A.S. Anand, Actg. C.J.
1. The Preliminary issue which this court is called upon to decide at this stage is : --
'Whether the allegations contained in the complaint of Sardar Rafiq Hussain Khan dated 3-7-1984, addressed to the Speaker Legislative Assembly attract the provisions of Section 24-G of the Representation of the People Act? If so, what is its effect?'
The facts deserve notice only in so far as they are relevant to the pristine issue aforesaid.
2. Sardar Rafiq Hussain Khan, Chief Whip of the Jammu and Kashmir National Conference, addressed the following communication to the Speaker of the Jammu and Kashmir Legislative Assembly :
The Hon'ble Speaker, J & K Legislative Assembly, Srinagar. My dear
I as Chief Whip of Jammu and Kashmir National Conference Legislature Party wish to inform you that the following members of the Legislature Party have violated the Party Whip and chosen voluntarily to withdraw support they were obliged to lend to Leader of the House Dr. Farooq Abdullah to whose Party they belonged and have chosen Shri G. M. Shah as their Leader knowing full welt that he has been expelled from Jammu and Kashmir National Conference. This constitutes defection in terms of Anti-Defection Law of our State. I request you, therefore, to take appropriate action in terms of Section 70 of Jammu and Kashmir Constitution immediately.
1. Shri Abdul Jabbar Sheikh
2. Shri Talib Hussain
3. Shri Hassam-ud-Din Banday.
4. Shri Sona Ullah Dar
5. Shri Ghulam Hassan Mir
6. Shri Mohamad Khalil Johar
7. Shri Hakim Mohamad Yasin
MLA Khan Sahib.
8. Shri Munshi Habib Ullah
9. Shri Dilawar Mir
10. Shri Mehboob Beg
11. Smt. Khem Lata Wakhlu Nominated MLA
12. Smt. Gaurbachan Kumari Rana Nominated MLA'
On receipt of the said communication, the Speaker of the Jammu and Kashmir Legislative Assembly issued notice to all the non-applicants mentioned in the communication of Sardar Rafiq Hussain Khan, calling upon them to file objections, if any, in regard to the communication of Shri Khan within ten days from the receipt of the notice. The non-applicants replied the notice raising preliminary objections as also contested the stand of Shri Khan on facts and law. The non-applicants assertedthat they were not disqualified from continuing to be the members of the Jammu and Kashmir Legislative Assembly. On receipt of their replies, the Speaker has made a reference to this court under Section 70 of the Constitution of Jammu and Kashmir.
3. Parties were issued notice and after service the non-applicants were also permitted to file supplementary submissions in response to the reference, without, however, introducing any fresh fact which was not already incorporated in their replies to the show cause notice issued by the Speaker. At the request of Mr. P. L. Handoo appearing for Sardar Rafiq Hussain Khan, proceedings were directed to be taken up from day to day as the learned counsel submitted that the references may be decided before 31st of July, 1984. The supplementary submissions were thereafter filed by the non-applicants in which besides reiterating the challenge as contained in their original reply to the show cause notice certain preliminary objections were also raised.
4. During the pendency of the reference in this court Mr. Khan at whose representation/complaint the Speaker of the Legislative Assembly had initiated the action and made a reference to this court, through a written communication addressed to the Deputy Registrar cancelled the power of attorney he had earlier issued in favour Mr. Handoo. He also filed an affidavit through his counsel S/Shri H. L. Bhagotra and B. A. Khan. The affidavit for facility of reference is reproduced hereunder : --
'1. That I have gone through the objections filed by all the 12. respondents in the above mentioned reference.
2. That after going through those objections I concede that the respondents have not incurred any disqualification in terms of Section 24-G of the Representation of the People Act.
