IMKONG IMCHEN Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) After more than two decades of enactment of Tenth Schedule in the Constitution of India by way of Fifty-second Amendment in the year 1985, sub-paragraph (2) of paragraph 2 of the Tenth Schedule has been assailed being ultra vires of the Constitution. The appellant herein, along with three other persons, filed a writ petition under Art. 226 of the Constitution of India seeking a declaration that the above portion of the 10th Schedule of the Constitution of India is unconstitutional being violative of basic structure of the same. The writ petition was registered as WP(C) No. 148 (K) of 2004, which came to be dismissed on 28.7.2005. The learned Single Judge has held that sub-para (2) of paragraph 2 of the Tenth Schedule is neither discriminatory nor violative of the basic structure of the Constitution of India and it is very much within the purview of its constitutional validity. Being aggrieved with this judgment, one of the writ petitioners has filed the present writ appeal.

(2.) We have heard Mr. Leonard Aier, learned Counsel for the appellant. The Union of India (respondents No. 1 and 2) were represented by Shri A. Zhimomi, learned Asstt. Solicitor General and the State of Nagaland (respondent No. 3) was represented by Shri L.S. Jamir, learned Govt. Advocate. They were also heard. The remaining three writ petitioners were also impleaded as pro forma respondents but none of them showed any interest either to support the appellant or to challenge the impugned judgment of the learned Single Judge.

(3.) Shri Aier, learned Counsel for the appellant reiterated his argument advanced in the writ petition that paragraph 2(2) of the Tenth Schedule has imposed unreasonable restriction on the elected independent members of Legislative Assemblies by way of dis-allowing them to join any political party. According to the learned Counsel, under paragraph 2(3) of the same Schedule, nominated members of a house have been given the privilege and liberty to join apolitical party, albeit, within a period of six months from the date of their taking oath. It was the contention of the learned Counsel for the appellant that after entering the house of representatives both the elected and nominated members enjoy the same rights, privileges and immunities and as such, all these members form a class unto themselves and the disparity with regard to expressing political affiliation is a direct violation of Art. 14 of the Constitution of India. Learned counsel also urged that there is no rationality behind making a distinction in between the elected independent members and nominated members of a house to associate with any political party.