Hollohan
H v. Zachillhu and Ors., f1992) Supp. 2 SCC 651; Mrs.Maneka Gandhi v. Union
JAGJITSINGHv. STATEOFHARYANA 525

oflndiaandAnr., (1978) 1 SCC248and Unionof/ndiaandAnr. v. Tulsiram A
Patel, (19851 3 SCC 398, referred to.

John v. Rees and Anr., [1969) 2 All E.R. pp. 307-309, referred to.

2.6. It is evident from the facts that the petitioners declined to watch
the recording, failed to show how and what part of it, if any, was not genuine B
but merely made general denials and sought permission to cross-examine and
opportunity to lead evidence. [543-E-Fl

2. 7. The sufficiency of the time granted depends upon the facts and
circumstances of each case. Having regard to the facts of the case it cannot
be accepted that in the present case, the petitioners were not granted sufficient C
time to meet the case against them. (543-G-H)

2.8. Admission is the best evidence that can be relied upon, and though
not conclusive, is decisive of the matter, unless successfully withdrawn or
proved erroneous. The petitioners have failed to satisfy the latter part.
(552-H; 553-A] D
Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and
Ors., [1960) 1 SCR 773, relied on.

3. The object for enacting the defection law is to curb the menace of
defection. Despite defection a member cannot be permitted to get away with E
it without facing the consequences of such defection only because of mere
technicalities. The substance and spirit of law is the guiding factor to decide
whether an elected independent member has joined or not a political party
after h~s election. [541-D-F]

4.1. Petitioners (independent members) have incurred disqualification
F
as provided in paragraph 2(2) of the Tenth Schedule of the Constitution of
India. [554-B-CJ

4.2. It is correct that there is a fundamental difference between an
independent elected member and the one who contests and wins on ticket given G
by a political party. This difference is recognized by various provisions of
the Tenth Schedule. An independent elected member of a House incurs
disqualification when he joins any political party after election as provided in
paragraph 2(2) of the Tenth Schedule. It is also correct that the proposition
that giving of outside support by an independent elected member is not the
same thing as joining any political party after election. To find out whether H
526 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A an independent member has extended only outside support or, in fact, has joined
a political party, materials available and also the conduct of the member are
to be examined by the Speaker. It may be possible in a given situation for a
Speaker to draw an inference that an independent member of the Assembly
has joined a political party. No hard and fast rule can be laid down when the
answer is dependent on the facts of each case. [541-A-D]
B
4.3. To determine whether an independent member has joined a political
party the test is not whether he has fulfilled the formalities for joining a
political party. The test is whether he has given up his independent character
on which he was elected by the electorate. A mere expression of outside
support would not lead to an implication of a member joining a political party.
C At the same time, non-fulfillment of formalities with a view to defeat the intent
of paragraph 2(2) is also of no consequence. The question offact that a member
has given up his independent character and joined, for all intent and purposes,
a political party though not formally so as to incur disqualification provided
in paragraph 2(2) is to be determined on appreciation of the material on record.
D Applying this test here, it cannot be held that the Speaker committed any
illegality in coming to the conclusion that the petitioners had joined the Indian
National Congress. The conclusions reached by the Speaker cannot be held
to be unreasonable, assuming that two views were possible.
(553-F-H; 554-A-B)

5.1. On the facts of the present case, the Speaker was justified in
E coming to the conclusion that there was no split in the original political party
of the petitioner 'J'. Likewise, in Writ Petition of another petitioner belonging
to political party, the Speaker on consideration of relevant material placed
before him came to the conclusion that there was no split as contemplated by
paragraph 3 of the Tenth Schedule. The finding of the Speaker cannot be
F faulted. In fact, letter of the petitioner dated 17th June sent to the Speaker
itself shows that what was claimed was that the Haryana unit of the Republican
Party of India effected a split in the original party on 21st December, 2003.
The finding that the claim of split was made as an afterthought to escape
disqualification under paragraph 2(l)(a) of the Tenth Schedule cannot be held
to be unreasonable or perverse. The Speaker was justified in coming to the
G conclusion that despite various opportunities, no valid proof or evidence was
placed on record by the petitioner to show that indeed a split had taken place
in the original political party. (563-D-G)

5.2. The disqualification under paragraph 2(1)(a) is incurred when a
member of the House voluntarily gives up membership of his original political
H party. Paragraph 2 is, however, subject to paragraph 3 of the Tenth Schedule.
JAGJIT SINGH v. STATE OF HARY ANA 527
If conditions of paragraph 3 are satisfied, despite giving up membership A
voluntarily, a member would not incur disqualification under paragraph 2.
Paragraph 3 proceeds on the assumption that but for the applicability of the
said provision the disqualification under paragraph 2 would be attracted. The
burden to prove the requirements of paragraph 2 is on the person who claims
that a member has incurred the disqualification. The burden to prove the B
requirements of paragraph 3 is on the member who claims that there has
been a split in his original political party and for that reason disqualificati_on
under paragraph 2 is not attracted. (558-C-E) ,~:

Ravi S. Naikv. Union ofIndia and Ors., [1994) Supp. 2 SCC 641, relied
on.
c
5.3. The acceptance of the contention that only claim is to be made to
satisfy the requirements of paragraph 3 can lead 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 D
satisfied even primafacie 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 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. For the purposes of paragraph 3, mere making of claim is E
not sufficient. The primafacie 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.
(559-C-F)

5.4. In the present case, the Speaker has held that the petitioner has
failed to satisfy that split in the original party, had taken place. The petitioner F
voluntarily gave up membership of National Congress Party (NCP) and joined
this newly formed party. On these facts, the disqualification of voluntarily
giving up membership of NCP stands attracted subject to the claim of the
petitioner under paragraph 3. The petitioner had to prove that the stipulations
of paragraph 3 are satisfied. The Speaker has held that no valid proof or G
evidence was placed on record to show that split had indeed taken place in
NCP. The Speaker, on the basis of material on record, has come to the
conclusion that the petitioner was wanting to treat his own defection allegedly
supported, according to the petitioner, by some party workers at local level as
a split in his original political party. Such a plea was not accepted by the
Speaker. The Speaker is right. Such a split, if held to be valid for the purposes H
528 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A of paragraph 3, would defeat the very purpose of the law. The requirement is
not the split of the local or State wing of original political party but is of
original political party as defined in paragraph l(c) of the Tenth Schedule
read with the explanation in paragraph 2(1) to the effect that 'an elected
member of a House shall be deemed to belong to the political party, if any, by
B which he was set up as a candidate for election as such member'.
[559-F-H; 560-C-E(
Madan Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha The
Punjab Law Reporter Vol.CXVII 1997-3, 374- disapproved.

5.5. In the case of split, one-third members of State Legislature
C belonging to that political party must form a group to make the split effective
within the State Legislature but it does not lead to the conclusion that the
Parliament intended to treat State Unit of a political party as a separate entity
for the purposes of the benefit of paragraph 3. Paragraph l(c) defining
original political party and explanation as given in paragraph 2(1) have already
D been noticed herein before. It is clear from a bare reading thereof that the
elected member belongs to the political party by which he is set up as a
candidate for election as such member. From the plain language of these
provisions, it cannot be held that for the purposes of the split, it is the State
Legislature party in which split is to be seen. If a member is set up by a
National Party, it would be no answer to say that events at National level have
E no concern to decide whether there is a split or not. In case a member is put
up by a National Political party, it is split in that party which is relevant
consideration and not a split of that political party at the State level.
[562-B-E)
G. Viswanathan v. Hon'ble Speaker Tamil Nadu Legislative Assembly,
p Madras and Anr., [1996) i sec 353, relied on.

5.6. The words 'he and any other person' and the words 'the group' in
paragraph 3 on the plain reading shows that the benefit of paragraph 3 is not
available to a single member legislature party. It cannot be said that the words
'he and any other person', in the context of a recognized single member
G legislature party should be read and understood as 'he or he and any other
members of his legislature party constitute the group'. The Court cannot
read words in the Constitution which do not exist. Undoubtedly, paragraph
2(l)(a) is subject to the provisions of paragraphs 3, 4 and 5 and if paragraph
3 applies and ingredients thereof are satisfied the member would not attract
disqualification under paragraph 2(1)(a). In that sense paragraph 3 overrides
H paragraph 2(l)(a). The factor that a single member legislature party is
JAGJIT SINGH v. STATE OF HARYANA 529
recognized by the Speaker is of no relevance in interpreting paragraph 3 of A
the Tenth Schedule. In the context of the language of paragraph 3 of the Tenth
Schedule, Section 13(2) of the General Clauses Act, 1897 which requires
that unless there is anything repugnant in the subject of context, 'words in
the singular shall include the plural, and vice-versa' has no applicability. It
is, ordinarily, not the function of the Court to read words into a statute. The
Court must proceed on the assumption that the Legislature did not make a B
mistake and it intended to say what it said. It is well settled that "the Court
cannot add words to a statute or read words into it which are not there,
especially when the literal reading produces an intelligible result'.
1566-D-H; 567-A-BJ

P.K. Unni v. Nirmala Industries and Ors., (199012 SCC 378, referred C
to.
5. 7. It cannot be said that when paragraph 3 protects when there is
defection of a group consisting of not less than one-third of the members of
a legislature party, the intention of law can never be to deprive such a benefit
where group is 100%. Firstly, there is no contradiction or ambiguity or D
defect or omission in paragraph 3; secondly, there is no manifest
contradictions insofar as the apparent object of the defection law is concerned
in paragraph 3 depriving the benefit of single member legislature party;
thirdly the legislature is assumed to have known the existence of single
member legislature party; and finally from the language of paragraph 3, it is
evident that the Parliament did not intend to grant the benefit of paragraph 3 E
to a single person legislature party, having regard to the object of the
Constitutional amendment dealing with evil of defection. Advisedly, the words
are 'he and other members' instead of the words 'he or he and other members'.
[567-A-E)
5.8. The object of the Tenth Schedule is to discourage defection. F
Paragraph 3 intended to protect a larger group which, as a result of split in
a political party which had set up the candidates, walks off from that party
and does not treat it as defection for the purposes of paragraph 2 of the Tenth
Schedule. The intention of the Parliament was to curb defection by a small
number of members. That intention is clear from paragraph 3 which does
not protect a single member legislature party. By Constitution (Ninty-first G
Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth Schedule.
(567-D-FJ

5.9. The question of drawing adverse inference in view of Speaker not
rebutting the averments, would depend upon the satisfaction of the Court,
having regard to the facts and circumstances of the case. Ordinarily, the H
530 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A adverse inference can be drawn in respect of allegations not traversed, but
there is no general rule that adverse inference must always be drawn, whatever
the facts and circumstances may be. The facts and circumstances of the
present case as to how the petitioners have been avoiding to appear before the
Speaker; how the proceedings were being delayed and long adjournments
sought on ground such as non-availability of senior advocates because of court
B vacations. In the light of these peculiar facts and circumstances, a telephone
call like the one alleged can mean that further adjournment as sought for by
the petitioners is possible if they do not vote in the Rajya Sabha election. On
facts there is no adverse inference and the plea of malafides cannot be
accepted. (568-B-EJ
c 6. Certain questions have been raised about the confidence in the matter
of impartiality on some issues having political overtones which are decided
by the Speaker in his capacity as a Tribunal. It has been urged that if not
checked, it may ultimately affect the high office of the Speaker.
Recommendations have been made by the National Commission to review the
D working of the Constitution recommending that the power to decide on the
question as to disqualification on ground of defection should vest in _the
Election Commission instead of the Speaker of the House concerned. There
are views of number of other experts, committees/commissioner to the effect
that the power of disqualification as a result of defection need ta be exercised
E in accordance with the opinion of the Election Commission as in the case of
decision on question as to disqualification of members provided for in Article
103 and 194(2) of the Constitution. (568-H; 569-A-CJ

Kihoto Hollohan v. Zachillhu and Ors., (1997) supp. 2 SCC 651,
referred to.
F Anti-Defection Law and Parliamentary Privileges by Dr. Subhash C.
Kashyap; Indian Constitutional Law by M.P. Jain 5th Edn; Constitutional
Law of India, 2nd Edn. by T.K. Tope, Reviewing the Constitution edited by
Dr. Subhash C. Kashyap and Ors; First V.M. Tarkunde Memorial Lecture on
"Indian Democracy Reality or Myth?" delivered by Shri Soli J. Sorabjee,
G referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 287 of2004.

