MAYAWATI Vs. MARKANDEYA CHAND

JUDGEMENT

(1.) I have bestowed great care in reading the two elaborate but sharply cleaving draft judgments prepared by my learned brethren, K. T. Thomas, J, and M. Srinivasan, J. resting on the provisions contained in the Tenth Schedule of the Constitution. I need to emphasise at the outset, in the context above, the importance of recording of events which take place in the House, which means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State, because Clause (b) of Paragraph 3 provides that from the time of such split, such faction shall deemingly become the political party.... The Speaker/Chairman in the nature of his role when informed of a split is administratively the time keeper and he has to be definite in respect of the time of such split. Or is there any scope for procrastination He is the Tribunal undoubtedly for quasi-judicial purpose.

(2.) In Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 : (1992 AIR SCW 3497) the majority, in Paragraph 109, has summed up the nature of the function exercised by the Speaker/Chairman under Paragraph 6 (1) to be that of a Tribunal and the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 to be confining to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. The question however as to whether a Member of the House has become subject to disqualification must arise for decision under Paragraph 6 (1) of the Tenth Schedule only on its being referred for decision of the Speaker/Chairman and not on his own, whose decision shall be final. The defence against disqualification incurred on ground of defection under Paragraph 2 is separately provided in Paragraph 3 to say that such disqualification is not to apply to a case of split. Is not the cognition of the Speaker/Chairman of the occurrence of split not administrative in nature, unconnected with decision making on disqualification, or is it an adjunct thereto Kihoto Hollohan is silent on this aspect. If the act of cognising the time of such split is the administrative function of the Speaker/Chairman, the scope of judicial review of the said administrative act would, to my mind, be qualitatively different than what it is when testing his quasi-judicial order as a Tribunal. Kihoto Hollohan, as is evident from Paragraph 111 of the Report, apparently confines to decision making by the Speaker/Chairman in Paragraph 6(1) on reference of the question of disqualification, inviting his decision, and leaves his role under Paragraph 3 untouched. These determinations of importance, in my view, are necessary to be made before the matter can be examined as to the perversity or otherwise of the Speaker's decision, obligating him at a point of time to record categorically when the split took place thereby pinning 'the time of such split'. I opine therefore that the matter be referred to the Constitution Bench for decision.

(3.) THOMAS, J:- Leave granted.