SHRI ZACHILHU AND OTHERS Vs. SHRI THENUCHO, SPEAKER, NAGALAND LEGISLATIVE ASSEMBLY, KOHIMA, NAGALAND AND OTHERS

JUDGEMENT

(1.) Five members of the Nagaland Legislative Assembly have filed writ petition, Civil Rule No. 2421 of 1990 under Art. 226 of Constitution of India seeking a writ of Mandamus directing first respondent, Speaker, Nagaland Legislative Assembly, second respondent, Secretary, Nagaland Legislative Assembly, and third respondent, State of Nagaland to cancel, withdraw or forbear from giving effect to order dated 15.12.90 passed by the first respondent, a copy of which is appended in Annexure 6, whereby he declared that the petitioners have become subject to disqualification under the Tenth Schedule of the Constitution of India.

(2.) The petitioners on 21.12.90 filed Transfer Petition (Civil) No. 40 of 1991 and the Supreme Court stayed the proceedings in this Court until further orders. Constitutionality of the ouster of jurisdiction of Courts to review order passed by Speaker under Tenth Schedule, availability of judicial review and other questions, arising in this and other similar petitions pending before several High Courts were considered and the Supreme Court through a Constitutional Bench laid down the law by order dated 12.11.91. The Supreme Court also observed that the factual controversies raised in the writ petition have to be decided by the High Court applying the law so laid down and remitted the writ petition to this High Court for disposal.

(3.) This Court by order dated 9.12.91 stayed the order of the first respondent disqualifying the petitioners as also another order dated 16.12.90 disqualifying ten other Members of the Legislative Assembly. This order was challenged before the Supreme Court in Petition for Special Leave to Appeal (Civil) Nos. 18928 of 1991 and connected SLPs. The Supreme Court has adjourned the SLPs to 17.1.92 in the hope that the writ petitions pending in the High Court may be disposed of at the earliest and directing the parties to appear before the High Court on 17.12.91 to enable the Court to fix a date of hearing. On that day the date of hearing was fixed and the case has since been heard. Factual Backdrop 4. In tire elections held in 1989 to the 60 Member Nagaland Legislative Assembly, Congress (I) Party secured 36 seats and Nagaland People's Council (NPC) secured 24 seats and Shri S.C. Jamir, the Leader of the Congress (I) Legislature Party formed the Council of Ministers. In May, 1990 on account of certain developments in the Congress (I) Legislature Party 12 MLAs broke away from the party and formed a Regional Party and two of them were expelled. The Congress (I) Ministry was dismissed on 4.5.90. The then Speaker disqualified 10 among the 12 MLAs and declared the other two to be unattached. This order is under challenge in Civil Rule No. 1778 of 1990. Thus, the effective strength of the House became 50. Shri K.L. Chishi, leader of the NPC Legislature Party with the support of 24 MLAs of NPC and two unattached MLAs formed a new Ministry on 15.5.90. On 13.6.90,17 among the MLAs of the NPC withdrew support to Shri K.L. Chishi who resigned and with their support and support of Congress (I) Party, Shri Vamuzo (a non-MLA) of NPC who was elected leader of Joint Legislative Party formed a new Ministry. He had the support of 24 Congress (I) Members and 17 members of the NPC group. On 19.7.90 the present Speaker first respondent) was elected speaker. On 9.8.90 the first respondent passed an order revoking the earlier order dated 14.5.90 disqualifying 10 Congress (I) MLAs and declaring two Congress (I) MLAs unattached. The order of disqualification as well as the order of revocation are challenged in other writ petitions. With this order, the strength of the House was restored to 60. This was followed by a formal split in the NPC. On 9.11.90 Sri Vamuzo was elected MLA. On 16.11.90, Shri Chishi was expelled from NPC and was declared unattached. The Governor on 22.11.90 summoned the Legislative Assembly to meet on 18.12.90, On 2.12.90 the Congress (I) Party with 24 MLAs withdrew support to Shri Vamuzo's Ministry. On 3.12.90 a member of the Congress (I) Legislative Party gave notice of motion expressing no confidence in the Speaker, first respondent. The motion was placed on the agenda of the House for 18.12.90. There was also a motion expressing no confidence in Sri Vamuzo Ministry. 