(Under Article 32 of the Constitution of India.)
WITH
G
JAGJITSINGHv. STATEOFHARYANA 531
WP (C) Nos. 290, 291, 292, 293 and 294 of2004. A
Ajay Siwach, A.A.G., P.P. Rao, V.A. Bobde, Soli J. Sorabjee, R.N. Trivedi,
Mahendra Anand, Shanti Bhushan, Rakesh K. Khanna Jaspal Singh, R.N.
Karanjawala, Arunabh Chaudhary, Sarvesh Singh Baghel, Abhishek Kumar,
Anshuman Ashok, Dashmeet Chaddha, Kanika Agnihotri, Pragya Baghel,
Manik Karanjawala, Gaurav Vatts, Aditya Kumar Choudhary, Manish Mohan, B
Sweta Garg, Surya Kant, Sandeep Sharma, T.V. George, Sanjai Pathak, Ugra
Shankar Prasad and Arun Kumar Beriwal for the appearing parties.

The Judgment of the Court was delivered by

Y.K. SABHARWAL, CJ. These petitions challenge the legality of orders C
passed by the Speaker of Haryana Legislative Assembly (for short, 'the
Assembly') disqualifying petitioners from being members of the Assembly.
The impugned orders have been passed in exercise of the powers conferred
on the Speaker under the Tenth Schedule to the Constitution of India. Four
petitioners (Writ Petition Nos.290, 291, 293-294 of 2004) were independent D
members of the Assembly. Petitioner-Jagjit Singh (W.P.No.287 of2004) belonged
to a political party named 'Democratic Dal ofHaryana'. He was a lone member
representing his party in the Assembly. Petitioner- Karan Singh Dalal
(W.P.No.292 of2004) was a lone member of a political party named 'Republican
Party of India' in the Assembly.
E
\ - The petitioners were elected to the Assembly in election held in February,
2000. All impugned orders disqualifying the petitioners were passed on 25th
June, 2004. The voting for election to Rajya Sabha took place on 28th June,
2004. The petitio~ers, however, could not yote in the said election, having
ceased to be the members of the Assembly with immediate effect.
F
The challenge to the orders of disqualification is made on various
grounds. The ground common to all the petitions is the violation of principles
of natural justice. It has been contended on behalf of all the petitioners that
the orders of disqualification were made in utter haste with a view to deprive
them of their right to vote on 28th June, 2004 with a view to help the Chief G
Minister whose son was a candidate in elections to Rajya Sabha. It is
contended that the Speaker had no basis for coming to the conclusion that
the independent members had joined the Indian National Congress. It is
claimed that the impugned orders are clearly result ofmalafides of the Speaker.
On behalf of the two petitioners belonging to political parties, it has been;
contended that they are entitled to protection of paragraph 3 of the Tenth H
A
532 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.

Schedule since there were splits in their original political parties and they
-
"i

being single member parties in the Assembly, on having joined Indian National
Congress, the stipulation that when more than one-third members join another
party, there is a split, stood fulfilled, it being a case of hundred per cent
members joining another political party.

B Before considering the legal submissions, we may briefly narrate the
facts of each case.

Writ Petition No.287 of 2004 (Jagjit Singh) and Writ Petition No.292
of 2004 (Karan Singh Dalal)

c The petitioner contested election as a candidate of National Congress
Party (NCP) and was the only elected member of the party in the Assembly.
The case of the petitioner is that on 28th December, 2003 due to organizat!onal
difficulties and differences with the central leadership ofNCP which is primarily
based in Maharashtra/Meghalaya, the workers/leaders of the NCP at Haryana
D decided to cause a split by passing a unanimous Resolution. The split was
recognized by central leadership ofNCP. On split, a new political party named
'Democratic Dal of Haryana' was formed. The petitioner on 29th December,
2003 filed application before the Speaker placing the factum of split and
formation of the new party on record. On 31st December, 2003, respondent
No.3 filed a complaint before the Speaker under paragraphs 2 and 6 of the
E Tenth Schedule of the Constitution of India seeking disqualification of the
petitioner on the ground that he has voluntarily defected from NCP and
formed/joined Democratic Dal of Haryana. On 17th March, 2004, Speaker
issued notice to petitioner calling for his comments to the allegations made
against him. However, notice could not be served on the petitioner. The case
F of petitioner is that on 30th April, 2004 merger of Democratic Dal ofHaryana
took place with Indian National Congress in accordance with law and, therefore,
the case is covered by Paragraph 4 of the Tenth Schedule. In this view, no
proceedings for disqualification could be initiated or continued. A further
notice dated 23rd April, 2004 was also issued to the petitioner. A fresh notice f.
·r
/
dated 18th May, 2004 was issued calling upon the petitioner to file reply on
G or before 4th June, 2004 that was served on the staff of the petitioner on 3 lst
May, 2004. The petitioner on 4th June, 2004 filed an application before
respondent no.2-Speaker placing on record certain facts and praying for
extension of time by four weeks to file reply. On 23rd June, 2004, request of
the petitioner for adjournment of proceedings beyond 28th June, 2004 was
rejected by the Speaker who heard the arguments and listed the matter for
·H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 533
further proceedings for 24th June, 2004. On 24th June, 2004, proceedings A
were adjourned to 25th June, 2004 for orders. Further case of the petitioner
is that the Speaker on 24th June, 2004, called him on his mobile phone and
stated that if petitioner decides to abstain from voting in election of Rajya
Sabha on 28th June, 2004, his disqualification can be avoided. The impugned
order was passed on 25th June, 2004.
B
One of the contentions urged is that the Speaker, respondent No.2, has
not filed any reply and, therefore, the averment made that he called the
petitioner on 24th June, 2004 asking him that if he decides to abstain from
voting, disqualification can be avoided shall be deemed to be admitted and,
thus, the malafides of the Speaker are apparent. The contention is that the C
Speaker was acting on the dictates of respondent No.5, the Chief Minister of
Haryana whose son was contesting the election to Rajya Sabha and the
impugned order was passed at his behest.

The facts of writ petition No.292 of2004 are almost similar with the only
difference that the petitioner here was member of another political party, D
namely, Republican Party of India (RPI). All other facts including the dates,
grounds, non-service and thereafter manner of service of the notice are almost
similar.

W.P.No.291 o/2004 (Dev Raj Dewan) and W.P. Nos.290, 293-29412004
E
The petitioner in Writ Petition No.291 of 2004 was elected as an
independent member of the Assembly and a& such supported from outside
the Government of Indian National Lok Dal Party headed by respondent No.5,
as ChiefM~nister for more than four years from February, 2000 to June, 2004.
The case of the petitioner is that on 14th June, 2004, he withdrew his support
to Government of respondent No.5 and declared his outside support to Indian F
National Congress in the State of Haryana. On 15th June, 2004, a complaint
was filed against him by respondent No.3 under paragraphs 2 and 6 of the
Tenth Schedule of the Constitution on the ground that petitioner had joined
the Indian National Congress. Complaints were also filed against petitioners
in Writ Petition Nos.290, 293-294 seeking their disqualification on similar G
grounds. The Speaker, respondeflt No.2, issued notice to the petitioner on
16th June, 2004 for submitting comments on 24th June, 2004. The application
dated 23rd June, 2004 filed by respondent No.3 before Speaker to place on
record additional evidence was taken up by the Speaker on 24th June, 2004.
The copies of application dated 23rd June, 2004 for placing on record additional
H
534 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A evidence, affidavit of Ashwani Kumar along with transcripts of interview on
Zee TV and Haryana News and the alleged page of Congress Legislature
Party Register dated 16th June, 2004 were handed over by the Speaker to the
c9unsel for the petitioner at 3.30 p.m. on 24th June, 2004 with a direction to
file reply thereto by IO a.m. on the next date i.e. 25th June, 2004. On 25th
B June, 2004, petitioner filed a short reply to the main petition alleging malafides
against the Speaker and the Chief Minister and denying that he joined Indian
National Congress. A reply was also filed on that date to the application
stating that fair opportunity to contest the proceedings had not been granted
and the evidence is concocted and manipulated. An opportunity was sought
to cross-examine Ashwani Kumar and also to lead evidence. On the same
C date at 1.00 p.m. the impugned order was passed. The facts in the other three
cases are almost identical.

According to the petitioners, there is no material for coming to the
conclusion that they joined Indian National Congress. They attribute ma/afides
to respondent Nos.2 and 5. According to them, the sole purpose ofrespondent
D No.2 was to deprive them of their right to exercise their franchise in the Rajya
Sabha elections to help the son of the Chief Minister. They also dispute the
correctness of the T.V. and newspaper reports to the effect that they have all
joined Indian National Congress. The contention is that joining a political
party is different from extending outside support to it. They contend that in
E a similar manner the petitioners without joining the party of respondent No.5,
for nearly 4 years were extending his Government outside support and now
their decisiqn to extend outside support to Indian National Congress cannot
and does not amount to joining ftre said political party. It has been strenuously
contended that the petitioners have been denied the opportunity to lead
evid6nce and to cross-examine witnesses of the complainant to demonstrate
F that they had not joined Indian National Congress. It is contended that the
orders of disqualification cast a stigma on the petitioners and adversely
affected their reputation and any provision which may lead to their
disqualification and affect their reputation has to be strictly construed. It is
further contended that there is a fundamental difference between the position
G of independent candidates and those who are elected on tickets of political
parties. It is also their contention that the Speaker has passed orders with
a pre-determined mind in haste so as to deprive the petitioners of their right
to vote in Rajya Sabha elections. The submission is that the petitioners were
entitled to explain what had appeared in the print and electronic media. The
main contention is that since principles of natural justice have been violated,
H the impugned orders are nullity.
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 535

Four petitioners who were elected as members of the Assembly as A
independent candidates, have been disqualified by the impugned orders under
paragraph 2(2) read with paragraph 6 of the Tenth Schedule. Paragraph 2(2)
provides that an elected member of a House who hac; 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. According to the impugned orders, the four independent members B
of the Assembly having joined Indian National Congress have incurred this
disqualification.

