Amar Singh vs Union Of India

2

matters and identical relief has also been sought

for.

2. Both the writ petitioners were formerly members

of the Samajwadi Party, of which Shri Mulayam Singh

Yadav is the President. While Shri Amar Singh was

one of the senior-most members of the party and had

also held the post of All India General Secretary

and was its National Spokesperson and had also been

a Member of the Rajya Sabha for three terms, Ms.

Jaya Pradha is also a prominent political leader who

was elected to the Lok Sabha from the State of Uttar

Pradesh and was elected for a Second Term to the Lok

Sabha as a Member of the Samajwadi Party. Earlier,

she had also been a Member of the Rajya Sabha from

the said party.

3. In addition to the above, Shri Amar Singh is

also a member of four different Parliamentary

Committees and Ms. Jaya Pradha is a member of one

such Committee.

3 4. The case made out by Shri Amar Singh is that on

account of medical reasons and other personal

difficulties he was constrained to resign from the

posts of General Secretary and National Spokesman of

the Samajwadi Party on 6th January, 2010. He,

however, continued to be a member of the party till

he was expelled therefrom on 2nd February, 2010.

Thereafter, he was treated as an Independent Member

of Parliament (MP) which will be evident from a

glance at the alphabetical list of Members of the

Rajya Sabha maintained by Parliament, produced on

Shri Amar Singh's behalf.

5. The common case of both the writ petitioners is

that they have had to approach this Court under

Article 32 of the Constitution in view of the

imminent threat to their continuance as Members of

Parliament, both Rajya Sabha and Lok Sabha, in view

of the decision of this Court in the case of G.

Viswanathan vs. Hon'ble Speaker Tamil Nadu

4

Legislative Assembly, Madras & Anr. [(1996) 2 SCC

353].

6. In the said case this Court was called upon to

consider, inter alia, the effect of paragraph

2(1)(a) and Explanation (a) thereto in the Tenth

Schedule to the Constitution of India with regard to

members of political parties who are expelled

therefrom and have not voluntarily given up their

membership of such political party. What also fell

for consideration is Explanation (a) which provides

that for the purposes of paragraph 2(1) an elected

Member of a House shall be deemed to belong to the

political party, if any, by which he was set up as a

candidate for election as such Member.

7. In considering the said question, this Court

held that in view of the Explanation to Paragraph

2(1)of the Tenth Schedule, even if a member is

expelled from his party, for the purposes of the

Tenth Schedule, he/she would not cease to be a

5

member of the political party that had set him up as

a candidate for the election and he would continue

to remain attached to that political party even if

he is treated as "unattached".

8. This Court, inter alia, held that when a person

who has been thrown out or expelled from the party

which set up him as a candidate and was ultimately

elected, joins another party, it would certainly

amount to his voluntary abandonment of the

membership of the political party which had set him

up as a candidate for election as such Member. It

was held that if he, on his own volition, joined

another political party, he must be taken to have

acquired the membership of the other political party

by abandoning the political party to which he

belonged or must be deemed to have belonged under

the Explanation to Paragraph 2(1) of the Tenth

Schedule.

6 9. It was further held that Paragraph (1)(b) of the

Tenth Schedule cannot be read in isolation and had

to be read with Paragraphs 2, 3 and 4 thereof. It

was also observed that Paragraph 2(1) read with the

Explanation clearly pointed out that an elected

Member would continue to belong to that political

party by which he was set up as a candidate for

election as such Member. This is so notwithstanding

the fact that he had been thrown out or expelled

from that party. It was explained that that was a

matter between the Member and his party and had

nothing to do so far as the deeming clause in the

Tenth Schedule is concerned. In other words, the

action of a political party in relation to its

member has no significance and cannot impinge on the

fiction of law under the Tenth Schedule. This Court

went on further to hold that labeling of a Member as

"unattached" finds no place nor has any recognition

in the Tenth Schedule and the classification of the

Members in the Tenth Schedule proceeds only on the

7

manner of their entry into the House, namely, (1)

one who has been elected on his being set up by a

political party as a candidate for election as such

member; (2) one who has been elected as a member

otherwise than as a candidate set up by any

political party -- usually referred to as an

`independent' candidate in an election; and (3) one

who has been nominated. It was also held that it is

impermissible to invent a new category or clause

other than the one envisaged or provided in the

Tenth Schedule of the Constitution. In that view of

the matter, this Court came to the conclusion that

the deeming fiction indicated in Explanation (a) to

Paragraph (2) of the Tenth Schedule has to be given

full effect as otherwise the expelled Member would

escape the rigour of the law which was intended to

curb the evil of defections which has polluted our

democratic polity.