3. That the above stated statement is correct and true.'
Shri P. L. Handoo thereafter sought to withdraw from the case on behalf of Mr. Khan and he was permitted to do so. He, however filed an application being C. M. P. No. 31 of 1984 on his own behalfand on behalf of S/Shri Mohi-ud-Din Shah, Abdul Rahim Rather and Mohammad Shaffi, seeking permission of the court to be impleaded as parties and to be permitted to assist the court to dispose of the reference. Notice of this application was issued to the non-applicants who were granted time to file objections to the application. Pending the disposal of that application, it was agreed to by learned counsel for the parties that since a preliminary issue was required to be raised in the case on the basis of the preliminary objections, Mr. Handoo, may be permitted to assist the court but without prejudice to the objections which the non-applicants may raise in reply to his application regarding their locus standi to be impleaded. Accordingly this court, in the interest of justice, permitted Mr. Handoo to assist the court on his behalf and on behalf of three others.
5. The entire controversy in the present reference revolves round the scope and interpretation of Section 24-G of the Representation of the People Act as introduced by the Amending Act of 1979, (hereinafter referred to as 'The Act'). It would be advantageous to first notice the provisions of this Section.
'24-G. Disqualification for being a member of either House of Legislature A person shall be disqualified for being a member of the Legislative Assembly or the Legislative Council of the State : --
(a) If he, having been elected as suchmember, voluntarily gives up his .membership of the political party by whichhe was set up as a candidate in suchelection or of which he became a memberafter such election.
(b) If he votes or abstains from voting insuch house contrary to any direction orwhip issued by such political party or byany person authorised by it in this behalfwithout obtaining prior permission of suchparty or person. Explanation : For thepurposes of this Section political partymeans : --
i) a political party classified as a recognized political party under any law or any rule, regulation, order or notification having the force of law with respect to the matter relating to, or in connection with election to the Legislative Council, of the
ii) any other political party which is recognized by the Speaker of the Legislative Assembly or as the case may be, by the Chairman of the Legislative Council, as a political party.'
5A. ' Although, after the affidavit of the complaint Sardar Rafiq Hussain Khan, noticed above, was filed and he had conceded that the preliminary objection raised by the non-applicants was well founded, this court could answer the reference and dispose it of, but considering the importance of the question, this court decided to hear the submissions from the learned counsel for the parties with a view to decide the preliminary issue.
6. Before proceeding to deal with the submissions raised and considering the scope and interpretation of Section 24-G of the Act, it would be useful to note some of the factual assumptions, as accepted by Mr. P. L. Handoo, Mr. M. H. Beg (who appeared for the non-applicant No. 1) Mr. H. L. Bhagotra (Counsel for Sardar Rafiq Hussain Khan) and Mr. Z. A. Shah (Counsel for the Speaker) for the purposes of deciding the preliminary issue only and on the basis of which the arguments addressed by the learned counsel for the parties are required to be appreciated.
Those factual assumptions are : --
1. That Sardar Rafiq Hussain Khan as Chief Whip of the National Conference Legislature party had issued a direction/ whip.
2. That the direction/whip was not issued with regard to the transaction of any business on the floor of the House.
3. That the direction/whip was not issued to regulate the manner of voting on any issue in the House of the Legislature.
4. That the direction/whip was in the nature of a general direction to the members of the National Conference party not to withdraw support from the leader of the House Dr. Farooq Abdullah.
5. That despite the direction/whip issued by the Chief Whip the non-applicants voluntarily withdraw support from Dr. Farooq Abdullah and instead elected Shri G. M. Shah, who had been earlier expelledfrom the National Conference, as their Leader, And
6. That when the direction/whip was issued as well as when the support was withdrawn by the non-applicants from Dr. Farooq Abdullah, they were all members of the National Conference.
