Jaswant Singh Gurjar Vs Hon'ble Speaker, Rajasthan Vidhansabha

@JUDGMENTTAG-ORDER

Mahesh Chandra Sharma, J.@mdashThis writ petition has been filed by the Petitioner Jaswant Singh Gurjar, who is former MLA and a resident of Dholpur in Rajasthan, under Articles 226 and 227 of the Constitution of India with the following prayer:

a. That this Hon''ble Court may direct the Respondent No. 1 Hon''ble Speaker of the Rajasthan State Legislative Assembly, Jaipur to decide the application of the Petitioner applicant seeking releasing of petition No. 1/2009 for its adjudication by the Hon''ble High Court on the next date of hearing 3-5-2010 (last date 26-2-2010) and thereafter conduct the proceedings on day-to-day basis if need be.

b. That in case of Hon''ble Court reaching to a satisfaction that Hon''ble Speaker will not comply with the direction within the time appointed for the purpose, the petition No. 1/2009 may kindly be ordered to be withdrawn to this Hon''ble Court and thereafter decide by this Hon''ble Court in view of the position of law settled by the Hon''ble Supreme Court in the case of Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others,

c. Any other relief or order which your honour may deem fit to be given to the Petitioner in the facts and circumstances of the case, may kindly also be given.

2. Brief facts of the case are that the Petitioner submitted a petition under para 2(1) of Schedule X and Article 191 of the Constitution of India on 21-4-2009 before the Respondent No. 1 Hon''ble Speaker, Rajasthan State Legislative Assembly seeking disqualification of one Mr. Giriraj Singh Mallinga, who was elected as MLA for the 13th House of Rajasthan State Legislative Assembly in December 2008, from Bari Constituency. It has been stated that Mr. Giriraj Singh Mallinga had voluntarily given up the membership of his original political party BSP which had set him up as a candidate in the elections for the 13th Assembly of Rajasthan in December 2008 from Bari Constituency on 4-4-2009 and therefore the disqualification prescribed under para 2(1) of the Schedule X was squarely attracted and he deserved to be disqualified by the Hon''ble Speaker in exercise of powers vesting in him under para 6 of the Schedule X. The Petitioner further submits that the protection of provisions prescribed in para 4 of the schedule X were not available to Mr. Giriraj Singh Mallinga (hereinafter referred to as the defecting MLA) because the para 4(1) needed merger of the original political party into the other political party and for the purpose of para 4(1) the merger was permissible and come into operation only as per para 4(2) if not less than two thirds of the members of legislative party of the concerned MLA in the house have agreed to "such merger" as prescribed in para 4(1) of the X Schedule.

Paras 2(1) and 4 of Schedule X read as under:

2. Disqualification on ground of defection (1) Subject to the provisions of paragraphs 2 [***], 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.

4. Disqualification on ground of defection not to apply in case of merger.-(1) A member of a House shall not be disqualified under sub-paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party-

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

3. It is stated that after filing of the petition before the speaker on 21-4-2009, the Petitioner came to know through newspapers in the month of May 2009 that the Speaker held the action of the MLA impugned therein in leaving his original political party and joining Indian National Congress as legally tenable and the application filed by the Petitioner is pending adjudication before the Hon''ble Speaker and the Hon''ble Speaker is not passing the order on the application filed by the Petitioner and arbitrarily fixed 3-5-2010. The Petitioner stated that under these compulsive circumstances he filed an application before the Hon''ble Speaker at the first available opportunity i.e. on the date of first hearing, which took place on 7-7-2009 praying for releasing the petition No. 01/2009 submitted on 21-4-2009 earlier under Schedule X and Article 191 of the Constitution of India for its adjudication by the Hon''ble High Court.

4. This Court on July 7, 2010 after hearing the contentions of the Petitioner passed the following order and served copy of this petition to Advocate General to assist the Court in the matter:

One of the contentions advanced is that petition was filed under Article 191 read with tenth Schedule of the Constitution of India before the Hon''ble speaker on 21-4-2009 but for one or the other reason the matter has been deferred and his grievance has not been redressed so far, which has compelled the Petitioner to approach this Court seeking direction for disposal of the petition filed by him.

Copy of the petition be served upon Advocate General to assist the Court in the matter.

List on 19-7-2010 showing the name of the Advocate General in the cause list.

5. On 19-7-2010, this Court asked the learned Counsel for the Petitioner to submit his view point whether this Court can issue notice to the Hon''ble Speaker in such matters. Four weeks time was allowed to the counsel.

6. This Court on 17-8-2010, heard the learned Counsel for the Petitioner Shri Hemant Nahta and Shri G.S. Bapna, Advocate General on the question of issuing notice of this petition to Hon''ble Speaker of the Rajasthan State Legislative Assembly.