8 10. Mr. Harish N. Salve, learned Senior Advocate

appearing for Shri Amar Singh, urged that it was not

the legislative intent to bring persons, who are

expelled from their political party, within the

ambit of the Tenth Schedule and that the same would

be evident from the parliamentary debates which

followed the tabling of the Bill, which ultimately

resulted in the introduction of the Tenth Schedule

in the Constitution. Mr. Salve referred to the

Parliamentary Debates relating to the Constitution

(52nd Amendment) Bill, 1985, by which the Tenth

Schedule was introduced in the Constitution. In the

Draft Bill, besides Clauses (a) and (b) to Paragraph

(1) of the Tenth Schedule, Clause (c) had also been

included, which reads as follows :

"(c) if he has been expelled from such

political party in accordance with the

procedure established by the Constitution,

rules or regulations of such political

party."

9 11. Mr. Salve submitted that the said clause was the

subject matter of heated debate when the Bill was

tabled in the Parliament and moved by the then Law

Minister, Mr. Ashok Sen. In fact, Mr. Sen in his

speech, while introducing the Bill, omitted the said

clause from the Bill which later on became the Tenth

Schedule to the Constitution. Mr. Salve drew our

attention to the statement made by Shri Sharad

Dighe, who, while supporting the Bill, objected to

the inclusion of Clause 2(1)(c) in the Bill in the

following terms:

"Now, there have been several clauses in this

Bill and I am happy that the Law Minister has

also announced that two of the clauses are to be

amended. As far as clause 2 sub-clause (1)

paragraph (C) is concerned, that has to be

deleted and paragraph (b) has to be amended

suitably. It was very much necessary to delete

paragraph (c) because if a Member has to be

expelled from a political party in accordance

with the procedure for anything done outside the

House, it would have created several practical

problems and it would have given a handle

especially to the bosses of similar parties;

where this paragraph would have created some

difficulties. Therefore, the main principle of

this disqualification is that for something

10

which a Member does in this House, in the

presence of the Presiding Officer such as voting

against the Party or abstaining from voting

against the direction of the Party. Now this is

something which is proved beyond doubt. No

other enquiry is by any other committee or

anybody else. So it is very clear that any act

done by a member in the presence of a Presiding

Officer, namely, voting or abstaining from

voting would entail him to this

disqualification. So there is no chance or any

injustice being done nor is there any scope for

any doubt whether he has committed that act or

not. Therefore, from that point of view, acts

done outside the House have been deleted or are

proposed to be deleted now because there would

have been the question of proving them. Some

doubt may arise and there will be questions of

giving a hearing to that member also and rules

of natural justice would have also to be

followed."

12. Mr. Salve urged that in G. Viswanathan's case

(supra) the introduction of the Bill comprising the

Constitution Fifty-second Amendment which led to the

introduction of the Tenth Schedule in the

Constitution, was probably not considered since the

intention of including clause (c) in paragraph 2 of

the Tenth Schedule was subsequently dropped. In

G. Viswanathan's case (supra), in order to give a

11

status in the House to Members expelled from their

parties, the Court treated such Members at par with

those who had voluntarily resigned their membership

from such party by applying the provisions of the

Explanation to paragraph 2(1) of the Tenth Schedule,

which, in fact, was not the intention of the

legislature. Submitting that the decision rendered

in G. Viswanathan's case (supra) had highly

prejudicial consequences for persons expelled from

the membership of a political party, which was not

the intention of the legislature, and had been so

expressed in the debates in respect of the Bill, Mr.