7. At this stage, I would like to dispose of an argument raised by Mr. Handoo, with regard to the manner in which the references are required to be disposed of. Although, as noticed in the earlier part of this order, the preliminary issue had been raised in consultation with and with the agreement of counsel for the parties, including Mr. Handoo, yet during the course of his submissions, Mr. Handoo submitted that the references could not be disposed of summarily by deciding the preliminary issue and that for deciding the question, a detailed enquiry was required to be made in which evidence would be required to be adduced either orally or by affidavits, and that then only should this court, after appreciating the evidence, dispose of the references Learned counsel submitted that once a reference is made to the High Court under Section 70 of the State Constitution, a detailed enquiry is a 'must' and under no circumstances can a reference be rejected straightway by the High Court, after only deciding the preliminary issue. Learned Counsel referred to the provisions of Articles 103 and 192 of the Constitution of India to urge that under the said Articles, whenever any question arises as to whether a member of the Legislature had become subject to any of the prescribed disqualifications the question shall be referred for decision of the Governor, or the President of India, as the case may be and his decision shall be final but the Governor or the President (as the case may be) before giving any such decision shall obtain the opinion of the Election Commission and shall act according to such opinion. The precise contention of Mr. Handoo was that the Governor or the President, could not summarily reject the complaint moved by any citizen and he had to refer it to the Election Commission for its opinion and the Election Commission also could not summarily dispose of the complaint without holding a detailed enquiry,howsoever, 'fantastic and frivolous' the complaint may have been. Learned counsel in this connection placed reliance on Brundaban Nayak v. Election Commission of India, AIR 1965 SC 1892. The. reliance, in my opinion, is misplaced. In the Supreme court case, their Lordships of the Supreme Court interpreted Article 192 of the Constitution of India and opined that under the first clause of Article 192(1) a question should only arise, though it is immaterial how it arises or by whom it is raised or under what circumstances the same is raised Their Lordships went on to observe that such a question when raised is required to be referred to the Governor, but the Governor on his own cannot dispose of the reference, even if it may appear, prima facie, to be 'fantastic or frivolous.' They, on terms of Clause (2) of Article 192, observed that the Governor shall act under Sub-clause (2) of Article 192 only on the opinion of the Election Commission to whom he is under an obligation to refer the question for opinion. The Enquiring Agency, i.e. the Election Commission of India, however, suffers from no such disability in the matter of giving its opinion and if prima facie, it comes to the conclusion that the question is 'fantastic or frivolous', it can straightway reject it and forward the opinion to the Governor. This judgment thus is not an authority for the proposition canvassed by Mr. Handoo. As a matter of fact, this authority completely demolishes his argument. In para 14 of the judgment their Lordships observed : --
'It is true that Article 192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, complaints made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightway.'
The aforesaid observations clearly show that the Election Commission (who is required to hold the enquiry in the reference, like the High Court under Section 70 of the State Constitution), can dispose ofthe complaint 'straightway' if it is of the opinion that the said course is warranted on the basis of the factual allegations contained in the complaint, even without framing a preliminary issue and only on examining the factual allegations contained in the complaint or petition. This judgment, therefore, negatives the contention of Mr. Handoo and does not advance his case at all.
8. Mr. Handoo then referred to some other opinions of the Election Commissionof India, reported in (1975) 51 ELR 98 and (1975) 51 ELR 271 to urge that the Election Commission had held a detailed enquiry before returning its opinion to the Governor or the President (as the case may be) and that it did not summarily deal with the Complaint referred to it by the Governor or the President. A careful perusal of the opinions in both the cases show that the Election Commission proceeded to hold the enquiry as neither of the parties asserted that the question could be disposed of on the basis of some 'admitted factual assertions' These' opinions also cannot advance the case of Mr. Handoo either. As a matter of fact the opinions referred to only show that the Election Commission is 'competent' to ask the parties to adduce evidence, if the question referred to it cannot be disposed of otherwise.
9. In Re Maharaja Anand Chand M. P. (1975) 51 ELR 27, where the complaint was referred to the Election Commission of India, by the Governor and the Election Commission found that the complaint dealt with a disqualification which existed at the time of his election, it opined summarily without holding any detailedenquiry' that even if the allegations made in the petition are factually correct, no question arises in terms of Articles, 101(3)(a) and 103(1) as to whether Maharaja Anand Chand has become subject to any disqualification after his election as member of the Parliament and the petition should be rejected. Similar procedure was adopted by the Election Commission in : (1975) 51 ELR 29, (1975) 51 ELR 195, (1975) 51 ELR 196, and(1975) 51 ELR 198. In all th-ese cases the Election Commission opined that even if the allegations made inthe application are factually correct, no dis-qualification was made put and the reference deserved to be rejected without any further enquiry.
