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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.469 OF 2013

(Arising out of SLP(C)No.35000 of 2012) Speaker, Orissa Legislative Assembly … APPELLANT

Vs. Utkal Keshari Parida    … RESPONDENT

WITH CIVIL APPEAL NOS.470, 471 & 472 OF 2013

(Arising out of SLP(C)Nos.35023, 35024 and 35025  of 2012)

J U D G M E N T ALTAMAS KABIR, CJI.

1. Leave granted.

2. These  Appeals  raise  an  interesting  issue  

relating to the powers of the Speaker of the Orissa

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Legislative Assembly under Rule 6(1) and (2) of the  

Members  of  Orissa  Legislative  Assembly  

(Disqualification  On  Ground  Of  Defection)  Rules,  

1987, hereinafter referred to as "the 1987 Rules",  

in the wake of paragraphs 2(1)(a) and 8 of the  

Tenth Schedule to the Constitution of India and are  

taken up together for disposal.  The facts giving  

rise  to  the  said  legal  question  are  set  out  

hereinbelow.

3. The  Appellant  herein  is  the  Speaker  of  the  

Orissa  Legislative  Assembly.   There  were  four  

elected  members  of  the  National  Congress  Party  

(NCP) in the Orissa Legislative Assembly.  All the  

said four elected members of the NCP joined the  

Biju Janata Dal (BJD), which is the Ruling Party in  

the State of Orissa.  On account of such defection,  

Respondent, Shri Utkal Keshari Parida, who is the  

President of the State Unit of the NCP in the State

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of  Orissa,  filed  four  separate  Disqualification  

Petitions before the Appellant for disqualification  

of the said four elected members of the NCP.  The  

Disqualification Petitions were placed before the  

Appellant  on  24.07.2012  and  copies  thereof  were  

forwarded  to  the  concerned  Members  of  the  

Legislative Assembly, in terms of Rule 7(3) of the  

1987 Rules.

4. Inasmuch as, the matter was being delayed, the  

Respondent  filed  Writ  Petition  (C)  No.  14869  of  

2012, before the Orissa High Court, inter alia, for  

a  direction  to  the  Speaker  of  the  Assembly  to  

dispose  of  the  Disqualification  Petitions  

expeditiously.  Before the Division Bench of the  

said High Court, an objection was taken regarding  

the  maintainability  of  the  Writ  Petition  at  the  

instance of the Respondent, who though being the  

President of the State Unit of the NCP, was not a

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Member of the Legislative Assembly, in view of the  

provisions of Sub-rule (2) of Rule 6 of the 1987  

Rules.  Rule 6 of the 1987 Rules, which is relevant  

for our purpose, is extracted hereinbelow:

"6 (1) No  reference  of  any  question as to whether a Member has  become subject to disqualification  under the Tenth Schedule shall be  made  except  by  a  petition  in  relation  to  such  Member  made  in  accordance with the provisions of  this rule.

(2) A  petition  in  relation  to  a  Member may be made in writing to  the Speaker by any other Member:

Provided  that  a  petition  in  relation  to  the  Speaker  shall  be  addressed to the Secretary.

(3) The Secretary shall:-

(a)  as soon  as may  be after  the  receipt  of  a  petition  under  the  proviso  to  sub-rule  (2)  make  a  report  in  respect  thereof  to  the  House ; and

(b)  as soon  as may  be after  the  House  has  elected  a  Member  in  pursuance  of  the  proviso  to  sub-

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paragraph (1) of paragraph 6 of the  Tenth Schedule place the petition  before such Member.

(4) Before making any petition in  relation  to  any  Member,  the  petitioner  shall  satisfy  himself  that there are reasonable grounds  for believing that a question has  arisen  as  to  whether  such  Member  has  become  subject  to  disqualification  under  the  Tenth  Schedule.

(5) Every petition:

(a)  shall  contain  a  concise  statement of the material facts on  which the petitioner relies; and

(b) shall be accompanied by copies  of  the  documentary  evidence,  if  any, on which the petitioner relies  and where the petitioner relies on  any information furnished to him by  any person, a statement containing  the  names  and  addresses  of  such  persons  and  the  gist  of  such  information  as  furnished  by  each  such person.

(6) Every petition shall be signed  by the petitioner and verified in  the manner laid down in the Code of  Civil Procedure, 1908 (5 of 1908),  for the verification of pleadings.

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(7) Every annexure to the petition  shall  also  be  signed  by  the  petitioner and verified in the same  manner as the petition."

