- (1.) Heard Mr. C.U. Singh, learned senior counsel along with Mr. Rohit Alex, learned counsel for the petitioner.
(2.) This writ petition is preferred under Article 32 of the Constitution of India. The petitioner has prayed for the following reliefs :- "(a) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction for declaring that the provisions of the 10th Schedule to the Constitution, namely para 2 do not apply to an elected member of a House who has been expelled by his/her political party; or (b) Declare the provisions of 10th Schedule to the Constitution, to the extent that para 2 applies to an expelled member, to be violative of the asic structure of the Constitution; or (c) In the alternative, declare that the petitioner having been expelled by the Samajwadi Party, his conduct would no longer fall within the acts that constitute a disqualification within the meaning of para 2(1)(a) and para 2(1)(b) of the Tenth Schedule to the Constitution. (d) pass any such other order and/or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
(3.) Having heard Mr. C.U. Singh, learned senior counsel, we are of the considered opinion that prayer (b) does not require to be considered by this Court and the same need not be adverted to. What is required to be adverted to is whether Para 2 of the Tenth Schedule to the Constitution would apply to the elected member who has been expelled from the political party. Paragraph 2 of the Tenth Schedule reads as follows :- (2) Disqualification on ground of defection.-(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House- (a) if he has voluntarily given up his membership of such political party; or (b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Explanation.-For the purposes of this sub-paragraph,- (a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member; (b) a nominated member of a House shall,- (i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party; (ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188. (2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election." ;