10. I, therefore, reject the submission of Mr. Handoo noticed earlier.
10A. Mr. Z. A. Shah, who appeared for the Speaker, also made a vain attempt to support the submissions of Mr. Handoo that the reference cannot be taken up for consideration without first affording the parties an opportunity of adducing evidence either orally, or by way of affidavits even if on the facts alleged in the petition or complaint no disqualification is spelt out. In this connection he urged that the representation of Mr. Khan contained not only some factual assertions but also deducible inferences and that since according to the preliminary issue, it was only the factual assertions which could be taken into account the answer to the references cannot be properly given without a detailed enquiry, I cannot agree. If on the basis of factual assertions contained in the complaint it can be found that the provisions of Section 24-G of the Act are not attracted, the court is not required to allow the parties to adduce evidence and hold a detailed enquiry.
The question of holding an enquiry would arise only when either the factual assertions contained in the complaint attract Section 24-G or the preliminary issue itself is a mixed question of law and fact and cannot be disposed of without recording evidence. Where the preliminary issue is purely an issue of law, to be decided on the basis of factual assertions contained in the representation which are admitted and involves only an interpretation and application of provisions of law, this court can dispose of the preliminary objection straightway and this course has been adopted by the Election Commission while dealing with references under Article 103 or Article 192 in the cases noticed above.
10B. I, therefore, hold that if the High Corut on a reference made to it under Section 70 of the Constitution finds that even if the allegations made in the application are factually correct, no dis-qualification. has been incurred by the non-applicant, it canstraightway, after hearing the parties only, reject the reference and it is not obliged to hold any further enquiry.
11. I shall now take up the submissions on merits to find out that even if the allegations taken in the complaint are treated to be factually correct the provisions of Section 24-G of the Act are attracted or not. Mr. Beg who appeared for non-applicant No. 1 and, whose arguments were adopted by learned counsel for the other non-applicants in the first instance analysed the complaint/ representation made to the Speaker and submitted that the said complaint only alleged that the nonapplicants had violated a direction of the Chief Whip of the Jammu and Kashmir National Conference Legislature party inasmuch as they had voluntarily withdrawn their support to the leader of the House Dr. Farooq Abdullah and had instead chosen to support Shri G. M. Shah as their leader knowing full well that Shri Shah stood expelled from the National Conference. Mr. Beg urged that even if it be assumed that the direction or the whip of the type detailed in the representation was issued and the non-applicants as members of the party had flouted the same. The provisions of Section 24-G were not attracted. He submitted that the mischief of Clause (b) would be attracted only if the violation was in the manner of voting in the House and that on the admitted factual assumptions noticed earlier there was no whip or direction issued with regard to the manner of voting inside the House and that the whip/direction did not also relate to the proceedings inside the House. Submitted the learned counsel that on the plain reading of Clause (b) of Section 24-G (supra) it would be obvious that the provisions of the said clause would be attracted only where the defiance of whip/direction was made by party members by voting or abstaining from voting in the House contrary to the whip/direction and that since it is no body's case, as indeed it could not be any one's case, that the defiance of the whip took place at the time of voting in the house, Clause (b) clearly was not attracted.
12. In reply Mr. Handoo submitted that cl, (b) of Section 24-G of the Act did not provide the place where the whip could be issued and it only provided that after awhip is issued, no matter where, it cannot be flouted except at the cost of incurring the disqualification. He urged that the object of enacting Sub-clause (b) of Section 24-G was to prevent defiance of the whip which was essential for smooth transaction of business in the House, and if the effect of defiance was felt in the House, as in the instant case, where a new Council of Ministers has come into existence, as a clear effect of defiance of the whip Clause (b) would be attracted. The argument of Mr. Handoo is wholly fallacious. Sub-clause (b) of Section 24-G in its plain terms deals with a situation where a party member votes or abstains from voting in the House contrary to the directions or whips issued by the Political party to which he belongs. Admittedly, there were no proceedings in the House and the question of voting or abstaining from voting in the House did not arise. Mufti Baha-ud-Din Farooqi Acting Chief Justice (as his Lordship then was) speaking for the majority view in the Full Bench case of Mian Bashir Ahmed v. State of Jammu and Kashmir AIR 1982 J and K 26 interpreted this Clause in Para 18 of the Judgment. His Lordship observed :'The words 'in such House' qualify the words 'votes or abstains from voting' and are intended to limit their operation to the voting which takes place when the House is sitting and its business is being transacted, Thus this Section would be applicable and as legislator would incur disqualification if he willingly gives up the party habitat or if he flouts or disobeys the party's whip or direction in the matter of voting in the course of transaction of its business by the House.'This interpretation, with which I am in respectful agreement completely negatives the stand taken by Mr. Handoo and supports the contention of Mr. Beg. Even otherwise, the argument of Mr. Handoo does complete violence to the language of Clause (b) and seeks to enlarge its scope, which the Legislature never intended.