5. Relying on the interpretation of the aforesaid  

Rule in the judgment delivered by this Court in Dr.  

Mahachandra  Prasad  Singh v.  Chairman,  Bihar  

Legislative Council and Others, [(2004) 8 SCC 747],  

the High Court came to the conclusion that the Writ  

Petition was maintainable at the instance of the  

Respondent  herein.   While  arriving  at  such  

conclusion,  the  High  Court  also  took  into  

consideration the decision in  Kihoto Hollohan v.  

Zachillhu and Others, [1992 Supp (2) SCC 651] and  

the provisions of Article 191 read with paragraph 2  

of the Tenth Schedule to the Constitution of India.

6. Interpreting the provisions of Rule 6 of the  

1987  Rules,  the  High  Court  also  took  into  

consideration  the  judgment  of  this  Court  in

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Rajendra  Singh  Rana  and  Others v.  Swami  Prasad  

Maurya and Others, [(2007) 4 SCC 270], in which  

reference had been made to another decision in the  

case of Prakash Singh Badal v. Union of India, [AIR  

1987 P&H 263].  On a consideration of the said two  

decisions and the other decisions already referred  

to  hereinbefore,  the  High  Court  came  to  the  

conclusion that it was abundantly clear that if any  

Member of the House belonging to a political party  

had  joined  another  political  party,  which  is  a  

disqualification under paragraph 2(1) of the Tenth  

Schedule,  any  person  interested  could  make  a  

reference to the Speaker under Rule 6 of the 1987  

Rules  and  it  was  not  necessary  that  such  a  

reference  had  to  be  made  by  a  Member  of  the  

Legislative Assembly.  On its aforesaid finding,  

the  High  Court  rejected  the  contentions  made  on  

behalf of the Appellant and held that the same were  

maintainable under Rule 6 of the 1987 Rules.

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7. This Appeal has been preferred by the Speaker  

of the Orissa Legislative Assembly questioning the  

aforesaid decision of the High Court.

8. Appearing in support of the Appeals, Mr. K.K.  

Venugopal, learned Senior Advocate, submitted that  

the  High  Court  had  wrongly  interpreted  the  

provisions of Sub-rules (1) and (2) of Rule 6 of  

the  1987  Rules  in  arriving  at  the  erroneous  

conclusion  that  the  Disqualification  Petitions  

under Rules 6 and 7 of the 1987 Rules could be made  

not  only  by  Members  of  the  House,  but  by  any  

interested person also.  Mr. Venugopal urged that  

the language of Sub-rule (2) of Rule 6 of the 1987  

Rules clearly indicates that it is only a Member of  

the  House,  who  in  relation  to  a  petition  for  

disqualification of another Member, could apply to  

the Speaker.  Mr. Venugopal urged that giving any  

other interpretation to the said provisions would

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do violence to and be contrary to the intention  

contained  in  Rule  6  of  the  1987  Rules.  Mr.  

Venugopal urged that after the impugned judgment  

was delivered by the High Court, the matter was  

referred  by  the  Speaker  to  the  Committee  of  

Privileges of the House on 15.10.2012 under Rule  

7(4) of the 1987 Rules.  The meeting of the said  

Committee  was  convened  on  22.12.2012,  but  no  

business  could  be  conducted  in  the  meeting  on  

account of lack of quorum.

9. On  2.1.2013,  a  meeting  of  the  Committee  of  

Privileges was convened to finalise the modalities  

for hearing of the Disqualification Petitions filed  

on behalf of the Respondent.  However, before the  

matter  came  to  be  decided  by  the  Committee  of  

Privileges, the Special Leave Petition was filed to  

set aside the judgment of the Division Bench of the  

Orissa High Court holding that the Disqualification

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Petitions were maintainable at the instance of a  

non-Member of the House.

10. Mr. Venugopal urged that in the light of the  

explicit language used in Sub-rule (2) of Rule 6 of  

the  1987  Rules,  framed  by  the  Speaker  of  the  

Assembly under paragraph 8 of the Tenth Schedule to  

the Constitution, the High Court was clearly wrong  

in interpreting the said provisions so as to allow  

an application for disqualification of a Member of  

the House to be made by a person who was not a  

Member thereof.  Mr. Venugopal submitted that the  

Order  of  the  High  Court  was  contrary  to  the  

provisions of law and was liable to be set aside.