The Speaker, while exercising power to disqualify members, acts as a
Tribunal and though validity of the orders, thus, passed can be questioned C
in the writ jurisdiction of this Court or High Courts, the scope of judicial
review is limited as laid down by the Constitution Bench in Kihoto Hollohan
v. Zachillhu & Ors., [1992] supp.2 SCC 651. The orders can be challenged
on the ground of ultra vires or malafides or having been made in colourable
exercise of power based on extraneous and irrelevant considerations. The
order would be a nullity if rules of natural justice are violated. D
The requirement to comply with the principles of natural justice is also
recognized in rules made by the Speaker in exercise of powers conferred by
paragraph 8 of the Tenth Schedule. The Speaker, Haryana Legislative
Assembly, made the Haryana Legislative Assembly (Disqualification of
Members on ground of Defection) Rules, 1986 in exercise of power conferred E
by paragraph 8 of the Tenth Schedule. Rule 7(7), inter a/ia, provides that
neither the Speaker nor the Committee shall come to any finding that a
Member has become subject to disqualification under the Tenth Schedule
without affording a reasonable opportunity to such member to represent his
case and to be heard in person. F
The question whether reasonable opportunity has been provided or not
cannot be put in a strait-jacket and would depend on the fact situation of each
case.

At the outset, we may mention that while considering the plea of G
violation of principles of natural justice, it is necessary to bear in mind that
the proceedings, under the Tenth Schedule, are not comparable to either a trial
in a court of law or departmental proceedings for disciplinary action against
an employee. But the proceedings here are against an elec;:ted representative
of the people and the judge holds the independent high office of a Speaker.
H
536 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A The scope of judicial review in respect of proceedings before such Tribunal
is limited. We may hasten to add that howsoever limited may be the field of
judicial review, the principles of natural justice have to be complied with and
in their absence, the orders would stand vitiated. The yardstick to judge the
grievance that reasonable opportunity has not been afforded would, however,
B be different. Further, if the view taken by the Tribunal is a reasonable one,
the Court would decline to strike down an order on the ground that another
view is more reasonable. The Tribunal can draw an inference from the
conduct of a member, of course, depending upon the facts of the case and
totality of the circumstances.

C Now, we may note some of the judgments on which reliance has been
placed by learned counsel for the petitioners to support the argument that the
principles of natural justice have been violated.

The observations in John v. Rees &Anr., [1969] 2 All E.R. at pages 307-
309 relied upon are to the following effect:
D
"As everybody who has anything to do with the law well knows, the
path of the law is strewn with examples of open and shut cases which,
somehow, were not; of unanswerable charges which, in the event,
were completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by discussion,
E suffered a change. Nor are those with any knowledge of human
nature who pause to think for a moment likely to underestimate the
feelings of resentment of those who find that a decision against them
has been made without their being afforded any opportunity to
influence the co1,1rse of events".

F The argument is-that if opportunity to lead evidence and cross-
examination had been granted to the petitioners, they would have shown that
they had not joined Indian National Congress despite what had appeared in
print and electronic media.

G Reliance is also placed on the observations of Justice Chinnappa Reddy
in National Textile Workers' Union & Ors. v. P.R. Ramakrishnan & Ors.,
[1983] l SCC 228 in His Lordship's concurring opinion while dealing with a
litiglition between two rival groups of shareholders of a Company to take over
the Company. While considering the question of right of hearing claimed by
the workers and the question whether the Companies Act contemplates any
H hearing to be given to the workers or it is to be given only to the contributories
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 537

and creditors, Justice Reddy observed that : A
"And, what do the workers want? They want to be heard lest their
situation be altered unheard. They invoke natural justice, so to claim
justice. They invoke the same rule which the courts compel
administrative tribunals to observe. Can courts say natural justice
need not be observed by them as they know how to render justice B
without observing natural justice? It will surely be a travesty of
justice to deny natural justice on the ground that courts know better.
There is a peculiar and surprising misconception of natural justice, in
some quarters, that it is, exclusively, a principle of administrative law.
It is not. It is first a universal principle and, therefore, a rule of C
administrative law. It is that part of the judicial procedure which is
imported into the administrative process because of its universality.
"It is of the essence of most systems of justice-certainly of the Anglo-
Saxon System-that in litigation both sides of a dispute must be heard
before decision. 'Audi Alterum Par tern' was the aphorism of St.
Augustine which was adopted by the courts at a time when Latin D
Maxims were fashionable". Audi Alterum Partem is as much a principle
of African, as it is of English legal procedure; a popular Yoruba saying
is: 'wicked and iniquitous is he who decides a case upon the testimony
of only one party to it' (T.O. Elias : The Nature of African Customary
Law). Courts even more than administrators must observe natural
justice."
E

After laying down aforesaid principles in relation to the right of workers
to be heard, learned Judge said :

"It is said that the Companies Act does not confer any special rights
on the workers, they are virtual strangers to the Act and so why F
should they be heard in the petition for winding-up? The duty to hear
those asking to be heard is not dependent on the vesting of any right
under the very statute in respect of which jurisdiction is being exercised
by the court, but on any right whatever which may come under threat.
Surely it is not the law that rights other than those created by a G
particular statute may be taken away in proceedings under that statute
without affording a hearing to those desiring to be heard. If the
statute says only so and so will be heard and no other, of course, no
other will be heard. If the statute does not say who may be heard, but
prescribes the procedure for the hearing, that procedure must be
H
538 SUPREME COURT REPORTS [2006] SUPP. JO S.C.R.

A followed by every one who wants to be heard and what applies to one
will apply to the other. If creditors and contributories desire to be
heard and are heard, so shall workers. After hearing the workers, the
court may say that, on the facts and circumstances of the case, it is
not necessary to hear them further; but they cannot be turned away
at the very threshold. It may be that it is not for them to support or
B oppose the winding-up petition for any of the traditional reasons. But
they may make suggestions which may avert winding-up, save the
company and save their own lives. They may have suggestions to
make for restructuring the company or for the transfer of the undertaking
as a running business. The workers themselves may offer to run the
c industry forming themselves into a society. They may have a myriad
suggestions to make, which they can do if they are allowed to be
heard, If every holder of a single share out of thousands may be
heard, if every petty creditor may be heard, why can't the workers be
heard? It is said that once the workers are allowed to enter the
Company Court, the flood gates will be opened, all and sundry will
D join· in the fray and utter confusion will prevail. These are dark
forebodings for which there is no possible justification. The interest
of the workers is limited. It is the interest of the others, those that
battle for control and for power that may create chaos and confusion.
It must not be forgotten that the court is the master of the proceedings
E and the ultimate control is with the court. Parties may not be impleaded
for the mere asking or heard for the mere seeking. The court may well
ask the reason why, if someone seeks to be heard. Workers will not
crowd the Company Court and the Court will not be helpless to keep
out those whom it is not necessary to hear. It is said that workers will
not be allowed to intervene in a partition or a partnership action to
F oppose partition or dissolution of partnership and so why should
they be allowed to intervene in a winding-up petition. That is begging
the question. There is no reason why workers may not be allowed, in
appropriate cases, to intervene in partition and partnership actions to
avert disaster and to promote welfare. As we said, impleading and
G hearing are not for the mere asking and seeking."

In the context of the present case, we fail to understand the relevance
and applicability of the relied upon observations. The present is not a case
of no opportunity. It is a case where the question is whether sufficient
opportunity was granted to the petitioners or not.
H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.) 539
Reliance was also placed on the decision in Swadeshi Cotton Mills v. A
Union ofIndia, [ 1981] 1 SCC 664. In that decision after reviewing almost the
entire law including the decision of House of Lords in Ridge v. Baldwin,
(1964) AC 40, John v. Rees (supra), it was held that a quasi-judicial or
administrative decision rendered in violation of the audi alteram partem rule,
wherever it can be read as an implied requirement of the law, is null and void. B
There can be no quarrel about the applicability of general principles laid
down in the aforesaid cases but the question is about the applicability of
those principles to the facts of the cases before us. Let us now consider the
case which specifically dealt with disqualification under the Tenth Schedule
and similar argument of violation of principles of natural justice. C
In Ravi S. Naik v. Union of India and Ors., [1994) Supp. 2 SCC 641,
challenging the disqualification order passed by the Speaker of the Goa
Assembly, it was urged that reasonable opportunity was denied in as much
as sufficient time was not granted to respond. Further, it was urged that the
Speaker had referred to certain extraneous materials and circumstances, namely, D
the copies of the newspapers that were produced at the time of hearing and
the talks which the Speaker had with the Governor and had denied to the
petitioner an opportunity to adduce evidence. Noticing the principles of
natural justice, the decision of this Court in Kihoto Hollohan case, Mrs.
Maneka Gandhi v. Union of India & Anr., [1978) 1 SCC 248, Union of India E
and Anr. v. Tulsiram Patel, [1985) 3 SCC 398 and reiterating that an order of
an authority exercising judicial or quasi judicial functions passed in violation
of the principles of natural justice is procedurally ultra vires and, therefore,
suffers from a jurisdictional error and that is the reason why in spite of finality
under paragraph 6 (I) of the Tenth Schedule, such a decision is subject to
judicial review on the ground of non-compliance with the rules of natural F
justice, it was said that "But while applying the principles of natural justice,
it must be borne in mind that "they are not immutable but flexible" and they
are not cast in a rigid mould and cannot be put in a legal strait-jacket.
Whether the requirements of natural justice have been complied with or not
has to be considered in the context of the facts and circumstancegs of a G
particular case."

Dealing with the argument that reference has been made to newspapers
and opportunity to adduce evidence was denied, it was held that the Speaker
was drawing an inference about the fact which had not been denied by the
appellants themselves viz. that they had met the Governor along with two H

--
540 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R.

A other persons in the company of Congress (I) MLAs. The talk between the
Speaker and the Governor also referred to the same fact. It was noted that
the controversy was confined to the question whether from the said conduct
an inference could be drawn that they had voluntarily given up membership.
Rejecting the grievance about the denial of opportunity to adduce evidence,
B in Ravi S. Naik 's case, it was noticed that appellants were the best persons
who could refute the allegations but they did not come forward to give
evidence and also failed to seek permission to cross examine one Dr. Jahlmi
in respect of the statement made by him before the Speaker that the appellants
had given up their membership of their political party.

C We will consider at an appropriate place later the contention urged in
the present case that unlike Ravi S. Naik 's case, the petitioners had disputed
the allegations made in the petition and had also sought permission for
leading· evidence and for cross examination of Ashwani Kumar which was
illegally denied to them.