13. Subsequently, however Mr. Handoo changed his stand completely and categorically asserted that the allegations contained in the complaint of Mr. Khan brought into operation Clause (a) of Section 24-G of the Act and not Clause (b). Mr. Shah, who appeared for the Speaker also toed thesame line and stated that Clause (a) of Section 24-G was attracted in the case of the non-applicants and not Clause (b). In view of this shift in the stand, I am relieved of the task of dealing with the question of the duties of whip and the area of operation of the whip, on which question Mr. Handoo had sought to join issue with Mr. Beg, who had relied upon 'The Parliamentary Practice' by Erskine May.
14. Mr. H. L. Bhagotra who represents Sardar Rafiq Hussain Khan the representationist, stated that the complaint/representation he had filed before the Speaker sought disqualification of the non-applicants in terms of Clause (b) and not Clause (a) of Section 24-G of the Act. He went on to add that after studying the preliminary objections, the representationist was satisfied that even Clause (b) was not attracted and he, therefore, filed an affidavit stating that the non-applicants suffered no disqualification. After the submissions of Mr. Bhagotra that the representationist had sought to get the non-applicants disqualified under Clause (b) and the assertion of M/s Handoo and Shah, and Beg that Clause (b) was not attracted, on the factual assertions contained in the representation, the reference did not require to proceed further and the court could reject it but that was not considered a proper course because the preliminary issue covers within its ambit and scope both Clause (a) and (b). I, therefore, now proceed to deal with the submissions of the parties based on Clause (a) of the section.
15. Political defection i.e. leaving one party and joining another had assumed alarming proportions and posed a challenge to the successful functioning of parliamentary democracy in the country. It was felt by leaders of the public opinion, Jurists, and Parliamentarian that the evil was required to be checked. The problem was debated and discussed at various forums and in the rest of the country, 32nd Amendment Bill which, inter alia, provided for disqualification of a defector against continuing as a member of either House of the Parliament after discussion did not mature into an Act. It was at this stage, that the State of Jammu and Kashmir took a lead and introduced Section 24-G in the Jammu and Kashmir Representation of People Act, 1957 in1979. Through this Section the Legislature sought to deal with two situations and provide that if either of the situation existsa member shall stand disqualified to continue as a member of the House. Since I have dealt with the ambit and scope of Clause (b) in the earlier part of this judgment and held on the basis of the plain language of the clause and the concession of M/s. Handoo, Shah, and Bhagotra that the said clause is not attracted to the allegations made in the representation, I shall now deal with the situation envisaged by Clause (a) of Section 24-G. This clause in terms provides that if a person having been elected as a member of the Legislature on the ticket of a political party, which had set him up as a candidate in such election or which he joined subsequent to his election, voluntarily gives up his membership of that political party, then he would incur the dis-qualification prescribed by Section 24-G and the person concerned shall bedisqualified for continuing as a member of the Legislature of the State. For the applicability of the clause, therefore, it must be alleged and proved that the member had 'voluntarily' given up his membership of the political party. The expression 'voluntarily' denotes willing disassociation with the political party and the expression 'gives up' which qualifies the expression 'membership of the political party' unmistakably implies disassociation with the political party by leaving that party. In other words, it implies that for a member to incur the disqualification under Clause (a) it has to be alleged and established, as a fact, that the member concerned had 'voluntarily' disassociated and left the political party which had set him up as a candidate. This provision is aimed at acting as a deterrent for the member of a political party, on whose ticket he was elected to leave thatparty after his deletion.
16. The provisions of Clause (a) are sostringent that it is the mere act of leavingthe party which had set up the concernedelected person as a candidate or which hehad joined after his election which attractsthe disqualification irrespective of the factwhether or not the member concernedjoins any other party.