7. On 27-7-2010, the learned Counsel for the Petitioner filed a detailed submission of legal position in compliance of order dated 19-7-2010 passed by this Court. The learned Counsel for the Petitioner placed reliance on Shri Kihota Hollohon Vs. Mr. Zachilhu and others, I. Manilal Singh Vs. Dr. H. Borobabu Singh and another, Rameshwar Prasad and Others Vs. Union of India (UOI) and Another, Raja Ram Pal Vs. The Hon''ble Speaker, Lok Sabha and Others, Jagjit Singh Vs. State of Haryana and Others, Syed Yakoob Vs. K.S. Radhakrishnan and Others, , Surya Dev Rai Vs. Ram Chander Rai and Others, : Surya Dev Rai Vs. Ram Chander Rai and Others, Trimbak Gangadhar Telang and Another Vs. Ramchandra Ganesh Bhide and Others, and Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others, : Sri Rajendra Singh Rana and Others Vs. Swami Prasad Maurya and Others, decisions.

8. Mr. G.S. Bapna, Advocate General relied on the cases reported in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, and Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, He has further drawn attention of this Court on Articles 122 and 212 of the Constitution of India.

9. Articles 122 and 212 of the Constitution of India read as under:

122. Courts not to inquire into proceedings of Parliament.- (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business or for maintaining order, in Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

212. Courts not to inquire into proceedings of the Legislature.- (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

10. Article 122 of the Constitution of India specifically gives bar to the Courts not to inquire into proceedings of Parliament. Proviso (1) of Article 122 specifically provides that the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. Similar is the position with regard to Article 212 wherein also there is a bar that the Courts not to inquire into proceedings of the Legislature. It is specifically provided in proviso (1) of Article 212 that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.

11. In Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, the Hon''ble Apex Court in para 9 relying on the decision of Apex Court in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, held as under:

9. The constitutional validity of the provisions contained in the Tenth Schedule came up for consideration before a Constitution Bench of this Court in Shri Kihota Hollohon Vs. Mr. Zachilhu and others, . The Court was unanimous in holding that paragraph 7 completely excludes jurisdiction of all Courts including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 in respect of any matter connected with the disqualification of the member of a House and the Bill introducing the said amendment required ratification by the State Legislatures under the proviso to Article 368(2) of the Constitution and that no such ratification was obtained for the Bill. There was, however, difference of opinion on the effect of such non-ratification of the Bill. The majority view was that paragraph 7 alone attracts the proviso to Article 368 and the rest of the provisions of the Bill do not require such ratification and since paragraph 7 is severable from the rest of the provisions, paragraph 7 only was unconstitutional and that the rest of the provisions of the Tenth Schedule cannot be struck down as unconstitutional on the ground that the Bill had not been ratified by one-half of the State Legislatures before it was presented to the President for his assent. The minority view, however, was that the entire Bill required prior ratification by State Legislatures without which the assent of the President became non est and that the question of severability of paragraph 7 from the rest of the provisions does not arise and further that paragraph 7 was not severable from the rest of the provisions of the Bill. Since the validity of the rest of the provisions, excluding paragraph 7, have been upheld by the majority, the provisions of paragraph 6 have been construed in the majority judgment and it has been held (SCC pp. 711-712, para 111); (para 42 of AIR):

That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the speaker or chairman is a judicial power.

That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairman is valid. But the concept of statutory finality embodied in paragraph 6(1) does not detract from or abrogate judicial revision under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in In the matter of: Under Article 143 of the Constitution of India, to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words ''be deemed to be proceedings in Parliament'' or ''proceedings in the Legislature of a State'' confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quiatimet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

(Underlining mine)

12. As per the ratio laid down in Ravi S. Naik and Sanjay Bandekar Vs. Union of India and others, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. In the instant case the Speaker has not passed any orders on the petition filed by the Petitioner and the petition is still pending before him.

13. In Shri Kihota Hollohon Vs. Mr. Zachilhu and others, the Apex Court framed point (E) that the deeming provision in paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court. In this case the Apex Court in paras 110 and 111 held as under:

110. In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Now would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.

111. In the result, we hold on contentions (E) and (F):

That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power.

That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodies in paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, noncompliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in In the matter of: Under Article 143 of the Constitution of India, to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words ''be deemed to be proceedings in Parliament'' or ''proceedings in the legislature of a State'' confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

14. In the above case also the Apex Court specifically held that judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. It is an admitted fact that the petition is pending before the Hon''ble Speaker and it is a prior stage to the making of a decision by the Speaker and thus at this stage this Court cannot issue notice of this petition to the Speaker. It is not proper for this Court to issue notice of this petition to the Speaker who is one of the Constitutional functionary. Thus the petition fails and deserves to be rejected.

15. For the reasons mentioned above, this writ petition fails and is hereby dismissed in limine.