D Considering that rules of natural justice are flexible, let us now examine
the facts of the present case where the petitioners filed their replies to the
complaint and were asked by the Speaker to watch the video recording and
point out doctoring thereof, if any. The question is that having failed to do
so, can they be heard on the facts of the present case, to say that non-grant
of opportunity to cross-examine Ashwani Kumar and to adduce evidence has
E resulted in violation of rules of natural justice on having simply denied that
they have not joined the Indian National Congress? Had they availed of the
opportunity and pointed out how the recording was not correct and it was
doctored and then not permitted to lead evidence, the argument that there has
been violation of principles of natural justice may have carried considerable
F weight. The petitioners cannot be permitted to sit on the fence, take vague
pleas, make general denials in the proceedings before the Tribunal of the
nature under consideration. Under these circumstances, mere denial of
opportunity to cross-examine or adduce evidence may not automatically lead
to violation of principles of natural justice. The principles of natural justice
cannot be placed in such a rigid mould. The court, on facts of a case despite
G denial of opportunity to lead evidence, may come to the conclusion that
reasonable opportunity has been afforded to the person aggrieved. The
principles of natural justice are flexible and have to be examined in each case.

The question to be asked in the ultimate analysis would be whether the
H person aggrieved was given a fair deal by the authority or not? Could a
...
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 541
reasonable person, under the circumstances in which Tribunal was placed, A
pass such an order? Answer to these questions would determine the fate of
the case.

We have no difficulty in accepting the contention that there is a
fundamental difference between an independent elected member and the one
who contests and wins on ticket given by a political party. This difference B
is recognized by various provisions of the Tenth Schedule. An independent
elected member of a House incurs disqualification when he joins any political
party after election as provided in paragraph 2(2) of the Tenth Schedule.
There is also no difficulty in accepting the proposition that giving of outside
support by an independent elected member is not the same thing as joining C
any political party after election. To find out whether an independent member
has extended only outside support or, in fact, has joined a political party,
materials available and also the conduct of the member is to be examined by
• the Speaker. It may be possible in a given situation for a Speaker to draw
an inference that an independent member of the Assembly has joined a
political party. No hard and fast rule can be laid down when the answer is D
dependent on the facts of each case.

It is also essential to bear in mind the objects for enacting the defection
law also, namely, to curb the menace of defection. Despite defection a
member cannot be permitted to get away with it without facing the
consequences of such defection only because of mere technicalities. The E
substance and spirit of law is the guiding factor to decide whether an elected
independent member has joined or not a political party after his election. It
would not be a valid plea for a person who may have otherwise joined a
political party to contend that he has not filled up the requisite membership
form necessary to join a political party or has not paid requisite fee for such F
membership. The completion of such formalities would be inconsequential if
facts otherwise show that the independent member has joined a political
party. The facts of the four cases of independent elected members are
required to be examined in the light of these principles.

The facts have already been noticed earlier. We will now briefly G
recapitulate what was alleged in the complaint filed on 15th June, 2004, the
documents filed therewith, the additional documents filed with the application
dated 23rd June, 2004, the proceedings that took place before the Speaker and
what has been held in the impugned orders by the Speaker.

It was alleged i9n the complaints which were served on petitioners on H
542 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 16th June, 2004 that they had joined the political and legislature parties of
Indian National Congress as members thereof. The said fact had been widely
reported in all daily newspapers in English as well as vernacular language
dated 15th June, 2004. True copies of the news items as published in
newspapers reporting their having joined the Indian National Congress were
B filed. According to those reports, the leader of the Opposition in the State
Assembly had stated that these members were taken to Congress President
and had joined the said party. Copies of the news items as appearing in "'The
Tribune", "The Times of India", "Hindustan Times", "Punjab Kesari" and
"Dainik Jagran" were filed with the complaints. It was further alleged that
besides the news reports appearing in the print media, actions of these
C members joining the political and legislature parties of Indian National
Congress were widely reported by the electronic media including Zee News
television channel, Aaj Tak television channel and Haryana News of Punjab
Today television channel. •
Along with the application dated 23rd June, 2004, affidavit of one
D Ashwani Kumar was filed before the Speaker stating that he had seen these
independent members admitting and acknowledging in an interview to Zee
News television channel andHaryana News (Punjab Today Television Channel)
that they had joined the Indian National Congress. The original C.Ds
received from Zee Telefilms, true translation into English of the transcript of
E the interview conducted by the said channel and the original letter issued by
Zee Telefilms and handed over to Ashwani Kumar on his request were filed
on 23rd June, 2004. The original C.Ds received from Haryana News channel
along with English translation as above and the original proceedings of the
Congress legislative party in respect of proceedings dated 16th June, 2004 at
11.30 a.m. in the Committee room of Haryana Vidhan Sabha containing the
F signatures of three out of four independent members were also filed. It was
stated that despite best efforts, the complainant could not produce these
documents on 15th June, 2004 and was, thus, producing the same now along
with the application.

In reply to the complaint and to the application, the petitioners denied
G that they had joined the Indian National Congress on 14th June, 2004 and
stated that the newspapers have not reported correct facts and that they have
not filled up the requisite form and paid the subscription to become members
of the Indian National Congress and they only decided to withdraw the
support from the ruling party by joining hands with the Congress. It was
H further stated that they will cross-examine the complainant and reporters of
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 543
the print media and T.V. Channels and also lead evidence to prove that they A
have not joined any political party much less Indian National Congress. In
reply to the application, it was stated that on 24th June, 2004 written request
was made by the counsel for grant of three weeks' time to file the reply but
Speaker ordered that reply be filed on 25th June, 2004 by IO a.m. and they
were not provided fair opportunity to contest the petition. It was also
pleaded that alleged recording in the C.Ds is not genuine. In respect of the B
signatures as appearing in the photocopy of the proceedings register of the
Congress legislature party, it was also denied that Annexure Pl is the
photocopy of the original page of the proceedings register of the said
legislature party in respect of proceeding held on I 6th June, 2004.

It has to be noted that on 24th June, 2004 counsel representing the
c
petitioners were asked by the Speaker to watch the interviews conducted in
New Delhi on 14th June, 2004 by Zee News and Haryana News (Punjab Today
Television Channel) which was available on the compact disc as part of the
additional evidence with application dated 23rd June, 2004 filed by the
complainant. The counsel, however, did not agree to watch the recording D
which was shown on these two channels. The copies of the application dated
23rd June, 2004 were handed over to the counsel and they were asked to file
the reply by I 0 a.m. on 25th June, 2004. In the replies, petitioners merely
denied the contents of the application without stating how material by way
of additional evidence that had been placed on record was not genuine. E
It is evident from the above facts that the petitioners declined to watch
the recording, failed to show how and what part of it, if any, was not genuine
but merely made general denials and sought permission to cross-examine
Ashwani Kumar and opportunity to lead evidence.
F
The Speaker considered the request of the petitioners for grant of three
weeks' time in this factual backdrop and disallowed it and this is the basis
of the contention that the petitioners have been denied a reasonable
opportunity to lead evidences and, therefore, rules of natural justice have
been violated and, thus, the impugned orders of their disqualification are
nullities. G
The sufficiency of the time granted depends upon the facts and
circumstances of each case. Having regard to the facts as noticed hereinbefore,
we are unable to accept the contention that in the present case, the petitioners
were not granted sufficient time to meet the case against them.
H
544 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A It has to be remembered that the specific avennent in respect of materials
filed had already been made in the complaint dated 15th June, 2004. The
material filed on 23rd June, 2004 was supplementary to further support the
allegations in the complaint dated 15th June, 2004. The petitioners despite
grant of opportunity had declined to watch the recorded interview. It is one
thing to watch the interview, point out in what manner the recording was not
B genuine but instead of availing of that opportunity, the petitioners preferred
to adopt the course of vague denial.

Under these circumstances, the Speaker concluded that "there is no
room for doubting the authenticity and accuracy of the electronic evidence
C produced by the petitioner". The Speaker held :

" .... .In this regard, it is to be noted that the petitioner has produced
the original Compact disks (CDs), containing the interviews conducted
by Zee News and Haryana News (Punjab Today Television channel)
of the six independent Members of the Haryana Vidhan Sabha including
D the respondent and the same have been duly certified by both the
Television Channels as regards its contents as well as having been
recorded on 14.6.2004 at New Delhi. It has also been certified by both
the Television Channels through their original letters (P-9 and P-12)
duly signed by their authorized signatures that the original CDs were
handed over to Ashwani Kumar who was authorized by the petitioner
E in this regard and whose affidavit is also on the record as Annexure-
P-8 wherein he states that he had handed over the original CDs to the
petitioner. The letters, Annexures P-9 and P-12, also give out that the
coverage of their interviews on 14.6.2004 was also telecast by both
the Television Channels. In fact, the certificate given by the Haryana.
F News (Punjab Today Television Channel) authenticates the place of
the interview as the residence of Mr. Ahmed Patel at 23, Mother
Teresa Crescent in Delhi which interview as per the certificate was
conducted by the correspondent of the said Television Channel, namely
Shri Amit Mishra on 14.6.2004. the same certificate P-12 also
authenticates the coverage of the CLP meeting held in Chandigarh on
G 16.6.2004 conducted by their correspondent Mr. Rakesh Gupta.
Therefore, the electronic evidence which as per the petitioner is
supplementary to the evidence of Print Media already on the record
deserves to be taken on the record as it is admissible as per law."

The Speaker after holding that the petitioners have made vague
H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 545
allegations, without producing in support any material and evidence, has A
further concluded as under :

"As there is no controversy regarding the status of the respondent
from February 2000 and before 14.6.2004, the dispute primarily arises
regarding his true status as on 14.6.2004 onwards. In order to resolve
the matter, the evidence produced and placed on the record by the B
petitioner has to be considered. The petitioner has placed on record
firstly the news items appearing on 15.6.2004 in the various leading
newspapers (popularly labeled as the "Print Media") as Annexures P-
l to P-7. A perusal of the same reveals the reporting that six
independent Members of the Haryana Vidhan Sabha were taken to C
Ms. Sonia Gandhi, the Congress President on 14.6.2004 by Mr. Ahmed
Patel and Mr. Bhupinder Singh Hooda, Congress M.P. and thereafter,
it was reported that on 14.6.2004, all the six Members of the Haryana
Vidhan Sabha mentioned therein, (including the respondent) had joined
the Congress Party. This documentary evidence is corroborated by
the electronic evidence placed on the record by the petitioner in the D
form of the original Compact Disks (CDs) containing the interviews
conducted by Zee News and Haryana News (Punjab Today Television
Channel) of the six independent Members of the Haryana Vidhan
Sabha including the respondent which show that on 14.6.2004 at 23,
Mother Teresa Crescent Road, New Delhi the six independent Members
of Haryana Vidhan Sabha (including the respondent) joined the Indian E
National Congress Party. As per the certificates by both the Television
Channels, which are on record as (P-9 and P-12), the said interviews
were telecast on Zee News Television Channel at 5.00 p.m. On
14.6.2004 and on Haryana News (Punjab Today Tele~ision Channel)
on 14.6.2004 at 10 P.M. and on 15.6.2004 at 10 A.M. The petitioner F
has also placed on record the original CD received from Haryana
News (Punjab Today Television Channel), which shows its coverage
of the meeting of the CLP on 16.6.2004 at Chandigarh. Although an
opportunity was given to the Learned Counsel representing the
respondent to watch/view the electronic evidence placed on the record
by the petitioner, the said opportunity was not availed of. A viewing G
of the entire electronic record considered along with the supporting
evidence placed on the record clearly leads this Authority inter-alia
to the following conclusions:
(i) Six independent Members of the Haryana Vidhan Sabha are clearly H
546 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

A seen and heard acknowledging and admitting to their interviewers,
including Mr. Amit Mishra of Haryana News (Punjab Today
Television Channel) that they had joined the Congress Party on
14.6.2004.
(ii) These six independent Members of the Haryana Vidhan Sabha
B are:
1. Shri Bhim Sain Mehta, MLA
2. Shri Jai Parkash Gupta, MLA
3. Shri Mula Ram, MLA
c 4. Shri Rajinder Singh Bisla, MLA
5. Shri Dariyab Singh, MLA
-,::
6. Shri Dev Raj Deewan, MLA
(iii) The above named six Members of Haryana Vidhan Sabha were
D interviewed by Zee News Television Channel and Haryana News
(Punjab Today Television Channel) on 14.6.2004 at 23, Mother
Teresa Crescent, New Delhi which interview was witnessed by
Shri Ashwani Kumar as corroborated by him.
(iv) All the above named six members are seen in the company of
E Senior Congress Party Functionaries and Leaders during the
course of the above said interviews by the Television Channels,
wherein they admitted and acknowledged the fact that they had 1-
joined the Congress Party.
(v) Out of the above named six Members, three members, namely,
F Shri Dev Raj Deewan, Shri Rajinder Singh Bisla and Shri Jai
Parkash Gupta are seen participating in the meeting of the CLP
held on 16.6.2004 in the premises of the Haryana Vidha Sabha."