11. On  the  other  hand,  Mr.  Amarendra  Sharan,  

learned Senior Advocate, who appeared for the sole  

Respondent  who  had  made  the  application  for  

disqualification  of  the  four  Members  before  the  

Speaker, submitted that the four MLAs who had been

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elected on the nomination of the NCP, joined the  

Biju  Janata  Dal  on  5.6.2012,  without  giving  any  

prior notice of their intention to do so and that  

they had voluntarily given up the membership of the  

NCP  by  joining  the  BJD,  thereby  incurring  

disqualification as Members of the Assembly under  

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

Constitution.

12. Mr. Sharan also submitted that the action of  

the said four MLAs did not amount to a merger of  

the NCP Legislature Party with the Biju Janata Dal  

on account of the fact that a merger could only be  

of  a  political  party  with  any  other  political  

party.  Mr. Sharan submitted that the legislature  

party  of  a  political  party  by  itself  had  no  

authority  or  power  to  merge  with  any  other  

political party, without the merger of its original  

political  party.  In  such  circumstances,  the

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

Schedule  to  the  Constitution  were  squarely  

attracted to the facts of this case and the same  

had  merely  to  be  brought  to  the  notice  of  the  

Speaker for him to hold that the said four MLAs  

stood  disqualified  from  the  membership  of  the  

House.   

13. On  the  question  of  the  locus  standi of  the  

Respondent  to  maintain  the  writ  petition  in  his  

capacity as the President of the State unit of the  

NCP in the State of Orissa, Mr. Sharan submitted  

that the said question was no longer res integra in  

view of the decision rendered by this Court in the  

case of  Dr. Mahachandra Prasad Singh (supra), in  

which  reference  had  been  made  to  a  Full  Bench  

decision of the Punjab and Haryana High Court in  

the  case  of  Prakash  Singh  Badal (supra).   Mr.  

Sharan submitted that the Full Bench of the Punjab

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& Haryana High Court had considered the question,  

which has also arisen in this case, and it had held  

that paragraph (2)(1)(a) of the Tenth Schedule did  

not  contemplate  or  visualize  that  the  

disqualification incurred by a Member of the House  

would  have  to  be  brought  to  the  notice  of  the  

Speaker only by a Member of the House.  Mr. Sharan  

submitted that the Full Bench had also indicated  

that  in  relation  to  paragraph  6  of  the  Tenth  

Schedule, the only prerequisite is the existence of  

a question of disqualification of a Member.  Such a  

question could be raised before the Speaker by an  

interested  person  for  declaring  that  the  said  

Member stood disqualified from being a Member of  

the House.  It was in that context that in the  

instant case the Speaker had held that when any  

Member  belonging  to  a  political  party  joined  

another  political  party,  which  amounted  to  

disqualification  under  paragraph  2(1)(a)  of  the

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Tenth Schedule, any person interested could make a  

reference to the Speaker under Rule 6 and it was  

not necessary that such reference would have to be  

made only by a Member of the Legislative Assembly.  

Mr.  Sharan  submitted,  that  as  indicated  by  this  

Court in  Dr. Mahachandra Prasad Singh's case, as  

President, NCP, the Respondent had the locus standi  

to  maintain  his  application,  both  before  the  

Speaker, as well as before the High Court.   

14. Mr.  Sharan  submitted  that  any  other  

interpretation given to the provisions of paragraph  

2(1)(a) read with Rule 6 (1) and (2) of the 1987  

Rules, would defeat the very object and purpose of  

the Tenth Schedule to the Constitution.   

15. On a consideration of the submissions made on  

behalf of the respective parties, we are unable to  

agree with the interpretation sought to be given by  

Mr. Venugopal to the provisions of Rule 6 of the

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1987 Rules read with paragraph 2(1)(a) of the Tenth  

Schedule  to  the  Constitution  on  the  question  of  

locus standi of the Respondent, as the President of  

the State unit of the National Congress Party in  

the  State  of  Orissa,  to  file  the  application  

seeking disqualification of the four Members of the  

National  Congress  Party  who  had  switched  their  

loyalties to the Biju Janata Dal.   