17. Mr. Handoo who was also supported by Mr. Z. A. Shah vehemently urged thatthe manner of giving up the membership of the party was not prescribed in Section 24-G (a), and, therefore, the membership could be given up either by writing, orally, or by conduct Argued the learned counsel, that in the instant case the withdrawal of the. support to the Leader of the House, Dr. Farooq Abdullah, who under the Rules of Procedure and Conduct of Business in the Jammu and Kashmir Legislative Assembly, is the Chief Minister, and extension of support to Mr. G. M. Shah, who stood expelled from the membership of the National Conference, unmistakably shows that the non-applicants had voluntarily given up the membership of the National Conference Party by their conduct Learned counsel submitted that since the membership had been given up voluntarily by them, Clause (a) was clearley attracted, Mr. Beg, on the other hand, submitted that it is not the case of the representationist in the complaint/ representation that the non-applicants had given up the membership of the National Conference, and, therefore, it was not open to M/s Handoo and Shah to canvass that on the allegations contained in the complaint Clause (a) of Section 24-G of the Act was attracted.
18. There is substance in the submission of Mr. Beg that the disqualification envisaged by ct. (a) of Section 24-G (supra) would be attracted only if there is a factual allegation in the complaint/representation that a particular member had voluntarily given up the membership of the party to which he belonged and that allegation was proved conclusively, and, therefore, in the absence of any such factual allegation, it was futile to contend that Clause (a) of Section 24-G of the Act would have any application. He urged that where the author of the complaint/representation himself has stated that he never made a complaint/representation in terms of Clause (a), Mr. Handoo was trying to act as 'more loyal than the king' by urging that Clause (a) was sought to be attracted by the complainant. Mr. Beg went on to add that changing a leader or voting out a leader of a political party by the members of the political party can never be equated with the giving up of the membership of thepolitical party as such a change was inherent in a democratic party and party leader could be changed if he forfeited the confidence of the members. Argued Mr. Beg, that if withdrawing support from the leader or voting out the leader be treated as synonymous with leaving the political party, it would imply that the party concerned is not a democratic party but an authoritarian group and that it could not be said for the National Conference which was a democratic party.
19. With a view to appreciate the controversy i.e. whether Clause (a) of Section 24-G is attracted to the factual allegations contained in the complaint/representation it is necessary to look to the precise factual assertions of Sardar Rafiq Hussain Khan. The representation/complaint is dated 3-7-1984, and it says, inter alia, that 'following members of the Legislature party' had violated - the party whip and chosen voluntarily to withdraw support which they were obliged to lend to the leader of the House, Dr. Farooq Abdullah and have chosen Shri G. M. Shah as their leader knowing full well that he had been - expelled from the Jammu and Kashmir National Conference. The names of the 'members of the Legislature party' have been given in the complaint/representation and they are the 12 non-applicants. The tenor of the complaint/representation and its plain language unmistakably shows that the Chief Whip of the Jammu and Kashmir National Conference Legislature party did not consider the 12 M. L. As. named therein to have left the membership of the party. As a matter of fact, he categorically stated that the said 12 M.L.As. were the 'Members of the legislature party' and that while being such members they had violated the party whip. Obviously, the violation of the whip could only be alleged against a party member and not against a member who had left the party and the grievance made in the representation also was that the named members of the Legislature party had defied the party whip. There is no averment directly or even by inference in the complaint/representation that the 12 named M.L.As. had voluntarily given up the membership of the National Conference party which admittedly hadset them up as candidates for the election. It admits of no doubt that on 3-7-1984 when the complaint/representation was made, the Chief Whip of the National Conference party treated the named 12 . M.L.As. as members of the National Conference Legislature party and sought action against them for defying the whip. Had it been otherwise, nothing prevented him from asserting as a fact that those members had given up the membership of the party?