In the impugned orders, respondent No. 2 has further noted that while
examining and considering the aforenoted electronic evidence, he was fortified
G by the fact that being the Speaker of the Haryana Vidhan Sabha, on many
occasions as well as during the Sessions of the House, he has seen and heard
these members. He found that these members as seen and heard in the
electronic evidence are genuinely identified as also their voices which are
easily and clearly identified. The Speaker, thus, held that in view of the
irrefutable and overwhelming documentary and electronic evidence, no other
H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 547
conclusion was possible than that on 14th June, 2004 these independent A
members of Haryana Vidhan Sabha joined the Congress Party. He has also
referred to the documentary evidence regarding CLP meeting held on 16th
June, 2004 in the form of original sheet of proceedings register of CLP
containing the signatures of the petitioners. In respect of the signatures also,
the Speaker has noted that the signatures of the petitioners on the original B
sheet of the CLP proceedings are the same as their signatures on the
Vakalatnama filed by their counsel as is clear after comparison.

It was strenuously contended by learned counsel for the petitioners
that the Speaker while passing the impugned orders has relied upon his
personal knowledge which is wholly impermissible for a tribunal and contrary C
to the principles of fair play and violative of principles of natural justice. In
support, reliance is placed on the case of Dewan Singh v. Champat Singh
and Ors., (1969] 3 SCC 447 where this Court considered misconduct of the
arbitrators who decided the disputes referred to them on the basis of their
personal knowledge. On consideration of the arbitration agreement, it was
held by this Court that it does not empower the arbitrators either specifically D
or by necessary implication to decide the disputes referred to them on the
basis of their personal knowledge.

The principles laid down in the above case, have no application to the

..
facts of the present case. The two situations have no similarity. The Speaker
has only noticed that he has had various opportunities to see the petitioners E
in the Assembly and those shown in the recording are the same persons. We
are unable to find fault with this course adopted by the Speaker. There is
.J also nothing wrong or illegal in comparing signatures and coming to the
conclusion that the same are that of the petitioners. These proceedings
before the Speaker are not comparable with the arbitration proceedings before p
arbitrators.

Undoubtedly, the proceedings before the Speaker which is also a tribunal
albeit of a different nature have to be conducted in a fair manner and by
· complying with the principles of natural justice. However, the principles of
natural justice cannot be placed in a strait-jacket. These are flexible rules. G
Their applicability is determined on the facts of each case. Here, we are
concerned with a case where the petitioners had declined to avail of the
opportunity to watch the recording on the compact disc. They had taken
vague pleas in their replies. Even in respect of signatures on CLP register
their reply was utterly vague. It was not their case that the said proceedings H
548 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A had been forged. The Speaker, in law, was the only authority to decide
whether the petitioners incurred or not, disqualification under the Tenth
Schedule to the Constitution in his capacity as Speaker. He had obviously
opportunity to see the petitioners and hear them and that is what has been
stated by the Speaker in his order. We are of the view that the Speaker has
B not committed any illegality by stating that he had on various occasions seen
and heard these MLAs. It is not a case where the Speaker could transfer the
case to some other tribunal. The doctrine of necessity under these
circumstances would also be applicable. No illegality can be inferred merely
on the Speaker relying upon his personal knowledge of having seen and
heard the petitioners for coming to the conclusion that persons in the electronic
C evidence are the same as he has seen and so also their voices. Thus, even
if the affidavit of Ashwani Kumar is ignored in substance it would have no
effect on the questions involved.

Now, we may also note as to what is stated in the interviews on the
News Channel.
D
"PETITIONER- DEV RAJ DIWAN:

ZEE NEWS CORRESPONDENT

Why have you decided to join Congress Party?

E SHRI DEV RAJ DIWAN:

I was basically Congressman. I have been in Congress,. I have
struggled for the sake of Congress and worked for the Congress.
Moreover, my family has given blood for the Congress. Secondly, due
to some reasons; I was not given Congress party ticket in 1996 and
F I contested election as an independent candidate. Thereafter, in 1997,
I joined Congress Party. Again, I was not given Congress Party ticket
and in 2000. I again contested election as an independent candidate
and won the election. I was Congressman. I have affection and
friendly relation with Hooda jL I was looking for the opportunity to
G join the Congress Party. Hooda Ji has shown love, Smt. Sonia Gandhi
Ji has bestowed her blessings and we have joined the Congress Party.
Now, we will serve the Congress Party.

ZEE NEWS CORRESPONDENT

In case you are not given Congress Party ticket this time, will you
H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 549
leave the party again? A
SHRI DEV RAJ DIWAN:

No, now we have got blessings. Now, we will serve the Congress
Party physically, mentally and financially and will work only for the
Congress Party. B
SHRI DEV RAJ DIWAN:

Dev Raj Diwan, MLA from Sonepat. I was congressman and in 1996,
I was not given party ticket due to some reasons. I contested
elections as an independent candidate and I won the election too. I C
topped ~he elections in 1996 by getting maximum votes. Thereafter,
I joined Congress Party in 1997. In 2000, due to some reasons, I was
not given Congress Party ticket and again I contested elections as an
independent candidate. I was again elected as MLA by the people.
I am basically (Khaandani) Congressman. My whole of the family has
given blood for the sake of Congress Party. We are Congressman D
since the time ofShri Sanjay Gandhi. We stood with Shri Rajiv Gandhi
Ji. The whole country has been impressed by Smt. Sonia Gandhi with
her sacrifice. Keeping in view all these factors, we requested Hooda
Ji in this context. Now when such sacrificing leaders have come in
India, we also want to serve Congress Party. Smt. Sonia Ji has given E
her blessings. We will serve the Congress Party physically, mentally
and financially from very today.

HARYANA NEWS CQRRESPONDENT

Have you imposed any condition for that?
F
SHRI DEV RAJ DIWAN

Condition for what? We have come only to serve the Congress Party
being an MLA, we have already been serving the people of
Constituency. Now we will serve Congress Party and will also serve G
people of Constituency while remaining in Congress. Thank you.

PETITIONER- RAJINDER SINGH BISLA:

ZEE NEWS CORRESPONDENT

Why have you decided to join Congress Party at the time when H
A
550 SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R.

assembly general elections are drawing near?
-
SHRJ RAJINDER SINGH BISLA: -

We have decided to join Congress Party keeping in view the conditions
of the country because dedicated and right forces can fight against
B the communal forces only under the leadership of Smt. Sonia Gandhi.
Today, after meeting Smt. Sonia Gandhi, we have joined Congress
Party under the leadership of Shri Bhupinder Singh Hooda. Now, we
will serve and strengthen the Congress Party physically, mentally and
financially.

C SHRJ RAJINDER SINGH BISLA:

Rajinder Singh Bisla, MLA, Ballabhgarh.

HARYANA NEWS CORRESPONDENT

On which conditions, you have joined the Congress Party?
D
SHRJ RAJINDER SINGH BISLA:

We have not imposed any condition to join the Congress Party. I
During my longest political life, I was elected as an independent MLA
in 1977. In 1991, I was given Congress Party ticket by Shri Rajiv
E Gandhi. I had been President of District Congress Committee,
Faridabad. I had been on some important posts of the organization.
This time, I was not given Congress Party ticket from Ballabhgarh.
The people gathered in huge number (in the shape of big Panchayat)
and they elected me as an independent MLA with maximum votes.
F The people of my Constituency who elected me, keeping in· view the
conditions of Haryana State as well as conditions of our country,
reposed faith in the leadership of Smt. Sonia Gandhi and having faith
therein. We met Smt Sonia Gandhi and joined Congress Party under
he leadership of Shri Bhupinder Singh Hooda. We will serve the
Congress Party. We have entered into politics for the purpose of
G serving people.

PETITIONER-JAi PARKASHGUPTA:

ZEE NEWS CORRESPONDENT

H Jai Parkash Ji, why have you taken decision to join Congress Party
at this stage. You all were supporting Chautala Government so far.
JAGJIT SINGH v. STATE OF HARYANA [SABHARW AL, CJ.] 551
SHRJJAI PARKASHGUPTA: A
Since by birth, we are with Congress and our family has been with
Congress for the last three decades. We are members of Congress.
We cannot breathe without Congress Party. Last time, I was Legislator
and thereafter, during elections, I was not given Congress Party ticket
due to some reasons. Then, I contested assembly elections as an B
independent candidate and was elected by the people too. Today we
have come back to our home. We have got inspiration from Smt.
Sonia Gandhi who has sacrificed and has put an example. She has
sacrificed the chair of Prime Minister, which she could have and made
Sardar Manmohan Singh as Prime Minister. By coming back to our C
home, we have again joined Congress Party under the command of
Smt. Sonia ji, Hooda Sahib and Ahmed Sahib. Today we have become
associate members of Congress Party.

HARYANA NEWS CORRESPONDENT-

Whether you have joined Congress Party under pressure or with your D
own willing?

