JAGllTSINGH v. STATE OF HARYANA AND ORS.

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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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

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, 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 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 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.