20. In deed, as urged by M/s Shah and Handoo a person can give up the membership of a political party voluntarily by either of the three modes suggested by them, but in the instant case in the complaint/representation of Mr. Khan there was no assertion whatsoever that the 12 M.L.As. had voluntarily given up the membership of the National Conference Legislature party by the acts alleged against them in the representation. Their acts of withdrawing support from Dr. Farooq Abdullah and lending support to Shri G. M. Shah were considered by the Chief Whip only as a defiance of his directions. It appears from its plain language that the author of . the complaint/representation was only seeking to bring into operation Clause (b) of Section 24-G and not Clause (a) and this view in fact is fortified by the stand taken by Mr. Bhagotra appearing for Mr. Khan who stated that his complaint was only under Clause (b) of Section 24-G of the Act.
21. It is as noticed above a factual assertion made in the complaint/ representation by Mr. Khan, as Chief Whip of the National Conference party, that the 12 named M.L.As were the members of the Legislature party and had chosen to violate the party whip. In the face of this factual assertion it is futile for any one to contend that the assertion in the complaint to read to imply that the 12 M.L.As. named in the complaint/ representation had voluntarily given up the membership of the political party which had set them up as candidates at the election. Confronted with the plain and unambiguous language of the complaint/representation, Mr. Handoo and Shah tried to wriggle out of the situation by asserting that the representation forwhich no particular form or mode is prescribed under Section 70 of the Constitution can be supplemented by furnishing of better particulars like the furnishing of better particulars in an Election Petition. When in an election petition it is permissible for the petitioner to supply better particulars after the petition is filed, how can the representationist be denied that opportunity in respect of a reference made on the basis of his representation, asserted Mr, Handoo? Learned counsel were at pains to urge that the complaint/ representation be liberally interpreted so as to ensure that no defector is permitted to pollute the precincts of the Legislature after the enactment of Section 24-G. Learned counsel went on to add that in case the court permits them to lead evidence in support of the assertions contained in the complaint/representation they will be able to establish their case. This appears to me to be an attempt to delay the proceedings, because the factual assertion which they want to prove by evidence have in any case been treated as admitted. Evidence can, therefore, in no way improve their case.
22. Indeed, it is a salutary principle of Election Law that the court should safeguard the purity of the election process and see that no disqualified member is permitted to sit in the legislature, but it is also a cardinal principle of election law, that an elected candidate has not to be non-suited except on clear proof of his disqualification. The Consequences of vacating a seat in the legislature by unseating a sitting M.L.A. are grave and serious not only for that particular M.L.A., but also for the entire constituency whom he represents as by unseating him the constituency is left without a mouth-piece, and where the case concerns 12 M.L,As, the court has to be even more cautious to see that no injustice is done to either party.
22A. I quite agree with M/s Handoo and Shah that even in an election petition where the allegations of corrupt practices are levelled, the court may grant permission to furnish better particulars so as to complete the cause of action, but what is improtant is that better particularsare permitted only if the petition contains material facts and not otherwise. It is, however, well settled that there is a vast and clear distinction between material facts and particulars. In AIR 1969 SC 1201, their Lordships of the Supreme Court opined that material facts must be contained in the election petition itself and that the omission of a single material fact, would lead to an incomplete cause of action and statement of claim would become bad. The duty of a petitioner is to present.
a full picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. After the period of limitation for filing a petition expires material facts cannot be permitted to be supplied. The function of particulars is quite different. Particulars are intended to meet quite a separate requirement of pleadings. Their function is to fill in the picture of the petitioners cause of action. Where material facts have been given, the court can if it finds that full particulars have not been given, call upon the party to furnish full particulars but where material facts are lacking, the same cannot be supplied under the guise of giving better particulars.