5. On 12.12.90 the fourth respondent filed five separate petitions before the first respondent (copies are annexed to Annexure II and other documents) stating that there are reasonable grounds to believe that a question has arisen as to whether five MLAs have become subject to disqualification under the Tenth Schedule of the Constitution and that they have defected from Congress (I) Party and have therefore incurred disqualification under paragraph 2 of the Tenth Schedule, that the five MLAs have signed separate statements agreeing to cause split in their political party along with other Members of the Assembly belonging to Congress (I) Party but there is no split for want of the required one third (1/3) of the Members of the Legislature Party which is mandatory under paragraph 3 of the Tenth Schedule and requesting the first respondent to declare the MLAs have become subject to disqualification under the Tenth Schedule and cause copy of the order to be delivered or forwarded to the petitioner and the concerned Leader of the Legislature Party. Copies of the statements or declarations signed separately by the five MLAs were appended to each of the petitions filed by fourth respondent before the first respondent. These five MLAs are the writ petitioners. 6. On 14.12.90 the second respondent issued notice to each of the five writ petitioners informing them that the first respondent has received petitions as aforesaid and enclosing copies of the petition along with the notice and requesting them to meet the first respondent in his office chamber at 12 noon on 15.12.90 without fail for explaining their position. Each of the petitioners duly appeared before the first respondent in the presence of the second respondent and others and submitted identical explanations (see Annexure III) stating merely that "I have never submitted any petition to the Speaker to cause a split in the Congress (I) Legislature Party, the question of attracting clause 2 (a) of Tenth Schedule of the Constitution of India does not arise." They also submitted a letter signed by all of them stating that as desired by the first respondent, they met him in his office chamber at 12 noon on 15.12.90 in the presence of the second respondent and the Joint Secretary of the Assembly for verifying their signatures etc. and that they "were falsified". They further stated therein that there was no petition addressed by them to the first respondent for a split. 7. On the same day the first respondent passed the impugned order (Annexure VI) holding that it is clear from the declarations (copies of which were appended to the petitions against the writ petitioners) and which declarations were un-controverted, that the petitioners had decided to voluntarily give up their membership of the original political party, namely, Congress (I) Party, that the plea they have taken is not inconsistent with the plea set up in the petitions and that 5 members do not constitute ⅓rd of the original political party which had a strength of 24 in the Nagaland Assembly. First respondent, therefore, accepted the uncontroveted declarations signed by the petitioners to be true and accordingly held that the five writ petitioners have become subject to disqualification under the Tenth Schedule mf-the Constitution of India. It is this order which is now challenged. 8. Two Members of the NPC Legislature Party were expelled and the first respondent by order dated 13.12.90 declared them unattached. The first respondent by order dated 13.12.90 disqualified another set of 10 MLAs belonging to NPC on the ground of defection. Thus effectively, the strength of the Assembly was reduced to 45. The present Chief Minister, Shri Vamuzo has thus the support of 23 MLAs and Congress (I) has 19 MLAs besides three unattached Members. The 10 disqualified MLAs of NPC have filed a batch of petitions, namely, Civil Rule Nos. 110-119 of 1991. It is incidentally mentioned that the first respondent is the brother-in-law of the present Chief Minister, Shri Vamuzo and the agenda of the Assembly for 18.12.90 included consideration of the motion of no confidence against the Ministry as well as the motion of no confidence against the Speaker. X Schedule to the Constitution - Salient feature 9. Over the years strength and re-silence of parliamentary democracy in India began to be eroded by the evil of unprincipled and unethical political defections leading to frequent changes of loyalty on the part of groups of legislators, change of governments and imposition of President's Rule in States. A graphic picture of this unfortunate state of affairs is drawn at paragraphs 7 to 15 of the judgment of Jammu & Kashmir High Court in Mian Bashir Ahmed Vs. State of J & K & others, AIR 1982 J & K 26 (FB) . The Parliament ultimately stepped in and enacted the Tenth Schedule to the Constitution. The Statements of Objects and Reasons of the Constitution (Fifty Second Amendment) Act, 1985 states - "The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principle which sustain it." The object of incorporating X Schedule is to combat the evil of unprincipled political defections. 10. Para 2 of X Schedule contemplates disqualification of a member of a Legislature belong to any political party in the circumstances mentioned therein. While regarding defection as unwholesome and unwelcome, it has been recognised that differences of opinion on principles and ideology are the very essence of democracy and such differences may spur political realignments leading to splits in political parties and their legislative wings ; accordingly an attempt has been made to save legislators involved in splits in political parties by paragraph 3. Paragraph 4 is a saving provision in regard to mergers. 