Salve contended that the decision in the said case

required a re-visitation of the law. Mr. Salve also

urged that the consequences of what had been

propounded in G. Viswanathan's case (supra) would

have dangerous portents if a Member, properly

elected by the voters of a particular constituency,

could be deprived of his membership of the House

merely on the whims and fancies of the leaders of

12

his party even though he may not have voluntarily

resigned from the party which would then have

attracted the provisions of paragraph 2(1)(a) of the

Tenth Schedule to the Constitution.

13. Mr. K.K. Venugopal, learned Senior Advocate, who

appeared for Ms. Jaya Pradha, while adopting and

reiterating the submissions of Mr. Salve, submitted

that on account of the decision in G. Viswanathan's

case (supra), even an expelled Member stood exposed

to the party whip in the House, if he was to be

deemed to be, for all practical purposes, a member

of the said party which had expelled him, in the

House.

14. We had requested the learned Attorney General to

assist the Court in the matter and he has also

concurred with the submissions made on behalf of the

writ petitioners that the decision in

G. Viswanathan's case (supra) required a second

look.

13 15. We are also convinced that in the background of

the legislative history of the introduction of the

Tenth Schedule in the Constitution, in which it was

initially intended to include expelled Members

within the ambit of the provisions relating to

disqualification, the same was dropped after the

debate in Parliament in which the dangerous effects

of the inclusion of such a sub-clause were pointed

out by many of the Members in the House. If it was

the intention of the legislature not to include

expelled members of a political party within the

category of persons who could be clubbed with the

category of persons who voluntarily resigned from

membership of their parties, the same could not have

been imported into the Tenth Schedule by virtue of

the judicial pronouncement in the said case. In

fact, what was sought to be excluded by the

legislature has now been introduced into the Tenth

Schedule by virtue of the said decision.

14 16. We are also convinced that the decision in G.

Viswanathan's case (supra) merits another look as

far as the Members of the House who are expelled

from their parties on whose banner they had been

elected to the House, are concerned, as they would

be left completely vulnerable to the whims and

fancies of the leaders of their parties. We,

therefore, issue Rule in the two Writ Petitions and

request Hon'ble the Chief Justice of India to refer

the matter to a larger Bench on the following

questions :-

1. What is the status in either House of

Parliament or the State Legislatures of a

Member who is expelled from the party which set

him/ her up as a candidate for election ?

2. Will the provisions of the Tenth

Schedule to the Constitution apply to such

Member ?

15 3. Was the view taken in G.

Viswanathan's case [(1996) 2 SCC 353], with

regard to the status of Members in either

House of Parliament who had not voluntarily

resigned from their party but had been

expelled therefrom, in harmony with the

provisions of the Tenth Schedule to the

Constitution ?

4. In view of the fact that Members of

the two Houses of Parliament, who are expelled

from the membership of the parties which had

set them up as candidates in the election, are

not referred to in the Tenth Schedule to the

Constitution, was the decision in G.

Viswanathan's case that they must be deemed to

continue to belong to such party in view of

Explanation (a) to paragraph 2(1) of the Tenth

Schedule, a correct interpretation of the said

provisions, having regard to the Parliamentary

16

debates on the Bill which became the Tenth

Schedule ?

5. Can Explanation (a) to paragraph 2(1)

of the Tenth Schedule to the Constitution be

extended to include Members of the two Houses

of Parliament who are expelled from their

parties?

6. When a Member of either House of

Parliament is expelled by the party which had

set him up as a candidate for election and he

either joins another political party or forms

his own party, can it be said that he had

voluntarily given up his membership of the

party in view of the legal fiction created by

Explanation (a) to paragraph 2 (1) of the Tenth

Schedule ?

17 7. What is the status of an "unattached"

Member in either House of Parliament or in the

State Legislatures ?

17. Pending the reference, the decision in G.

Viswanathan's case (Supra) shall not be applied to

the two writ petitioners, Shri Amar Singh and Ms.

Jaya Pradha.

18. Let the records of the two writ petitions be

transmitted to the Secretariat of Hon'ble the Chief

Justice immediately.

................................................J.

(ALTAMAS KABIR)

.............................................J.

(CYRIAC JOSEPH)

November 15, 2010

New Delhi