16. Although,  paragraph  8  of  the  Tenth  Schedule  

vests the Speaker of the House with powers to make  

rules for giving effect to the provisions of the  

Tenth Schedule, the Rules framed under such powers  

would amount to delegated legislation which cannot  

override  the  substantive  provisions  of  the  

Constitution contained in the Schedule itself.  The  

provisions of Sub-Rules (1) and (2) of Rule 6 of  

the 1987 Rules cannot override the provisions of  

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

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Constitution or for that matter, paragraph 6 which  

vests the Speaker of the House with the authority  

to decide the question as to whether a Member of a  

House had become subject to disqualification under  

the  Schedule.   Although,  Rule  6(2)  of  the  1987  

Rules provides that a petition in relation to a  

Member for the purposes of Sub-Rule (1) may be made  

in writing to the Speaker by any other Member, such  

a provision is neither contemplated nor provided  

for in the Tenth Schedule itself.  As has been  

submitted by Mr. Amarendra Sharan, learned Senior  

Advocate  for  the  Respondent,  in  a  case  such  as  

this, where all the four Members elected to the  

Assembly  from  the  National  Congress  Party  had  

changed their allegiance from the National Congress  

Party to the Biju Janata Dal, there would be no one  

to bring such fact to the notice of the Speaker and  

ask for disqualification of the said Members who  

clearly stood disqualified under the provisions of

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the  Tenth  Schedule.   In  other  words,  although,  

disqualified under paragraph 2(1)(a) of the Tenth  

Schedule,  in  the  absence  of  any  application  for  

disqualification  to  the  Speaker,  they  would  

continue to function as Members of the Assembly,  

which was not the intent of or the object sought to  

be  achieved  by  the  52nd  Amendment  by  which  the  

Tenth Schedule was introduced in the Constitution.  

17. The Statement of Objects and Reasons of the  

Bill, which finally became the Constitution (52nd  

Amendment) Act, 1985, whereby the Tenth Schedule  

was added to the Constitution with effect from 1st  

March, 1985, inter alia, indicated that the evil of  

political defection had become a matter of national  

concern and if it was not checked, it could very  

well undermine the very foundation of our democracy  

and the principles which sustain the same.  In such  

event, if the provisions of the Tenth Schedule are

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interpreted  to  exclude  the  right  of  any  person  

interested to bring to the notice of the Speaker of  

the House the fact that any or some of  its Members  

had incurred disqualification from the membership  

of the House on any of the eventualities indicated  

in paragraphs 2 and 4 therein, it would render the  

inclusion of the Tenth Schedule to the Constitution  

otiose and defeat the objects and intent of the  

52nd Amendment of the Constitution.  

18. The  conundrum  presented  on  account  of  the  

provisions  of  the  Tenth  Schedule  in  addition  to  

Rules 6(1) and (2) of the 1987 Rules had fallen for  

consideration  in  Dr.  Mahachandra  Prasad  Singh's  

case (supra).  Speaking for the Bench, G.P. Mathur,  

J.  (as  His  Lordship  then  was),  observed  in  

paragraph 16 of the judgment that the purpose and  

object  of  the  Rules  framed  by  the  Chairman  in  

exercise  of  power conferred by paragraph 8 of the

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Tenth Schedule was to facilitate the Chairman in  

discharging  his  duties  and  responsibilities  in  

resolving any dispute as to whether the Member of  

the House had become subject to disqualification  

under the Tenth Schedule.  It was also observed  

that the Rules being in the domain of procedure,  

were  intended  to  facilitate  the  holding  of  an  

inquiry and not to frustrate or obstruct the same  

by the introduction of innumerable technicalities.  

Being subordinate legislation, the Rules could not  

make any provision which could have the effect of  

curtailing the content and scope of the substantive  

provision, namely, the Tenth Schedule.

19. The aforesaid observation is precisely what we  

too have in mind, as otherwise, the very object of  

the  introduction  of  the  Tenth  Schedule  to  the  

Constitution  would  be  rendered meaningless.  The

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provisions of Sub-rules (1) and (2) of Rule 6 of  

the 1987 Rules have, therefore, to be read down to  

make it clear that not only a Member of the House,  

but any person interested, would also be entitled  

to bring to the notice of the Speaker the fact that  

a Member of the House had incurred disqualification  

under  the  Tenth  Schedule  to  the  Constitution  of  

India.  On receipt of such information, the Speaker  

of  the  House  would  be  entitled  to  decide  under  

paragraph 6 of the Tenth Schedule as to whether the  

Member  concerned  had,  in  fact,  incurred  such  

disqualification and to pass appropriate orders on  

his findings.

20. We, accordingly, dismiss all the appeals and  

uphold  the  judgment  of  the  High  Court  impugned  

therein.

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21. In the facts and circumstances of the case,  

there will be no order as to costs.      

...................CJI.    (ALTAMAS KABIR)

.....................J.  (J. CHELAMESWAR)

.....................J.  (VIKRAMAJIT SEN)

New Delhi Dated: January 17, 2013.