SHRI JAI PARKASH GUPTA

We are veteran Congressmen. Our family is Congressman so far and
have been members of Congress Party for the last three decades. E
After 1996, last time in 2000-Assembly Elections, there has been some
problem with me in getting party ticket. Public brought forth me as
an independent candidate and I won elections as an independent
candidate. Smt. Sonia Gan~hi has made a great sacrifice as she did
not accept the chair of Prime Minister and put an example in the world. F
She has made Sardar manmohan Singh as Prime Minister. We have
been impressed by this step of Smt. Sonia Gandhi and, therefore, we
have come back to our home. We will be in the Congress Party as
follower ofSmt. Sonia Gandhi and abide by the dictates ofSmt. Sonia
Gandhi as workers of Congress Party and will step forward in unity
while remaining in Congress Party. G
PETITIONER- BRIM SAIN MEHTA:

HARYANA NEWS CORRESPONDENT

Your good name please?
H
552 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A SHRJ BHIMSAIN MEHTA:

I, Bhim Sain Mehta, MLA from Indri, District Kaul. I was elected as
an independent MLA for last two consecutive terms. It is a matter
of great happiness that we have joined our original home because my
initial entry into politics has been in Congress Party. In 1979, I had
B been President of Congress Party. Thereafter, I had been in Congress.
Today, I am happy to see that we have joined Congress Party under
the leadership of Smt. Sonia Gandhi who is idol of sacrifice. By
reposing faith in her leadership, we all have joined Congress Party,
today selflessly and we don't have any expectations. We will abide
by the dictates of Smt. Sonia Gandhi Ji."
c
In view of the aforesaid statements and absence of any explanation, let
alone reasonable explanation, except only vague and general pleas and denials
by the petitioners in their stand before the Speaker, they cannot be heard to
say that they have been deprived of reasonable opportunity or there is
D violation of rules of natural justice.

From the facts and circumstances of the case and the conduct of the
petitioners, it can be reasonably inferred that they were only interested in
prolonging the proceedings beyond 28th June, 2004, the date fixed for Rajya
Sabha elections. The argument that the Speaker passed the impugned order
E in haste as voting for Rajya Sabha elections was fixed for 28th June, 2004 is
a double edged one since the petitioners were interested in prolonging the
proceedings beyond 28th June, 2004 and the Speaker wanted to decide before
it, if the petitioners had incurred disqualification-under the Tenth Schedule.

Relying upon the case of Narayan Bhagwantrao Gosavi Balajiwale v.
F Gopal Vinayak Gosavi and Ors., [1960] l SCR 773, it was sought to be
contended on behalf of the petitioners that the admissions allegedly made
before the media could be explained and shown as erroneous and not binding
on them and, therefore, opportunity ought to have been granted to them to
prove so and the failure to grant opportunity vitiates the impugned orders.
G The petitioners had failed to plead how the admissions/statements made by
them were erroneous. Had they done so, then the question of its proof would
have arisen. Instead of so doing, the petitioners only took shelter under the
general vague denial pleading that they wish to adduce evidence. It is also
to be remembered as observed by the Supreme Court in the aforesaid case,
that admission is the best evidence that can be relied upon, and though not
H
- JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.]

conclusive, is decisive of the matter, unless successfully withdrawn or proved
553
A
erroneous. The petitioners have failed to satisfy the later part.

Undoubtedly, the Speaker has to comply with the principles of natural
justice and cannot pass an order on the basis of pre-determination but in the
present case, it cannot be held that the impugned order suffers from any such
infirmity. We are unable to accept the contention that the petitioners were B
not given a fair deal by the Speaker and principles of natural justice have been
violated.

It was also contended that paragraph 2(2) of the Tenth Schedule deserves
to be strictly construed. The submission is that the word 'join' in Paragraph C
2(2) deserves a strict interpretation in view of serious consequences of
disqualification flowing therefrom on an order that may be made by the
Speaker. Paragraph 2(2) of the Tenth Schedule reads as under:

"2(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 D
disqualified for being a member of the House if he joins any political
party after such election."

As noted earlier, the object of the defection law has to be borne in mind.
The question to be considered is whether a member formally joining a political
party is the requirement so as to earn disqualification or the factum of joining E
can be inferred from facts and conduct ·of a member, without a member
formally joining a political party inasmuch as not filling form required to be
filled by a member of the political party under the rules and regulations of that
party or payment of any prescribed fee. The respondents pleaded for a liberal
construction and submitted that · inference from conduct was sufficient to
establish that an independent member has joined a political party. These are F
two extreme views on the. issue.

We are of the view that to determine whether an independent member
has joined a political party the test is not whether he has fulfilled the formalities
for joining a political party. The test is whether he has given up his G
independent character on which he was elected by the electorate. A mere
expression of outside support would not lead to an implication of a member
joining a political party. At the same time, non-fulfillment of formalities with
a view to defeat the intent of paragraph 2(2) is also of no consequence. The
question of fact that a member has given up his independent character and
joined, for all intent and purposes, a political party though not formally so H
A
554 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

as to incur disqualification provided in paragraph 2(2) is to be detennined on
-
appreciation of the material on record.

Applying this test here, it cannot be held that the Speaker committed
any illegality in coming to the conclusion that the petitioners had joined the
Indian National Congress. The conclusions reached by the Speaker cannot
B be held to be unreasonable, assuming that two views were possible.

Under the aforesaid circumstances, we are unable to find any illegality
in the impugned orders holding that the petitioners (in Writ Petition Nos. 290,
291, 293 and 294 of 2004) have incurred disqualification as provided in
C paragraph 2(2) of the Tenth Schedule of the Constitution of India.

Now, we revert to the disqualification of the petitioners in Writ Petition
Nos. 287 and 292 of 2004. It is not disputed that these petitioners have joined
Indian National Congress. As already noted, these petitioners were lone
members representing their respective parties in the Legislative Assembly.
D The Speaker in their cases has held that the protection of paragraph 3 of the
Tenth Schedule is not available to a single member party. According to the
petitioners, they are covered by the protected umbrella of paragraph 3 of the
Tenth Schedule. The petitioners have been· <lisqualified by the impugned
order in exercise of power under paragraph 2(1) and paragraph 6. Paragraph
2(1) is subject to paragraphs 3, 4 and 5.
E
In the present case, the question is of interpretation of paragraph 2( I)
and paragraph 3 of the Tenth Schedule which read as under:

"2. Disqualification on ground of defection- (I) Subject to the
provisions of paragraphs 3, 4 and 5, a member of a House belonging
F 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) if he votes or abstains from voting in such House contrary to any
G direction issued by the political party to which he belongs or by
any person or authority authorized by it in this behalf, without
obtaining, in either case, the prior pennission of such political
party, person or authority and such voting or abstention has not
been condoned by such political party, person or authority within
H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 555
fifteen days from the date of such voting or abstention. A
3. Disqualification on ground of defection not to apply in a case of
split - Where a member of a House makes a claim that he and any
other members of his legislature party constitute the group representing
a faction which has arisen as a result of a split in his original party
and such group consists of not less than one third of the members B
of such legislature party,-

(a) he shall not be disqualified under sub-paragraph (I) of paragraph
2 on the ground

(i) that he has voluntarily given up his membership of his original C
political party; or

(ii) that he has voted or abstained from voting in such House
contrary to any direction issued by such party or by any
person or authority authorized by it in that behalf without
obtaining the prior permission of such party, person or D
authority and such voting or abstention has not been
condoned by such party, person or authority within fifteen
days from the date of such voting or abstention; and

(b) from the time of such split, such faction shall be deemed to be
the political party to which he belongs for the purposes of sub- E
paragraph (I) of paragraph 2 and to be his original political party
for the purposes of this paragraph."

The case of the petitioners is that each of them constitute a group
representing a faction which has arisen as a result of split in. their respective
original political parties and this group consist of not less. than one third of F
the members of the legislature party. They say that this group consists of
I 00% since both of them were the only members of the legislature party in
the Assembly and the requirement of paragraph 3 is that the group to be
entitled to the protection of the said paragraph is to be of not less than 'one
third' of the members of such legislature party. They say that 100% is more
than one third and even otherwise when group of not less than one third is G
protected, the paragraph cannot be interpreted in a manner which will deprive
a group of I 00% of the protection. The submission is that once the sole
member of a party is recognized by Speaker as constituting the legislature
party in the Vidhan Sabha, the benefit of paragraph 3 has to be given to the
said sole member as it would be a case of more than one-third members of H
556 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A the legislature party representing the group.

In the first paragraph of the Tenth Schedule, expressions 'legislature
party' and 'original political party' have been defined which read as under :

"I. Interpretation. In this Schedule, unless the context otherwise
B requires,

(a)

(b) 'legislature party', in relation to a member ofa 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,
c means the group consisting of all the members of that 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
D of sub-paragraph (I) of paragraph 2;

(d) ················
The reliance of the petitioners is on the words 'unless the context
otherwise requires'. The contention is that in the context of a recognized
E single member legislature party, the definition has to be adopted suitably so
as not to deny the benefit of paragraph 3 to a sole member constituting the
legislature party of a political party.

The question, however, is not only of the definition of the expression
'legislature party' or of the words 'unless the context otherwise requfres' in
F paragraph 1 of the Tenth Schedule, but is also of the interpretation of paragraph
3 under which protection is sought by the petitioners.

The words in paragraph 3 are 'he and any other members of his-legislature
party'. The further requirement is of such members constituting 'the group'
representing a faction. It is the group which has to represent a faction which
G has arisen as a result of split in the original political party. It is such 'group'
which is to consist of not less than one third of the members of such
legislature party. The question also is as to the interpretation of the expression
'original political party' mentioned in paragraph 3. Further, the contention is
that for the applicability of paragraph 3, mere making of a claim about the split
H is sufficient and nothing more is required to be shown in so far as split is
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 557

concerned. The submission is that mere making of claim as to the split would A
entitle a member to the protection of Paragraph 3 subject, of course, to the
fulfillment of other conditions laid therein.

The petitioner Jagjit Singh (Writ Petition No. 287/2004) was a sole
elected member of the political party 'NCP'. He claims that there was a split
in the national unit of 'NCP' as a result whereof a political party named B
Democratic Dal of Haryana was formed on 20th December, 2003. On 29th
December, 2003 the petitioner intimated the Speaker about the split and
formation of the new political party and requested the Speaker to accept the
new legislature party and treat the petitioner as a member of the said party.
On 31st December, 2003 respondent No. 3 filed a complaint before the Speaker C
respondent No. 2 alleging disqualification on the ground that the petitioner

- has incurred disqualification by voluntarily defecting from 'NCP' and founding/
joining the Democratic Dal ofHaryana. On 30th April, 2004 Democratic Dal
of Haryana is said to have merged with the Indian National Congress in
accordance with paragraph 4 of the Tenth Schedule. The petitioner, for a long
time, could not be served with the notices issued by the Speaker on the D
complaint of respondent No. 3. The impugned order notices steps that had
to be taken for effecting substituted service on the petitioner. Ultimately, he
was served on 5th June, 2004. Thereafter, the petitioner has been repeatedly
seeking adjournments in proceedings before the Speaker. He, however, filed
an interim reply on 16th June, 2004 and sought four weeks' time on the E
ground that due to summer vacation of the Court, senior advocates were not
available. Petitioner has further alleged that he received a telephone call from
the Speaker on 24th June, 2004 when the Speaker told him that ifhe abstains
from voting in Rajya Sabha, the disqualification can be avoided. The impugned
order disqualifying the petitioner ori account of defection was passed on 25th
June, 2004 under paragraph 2(1)(a) of the Tenth Schedule. F
The facts in the case of Karan Singh Dalal (Writ Petition No. 292/2004)
are almost identical except that he belonged to Republican Party of India
(RPI), in respect whereof a similar split as in the case of Jagjit Singh was made
with the same dates and same reasons.
G
The question for determination is about the applicability of paragraph
3 of Tenth Schedule to the petitioner on the facts abovenoticed, namely,
applicability of protection of paragraph 3 to a single member party in a
legislatiure.