11. The heading of paragraph 2 is "Disqualification on ground of defection.' Paragraph 2 is subject to paragraphs 3 to 5. It contemplates two contingencies where a member of the House shall be disqualified : (1) if he has voluntarily given up his membership of the political party, or (2) if he votes or abstains from voting in such House contrary to any whip issued by the political party or any authorised authority without obtaining prior permission has not been condoned by the party or authorised authority within fifteen days from the date of such voting or abstention. Heading of paragraph 3 is ''Disqualification on ground of defection not to apply in case of split". According to paragraph 3, where a Member of a House makes a claim that he and any other members of his Legislature Party constitute a group representing a faction which arisen as a result of a split in his original political party and such group consists of not less than one-third of the members of such Legislature Party, he shall not be disqualified under paragraph 2(1), and from the time of such split, such faction shall be deemed to be the political party to which he belongs for the purposes of paragraph 2(1) and to be his original political party. 12. There is an argument advanced on behalf of the petitioners that where a group of legislators decides to cause a split within the meaning of paragraph 3 and the attempt to cause split inasmuch as strength of the group falls short of 1/3, there can be no disqualification under paragraph 2. This view cannot be accepted as correct. Tenth Schedule deals with defection by legislators. Defection by legislators is governed by paragraph 2 and such defection entails disqualification. Where defection is by a group of legislators whose strength is not less than one-third of the members of their political party, paragraph 3 provides a defence against disqualification under paragraph 2. If a group of legislators purport to create a split, their action inevitably involves voluntarily giving up membership of their original political party. In the absence of paragraph 3 legislators who indulge in such split will be subject to disqualification under paragraph 2. Where there is group action of the nature contemplated in paragraph 3, they are saved by virtue of the provisions of paragraph 3. In other words, where a legislator or a group of legislators are faced with the possibility of disqualification under paragraph 2, they can raise two defences on the merits, namely, that the conditions prescribed for disqualification under paragraph 2 do not exist in the instant case and even if paragraph 2 applies, they are entitled to protection under paragraph 3 because there is split of the nature contemplated therein. Where a group of legislators purport to cause a split but if their number falls short of 1/3 or if other conditions of paragraph 3 are not satisfied, paragraph 2 is attracted since 'split' involves voluntary giving up membership of the original political party. 13. Paragraph 6 of X Schedule confers on the Speaker or Chairman of the House, as the case may be, the power to arrive at a decision if any question has arisen as to whether a member of the House has become subject to disqualification under Schedule X, and his decision shall be final. There is special provision regarding the disqualification of the Chairman or the Speaker. Sub-paragraph (2) of paragraph 6 declares that all proceedings under sub-paragraph 1) in relation to any question as to disqualification of a member of a House under Schedule X shall be deemed to be proceedings in Parliament within the meaning of Art. 122, or in the State Legislature within the meaning of Art. 212. These Articles state that the validity of any proceedings in Parliament or State Legislature as the case may be, shall not be called in question on the ground of any alleged irregularity of procedure. Thus the decision of the Speaker or the Chairman is protected from any challenge based on an allegation of irregularity of the procedure adopted by him in arriving at the decision. 14. Paragraph 7 of X Schedule bars the jurisdiction of Courts in respect of any matter connected with the disqualification of any member. Paragraph 8 confers on the Chairman or the Speaker power to make Rules for giving effect to the provisions of the Schedule and enables the Chairman or the Speaker, inter alia, to make Rules providing for the procedure for deciding any question referred to in sub-paragraph(l)of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question. 15. Constitutionality of certain provisions of Tenth Schedule was challenged before the Supreme Court which dealt with the same by judgment dated 12.11.1991. The decision of the Constitution Bench of the Supreme Court can be summarised as follows:-