H
558 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

A Paragraph 3 requires the following conditions to be complied with :

(a) a split in the original political party giving rise to a faction; and
(b) faction is represented by group of MLAs in the House which
consists of not less than one-third of the members of such
legislature party.
B
Re. (a)

The submission urged on behalf of the pet1t1oners is that only
requirement of this paragraph is that a claim of split is made by the member
of the House and it is not the requirement to even prima facie show that such
C claim is correct or not. The disqualification under paragraph 2(I)(a) is incurred
when a member of the House voluntarily gives up membership of his original
political party. Paragraph 2 is, however, subject to paragraph 3 of the Tenth
Schedule. If conditions of paragraph 3 are satisfied, despite giving up
membership voluntarily, a member would not incur disqualification under
D paragraph 2. Paragraph 3 proceeds on the assumption that but for the
applicability of the said provision the disqualification under paragraph 2
would be attracted. The burden to prove the requirements of paragraph 2 is
on the person who claims that a member has incurred the disqualification. The
burden to prove the requirements of paragraph 3 is on the member who claims
that there has been a split in his original political party and for that reason
E disqualification under paragraph 2 is not attracted. In Ravi S. Naik, it was
observed that :

"In the present case Naik has not disputed that he has given up his
membership of his original political party but he ha~ claimed that there
has been a split in the said party. The burden, therefore, lay on Naik
F to prove that the alleged split satisfies the requirements of paragraph
3. The said requirements are:

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

Learned counsel for the petitioner, however, relies upon paragraph 37
H
JAOJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] .559
in Ravi S. Naik 's case in support of the submission that only a claim as to A
split has to be made and it is not necessary to prove the split. The said
observations are :

"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." B
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 :

"As to whether there was a split or not has to be detemtined by the
Speaker on the basis of the material placed before him." C
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 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, D
without being satisfied even prima facie 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 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 E
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 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.

In the present case, the Speaker has held that the petitioner has failed p
to satisfy that split in the original party, namely, NCP had taken place.
According to the petitioner, he had fomted/joined a new political party on
20th December, 2003 having been elected on the ticket of NCP in Febmary
2000. On 20th December, 2003, a new political party by the name of Democratic
Congress Party of Haryana was formed. The petitioner voluntarily gave up
membership of NCP on 20th December, 2003 and joined this newly fomted G
party. On these facts, the disqualification of voluntarily giving up membership
ofNCP stands attracted subject to the claim of the petitioner under paragraph
3. The petitioner had to prove that the stipulations of paragraph 3 are
satisfied. The Speaker has held that no valid proof or evidence was placed
on record to show that split had indeed taken place in NCP on 20th December, H
560 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 2003 or at any other time .. It has further been noted by the Speaker that
several times the respondent had been asked the names and addresses of the
office bearers of the original political party at the National and State level as
well as the names and addresses of the office bearers of the NCP who
attended the meeting in which resolution dated 20th December, 2003 was
B passed. The petitioner, despite opportunity, did not give any satisfactory
response or reply in this regard. The Speaker further held that it is only in
the original party ofNCP, the split had to be proved and not in the Legislative
Party of Haryana. The complainant had specifically taken the plea in the
complaint that no such split in NCP had taken place. The reply of the
petitioner to the said assertion is that he is only claiming that a split was
C caused by the party workers in the original political party on 20th December,
2003 and that information had been sent to the Speaker as well as to the
Election Commission of India. The Speaker, on the basis of material on record,
has come to the conclusion that the petitioner was wanting to treat his own
defection allegedly supported, according to the petitioner, by some party
workers at local level as a split in his original political party. Such a plea was
D not accepted by the Speaker. We think the Speaker is right. Such a split,
if held to be valid for the purposes of paragraph 3, would defeat the very
purpose of the law. The requirement is not the split of the focal or State wing
of original political party but is of original political party as defined in paragraph
l(c) of the Tenth Schedule read with the explanation in paragraph 2(1) to the
E effect 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'.

In support of the contention that for the purposes of paragraph 3 of the
Tenth Schedule, the split in a State unit is the requirement, reliance has been
F placed on a Full Bench decision of Punjab High Court in the case of Madan
Mohan Mittal, MLA v. The Speaker, Punjab Vidhan Sabha, [The Punjab Law
Reporter Vol.CXVII (1997-3) page 374)]. In the said case, it was held:

"A reading of these provisions clearly indicate that importance was
given to the House of the Legislative Assembly of the State. The
G original political party in relation to a member of the House is the
political party to which he belongs. Thus, it is clear that the Parliament
intended to treat the State unit of a political party as a separate entity
for the purpose of determining whether there is any disqualification
of a member of the House of that State Legislature. It is further made
H clear that in the case of split one-third members of the State Legislature
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 561

belonging to that political party must form a group to make the split A

.. effective within the State Legislature. Likewise for the purpose of (sic)
merger within the meaning of paragraph 4, two-thirds of the members
of the State Legislature party must have agreed to such merger. Thus,
while deciding the disqualification of the member of the State
Legislature the events that have taken place at the national level have B
no concern to decide whether there is a split or (sic) merger. To
elucidate this point one may take the case of split of a national
political party at the national level but in a particular State the members
of that political party do not want to split and they want to continue
the State unit intact. In such an event the split or events that have
taken place at the national level of the political party will have no C
effect on the State unit of that political party and the political party
at the State level continues to be in the original form. Likewise there
may not be a split at the national level but at the State level there may
be a split in the State unit of that political party and one-third of the
members of the State Legislature constitute the group representing
the faction as a result of the split in the State unit of the political party. D
Then the split comes into existence even though there is no split as
such at the national level. The scheme of Tenth Schedule is to be
looked from the point of view of State units of political parties when
the question of disqualification arises within the State Legislative
Assembly. Thus, according to us if there is a split of a political party E
at the State level and one-third members of the Legislature party of
that political party at the State level consists of the group representing
that faction which splits away from the original political party then the
split comes into existence and is effective."

The Full Bench, in the above case, was considering the legality of the F
Order of the Deputy Speaker of Punjab Legislative Assembly whereby he
declined to declare Respondent Nos.3 and 4 as disqualified under paragraph
2 of Tenth Schedule. The said respondents were candidates put up by
Bhartiya Janata Party in assembly elections held in February 1992 in which
they were elected. According to the petitioner, these members joined Congress G
(I) party. The petitioner before the High Court was a leader of the original
political party, i.e., Bhartiya Janata Party. Legislature Party made a complaint
to Speaker to disqualify these members and stated that there was no split in
the party as claimed by Respondents 3 and 4. The Deputy Speaker, however,
held that there was split in the party and the original party had six seats and
respondents 3 and 4 constitute one-third members of the· Legislature party H
562 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A and, therefore, they are not disqualified in view of paragraph 3 of the Tenth
Schedule and their original political party would be Bhartiya Janata Party
(Punjab). The Full Bench, after rightly holding that 'the original political party
in relation to a member of the House is a political party to which he belongs'
erroneously held that 'the Parliament intended to treat the .State unit of a
B political party as a separate entity for the purpose of determining whether
there is any disqualification ofa member of the House of that State Legislature'.
In the case of split, one-third members of State Legislature belonging to that
political party must form a group to make the split effective within the State
Legislature but it does not lead to the conclusion that the Parliament intended
to treat State Unit of a political party as a separate entity for the purposes
C of the benefit of paragraph 3. Paragraph l(c) defining original political party
and explanation as given in paragraph 2( I) have already been noticed
hereinbefore. It is clear from a bare reading thereof that the elected member
belongs to the political party by which he is set up as a candidate for election
as such member. From the plain language of these provisions, it cannot be
held that for the purposes of the split, it is the State Legislature party in which
D split is to be seen. If a member is set up by a National Party, it would be
no answer to say that events at National level have no concern to decide
whether there is a split or not. In case a member is put up by a National
Political party, it is split in that party which is relevant consideration and not
a split of that political party at the State level.
E We.may also refer to the decision in G. Viswanathan v. Hon 'ble Speaker
Tamil Nadu legislative Assembly, Madras & Anr., (1996] 2 SCC 353, the
observation whereof clearly show that the relevant factor is of the political .
party by which a member is set up as a candidate for election as such member.
It would be· useful to reproduce paragraph 13 from the said judgment :
F
"Mr. Shanti Bhushan laid stress on paragraph l(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
G 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
H it is nothing but begging the question. Paragraph l (b) cannot be read
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 563

in isolation. It should be read along with paragraphs 2, 3 and 4. A
Paragraph l(b) in referring to the Legislature 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, B
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 C
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 l(b) of the Tenth Schedule."

The Punjab case is not correctly decided. D
On the facts of the present case, the Speaker was justified in coming
to the conclusion that there was no split in the original political party of the
petitioner Jagjit Singh (Writ Petition 287/2004). Likewise, in Writ Petition 292/
2004, the Speaker on consideration of relevant material placed before him
came to the conclusion that there was no split as contemplated by paragraph E
3 of the Tenth Schedule. The finding of the Speaker cannot be faulted. In
fact, letter of the petitioner dated 17th June sent to the Speaker itself shows
that what was claimed was that the Haryana unit of the Republican Party of
India effected a split in the original party on 21st December, 2003. The finding
that the claim of split was made as an afterthought to escape disqualification p
under paragraph 2( I )(a) of the Tenth Schedule cannot be held to be
unreasonable or perverse. The Speaker was justified in coming to the
conclusion that despite various opportunities, no valid proof or evidence was
placed on record by the petitioner to show that indeed a split had taken place
in the original political party, i.e., Republican Party of India on 21st December,
2003. G
It is a matter of great anguish that the mode of substituted service had
to be resorted to, to serve elected members of a Legislative Assembly.

The manner in which the matter proceeded before the Speaker after
H
564 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A complaint was filed is evident from the impugned order, relevant part whereof
reads as under :

"Notice was issued to the respondent and copies were forwarded to
him in the manner provided under Para-7 of the Rules of 1986. A
period of one month from the date of issue of the notice was given
B to the Respondent to file his reply to the Petition. However, the
record reveals that the Registered-AD letter dated 17.3.2004 containing
the notice, was received back undelivered with the report of the
serving agency (Postal Department) dated 30.3.2004. This report
when translated, stated that "the addressee is not contactable and no
one else is ready to take the registered letter and, therefore, the letter
c is being returned." The report itself mentions that the official of the
postal department visited the given address of the respondent on
25.3.2004, 26.3.2004, 27.3.2004 and 28.3.2004.

In view of this it was again ordered that the respondent be served
with the notice of the petition by Registered-AD post. Accordingly
D
Registered-AD letter dated 23.4.2004 was sent to the respondent to
submit his comments to the petition before 11.5.2004. This letter was
also received back undelivered with the accompanying report dated
5.5.2004 of the serving agency, which in tenns, was to the same effect
as the earlier report dated 30.3.2004. The report further reveals that
E the official of the postal department went to the given address of the
respondent on 27.4.2004, 28.4.2004, 29.4.2004, 30.4.2004 and 1.5.2004.
so far as the substituted service of the Respondent through SDO(C)
Palwal was concerned, the report of the same was still awaited when
the case was taken up on 11.5.2004.

F In these circumstances, it was ordered on 15.5.2004 to make another
effort to serve the respondent by sending notice, yet again, by
registered post and as well as by substituted service through
publication in two leading newspapers and the case was adjourned to
4.6.2004, by which date the respondent had been directed to file his
reply. The record reveals the notice dated 18.5.2004 through registered
G
post, along with the copy of the petition and its annexures was again
sept to the respondent asking him to furnish his reply by 4.6.2004. In
the mean time, the respondent through a letter received on 21.5.2004,
made a prayer for giving him six weeks time to file 'the reply as he had
only received the notice on 12.5.2004 whereas reply had to be given
H
-
. JAGJIT SINGH v. ST ATE OF HARY ANA [SABHARW AL, CJ.] 565
by l l.5.2004. Since a notice dated 18.5.2004 had already been sent to A
the respondent asking him to submit his reply by 4.6.2004, the request
of the respondent for giving him six weeks time could not be granted
and he was duly informed on 28.5.2004 through telegram to submit his
reply by 4.6.2004.

When the case was taken up on 4.6.2004, an applic_ation dated B
4.6.2004 was submitted by the respondent seeking permission to file
a detailed reply to the petition and four weeks more time was prayed
for this purpose as well as the opportunity of being assisted by an
advocate was asked for. Although more than sufficient time had been
granted to the respondent to furnish his comments/reply by this C
Authority and in view of the fact that by letter dated 18.5.200't he had
;
already been asked to submit his reply by 4.6.2004, therefore, no case
was made out to grant the respondent any more time. However, in
the interest of justice a final opportunity was granted to the respondent
and he was asked to submit the detailed comments on the petition
latest by 11.6.2004. An opportunity of personal hearing was also D
granted to the respondent along with the assistance of an Advocate,
if desired. On 4.6.2004, it was intimated to the respondent
telegraphically as well as by Registered Post/Courier and fax and
through SDO(C), Palwalto submit his detailed reply by l l.6.2004 and
also to appear at 11 AM on 11.6.2004 in the Haryana Vidhan Sabha
before this Authority with the assistance of an Advocate, if desired. E
Consequently, the respondent put in appearance at 11 AM on
l l .6.2004 along with his counsel Sh. Joginder Pal Sharma, Advocate
and submitted an Application dated l l .6.2004 seeking permission to
inspect the record and for obtaining the certified copies of the F
documents mentioned in Para 3 of the application. In the interest of
justice, a detailed order was passed on l l.6.2004 allowing the
application of the respondent and granting permission to him to
inspect the record and also for supply of certified copies of the
documents which were demanded by the respondent. An intimation
of the order passed by this Authority was conveyed to the respondent G
by the Secretary vide letter dated 11.6.2004 which was received by the
respondent on the same day at 5.30 pm as the record reveals. By this
letter it was also conveyed to the respondent that permission to
inspect the record at 10 AM on 14.6.2004 had also been granted. The
certified/Photostat copies as asked for by the respondent had also H
566 SUPREME COURT REPORTS [2006] SUPP. IO S.C.R.
.'
A been enclosed with the said letter. The respondent was asked to
submit his comments latest by 2 pm on 14.6.2004 and also to appear
personally with the assistance of his Advocate. The record reveals
that the inspection had indeed been done by the respondent and he
was assisted by his Advocate in the said inspection of the record.

B Instead of filing his reply on 14.6.2004, another application was
submitted by the respondent on 14.6.2004 itself seeking permission to
inspect the files of some other cases and also put a query to this
Authority regarding the procedure adopted in those cases regarding
evidence etc. The desired files/documents were got inspected to the
Respondent on 14.6.2004 which was acknowledged by the respondent
c on this above stated letter dated 14.6.2004. After completion of the
inspection, on 14.6.2004 again another application was made by the
respondent that certified copies of more documents was required by
him for filing his comments/reply to the petition."

The position is almost same in both cases.
D
Re : (b)

The words 'he and any other person' and the words 'the group' in
paragraph 3 on the plain reading shows that the benefit of paragraph 3 is not
E available to a single member legislature party. It was, however, contended
that the words 'he and any other person', in the context of a recognized single
member legislature party should be read and understood as 'he or he and any
other members of his legislature party constitute the group'. We cannot read
words in the Constitution which do not exist. The contention is that once
a single member legislature party is recognized by the Speaker, the benefit of
F paragraph 3 has to be given to the sole member representing that party as
it would be a case of I 00% representing break away group. Undoubtedly,
paragraph 2(l)(a) is subject to the provisions of paragraphs 3, 4 and 5 and
if paragraph 3 applies and ingredients thereof are satisfied the member would
not attract disqualification under paragraph 2(1 )(a). In that sense paragraph
G 3 overrides paragraph 2(1)(a). The factor that a single member legislature
party is recognized by the Speaker is of no relevance in interpreting paragraph
3 of the Tenth Schedule. In the context of the language of paragraph 3 of
the Tenth Schedule, Section 13(2) of the General Clauses Act, 1897 which
requires that unless there is anything repugnant in the subject .of context,
'words in the singular shall include the plural, and vice-versa' has no
H ,._
JAGJIT SINGH v. ST ATE OF HARY ANA [SABHAR WAL, CJ.] 567
J ..
applicability. It is, ordinarily, not the function of the Court to read words into A
a statute. The Court must proceed on the assumption that the Legislature
did not make a mistake and it intended to say what it said. It is well settled
that "the Court cannot add words to a statute or read words into it which are
not there, especially when the literal reading produces an intelligible result'
{See P.K. Unni v. Nirmala Industries & Ors., (1990) 2 SCC 378}. The B
contention is that when paragraph 3 protects when there is defection of a
group consisting of not less than one-third of the members of a legislature
party, the intention oflaw can never be to deprive such a benefit where group
is 100%. We are unable to accept this contention for more than one reason.
Firstly, there is no contradiction or ambiguity or defect or omission in paragraph
3; secondly, there is no manifest contradictions insofar as the apparent object C
of the defection law is concerned in paragraph 3 depriving the benefit of
single member legislature party; thirdly the legislature is assumed to have
known the existence of single member legislature party; and finally from the
language of paragraph 3, it is evident that the Parliament did not intend to
grant the benefit of paragraph 3 to a single person legislature party, having
regard to the object of the Constitutional amendment dealing with evil of D
defection. Advisedly, the words are 'he and other members' instead of the
words 'he or he and other members'.

The object of the Tenth Schedule is to discourage defection. Paragraph
3 intended to protect a larger group which, as a result of split in a political E
party which had set up the candidates, walks off from that party and does
not treat it as defection for the purposes of paragraph 2 of the Tenth Schedule.
The intention of the Parliament was to curb defection by a small number of
members. That intention is clear from paragraph 3 whiCh does not protect a
single member legislature party. It may"be noted that by Constitution (Ninty-
first Amendment) Act, 2003, paragraph 3 has been omitted from the Tenth F
Schedule.

Lastly, we will consider the ground of personal malafides. It is alleged
that a telephone call was made by the Speaker to the petitioners asking them
not to vote in the Rajya Sabha election. The averments made in Writ Petition
287 of2004 are: G
"That with a sense of utmost responsibility, the Petitioner states that
the Respondent No.2 had called up the Petitioner on his mobile phone
on 24.6.2004 asking the Petitioner that if he decides to abstain from
voting, then disqualification can be avoided."
H
A
568 SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R.

The Speaker has not filed any reply. lt is true that the aforesaid
-
averments have remained unrebutted.

The contention is that adverse inference should be drawn against the
Speaker and the impugned orders set aside on the ground of malafides of the
Speaker.
B
The question of drawing adverse inference in view of Speaker not
rebutting the aforesaid averments would depend upon the satisfaction of the
Court, having regard to the facts and circumstances of the case. Ordinarily,
the adverse inference can be drawn in respect of allegations not traversed,
C but there is no general rule that adverse inference must always be drawn,
whatever the facts and circumstances may be. The facts and circumstances
of the present case have already been noticed as to how the petitioners have
been avoiding to appear before the Speaker; how the proceedings were being
delayed and long adjournments sought on ground such as non-availability
of senior advocates because of court vacations. In the light of these peculiar
D facts and circumstances, a telephone call like the one alleged can mean that
further adjournment as sought for by the petitioners is possible if they do not
vote in the Rajya Sabha election on 28th June, 2004. On facts, we are unable
to draw adverse inference and accept the plea of malafides.

Before parting, another aspect urged before us deserves to be
E considered. However, at the outset, we do wish to state that the Speaker
enjoys a very high status and position of great respect and esteem in the
Parliamentary Traditions. He, being the very embodiment of propriety and
impartiality, has been assigned the function to decide whether a member has
incurred disqualification or not. In Kihata Hallahan 's judgment various great
F Parliamentarians have been noticed pointing out the confidence in the
impartiality of the Speaker and he being above all parties or political
considerations. The High office of the Speaker has been considered as one
of the grounds for upholding the constitutional validity of the Tenth Schedule
in Kihata Hallahan 's case.

G Undoubtedly, in our constitutional scheme, the Speaker enjoys a pivotal
position. The position of the Speaker is and has been held by people of
outstanding ability and impartiality. Without meaning any disrespect for any
particular Speaker in the country, but only going by some of events of the
recent past, certain questions have been raised about the confidence in the
matter of impartiality on some issues having political overtones which are
H
JAGJITSINGHv. STATEOFHARYANA[SABHARWAL,CJ.] 569
decided by the Speaker in his capacity as a Tribunal. It has been urged that A
if not checked, it may ultimately affect the high office of the Speaker. Our
attention has been drawn to the recommendations made by the National
Commission to review the working of the Constitution recommending that the
power to decide on the question as to disqualification on ground of defection
should vest in the Election Commission instead of the Speaker of the House B
concerned. Our attention has also been drawn to the views of number of
other experts, committees/commissioner to the effect that the power of
disqualification as a result of defection need to be exercised in accordance
with the opinion of the Election Commission as in the case of decision on
question as to disqualification of members provided for in Article 103 and
194(2) of the Constitution (See Anti-Defection Law and Parliamentary C
Privileges by Dr. Subhash C. Kashyap, MP. Jain's Indian Constitutional
Law, 5th Edn., Constitutional Law of India, 2nd Edn. by T.K. Tope, Reviewing
the Constitution edited by Dr. Subhash C. Kashyap & Ors., First V.M.
Tarkunde Memorial Lecture on "Indian Democracy Reality or Myth?"
delivered by Shri Soli J. Sorabjee).
D
Whether to vest such power in the Speaker or Election Commission or
any other institution is not for us to decide. It is only for the Parliament to
decide. We have noted this aspect so that the Parliament, if deemed
appropriate, may examine it, bestow its wise consideration to the aforesaid
views expressed also having regard to the experience of last number of years E
and thereafter take such recourse as it may deem necessary under the
circumstances.

As a result of the aforesaid discussions, we find no merit in the writ
petitions. Writ Petition Nos.287/2004 and 290 to 29412004 are, accordingly,
dismissed. F
K.K.T. Writ Petitions dismissed.