23. Of course, a complaint/ representation under Section 70 of the Constitution is quite distinct from an election petition and in the representation detailed grounds on which the party concerned is sought to be disqualified may not be given in their fullness in which they are expected to be given in an election petition but the complaint/ representation must give material facts which constitute the cause of action on the basis of which the member concerned is sought to be disqualified. I could have permitted M/s. Handoo and Shah to furnish better particulars had the material fact been given in the complaint/representation. The material fact for the purpose of Clause (a) was that the member concerned had voluntarily given up the membership of the political party which had set him up as candidate in the election. If it was then not stated as to how he had given up the membership, it may have been possible for the court to seek better particulars to find out the manner by which the memberconcerned had given up voluntarily the membership of the National Conference Legislature party. That is not the case here. It would bear repetition to say that there is no averment in the complaint/representation at all, that the 12 named M.L.As. had voluntarily given up the membership of the National Conference. On the other hand, the complaint/representation itself declares that even on 3-7-1984, those M.L.As. were being treated as members of the National Conference party. Where the language of the representation/complaint is clear, the salutary rule of interpretation of pleadings is to give it the natural meaning and not to read anything in between the lines, as Mr. Handoo, seems to suggest. As a matter of fact, both Mr. Handoo and Mr. Shah candidly conceded that factual assertions to attract Clause (a) of Section 24-G were lacking in the complaint/representation, but raised an argument of despair that since the conduct of the 12 M.L.As. was writ large in the complaint/representation, this court should, prima facie, opine that Clause (a) of Section 24-G was attracted to the case. I cannot agree, As already observed, the complaint/representationist went to the Speaker with the grievance that party whip had been violated and the blameworthy conduct of the members was given to show the manner in which the party whip was defied. Though, misconceived, the representationist had sought to get the 12 M.L.As. disqualified under Clause (b) of Section 24-G and not under Clause (a) of Section 24-G which stand was also later on given up during the course of hearing before me. As a matter of fact, Mr. Handoo had also laboured hard to urge before me the applicability of Clause (b) till he took the somersault and changed his stand.
23A. As in a criminal trial, so also in anelection enquiry be it concerning theallegations of corrupt practice ordisqualification or the like, the effect ofwhich would be to unseat a legislator,there would be presumption of innocenceand it is for the party seeking to get theelected candidate unseated, on any of thegrounds, to first clearly allege and thenstrictly prove a case against the otherparty. Where no foundation is laid in thepetition or complaint for getting theparticular member disqualified or unseated no amount of evidence or better particulars can cure the defect and the petitioner has to thank himself for the vagueness. Mr. Handoo was at pains to extricate himself from the language of the complaint/representation and time and again pleaded for liberal interpretation of the pleadings. He urged that the complaint/representation be read as whole to determine as to what was the intention of the author of the complaint and if that intention can be clearly spelt out, some lacuna in the complaint should not stand in the way of the representationist getting a chance for a detailed enquiry to prove the charge of disqualification against the non-applicants. I agree. It is the substance and not the form which is relevant. However, reading the complaint as a whole not only by myself but also with the assistance of learned counsel for the parties, the only conclusion that I can arrive at is that the author of the complaint/represenatation had only made a grievance against the non-applicants that they had voluntarily violated the party whip and had gone ahead by indicating as to what possibly the whip was and how it was defied. Beyond this nothing else can be read into it. It is not possible to read in the representation that the 12 M.L.As. had voluntarily given up the membership of the National Conference. There is a vast difference between withdrawing from the membership of a political party and withdrawing support to the leader of the party by the members. By the withdrawal of the support to the leader, the members concerned do not cease to be members of the political party but by dis-associating themselves from the political party by leaving it, they become outsiders so far as the party is concerned and come within the mischief of Section 24-G of the Act. It is unimaginable that in a party democracy the leader of a political party cannot be voted out by the members of the party even if he loses the confidence of the members. It is unimaginable that by voting out a leader at the party forum, the members ipso facto lose membership of the party. That is not permissible in a democracy and is an attribute of authoritarianism. Mr. Handoo agreed thatthe mere fact of withdrawing support from Dr. Farooq Abdullah may not amount to giving up the membership, but he urged that since the 12 M.L.As. had gone further and lent support to non-member, it was the worst type of political immorality. May be it is so, but the remedy for it lies under party constitution. The concerned M.L.As., as long as they are members of the party are bound by the party constitution and discipline. If the constitution of the party so permits. disciplinary action can be taken against the defaulting members and if permitted they can even be expelled, Mr. Handoo argued that if the members are expelled, they would not be 'defectors' within the meaning of Clause (a) of Section 24-G of the Act, and, therefore, the only way to 'punish' the erring M.L.As. was to apply the provisions of Section 24-G (a). The argument is self defeating. Clause (a) of Section 24-G is not meant to come to the aid of a political party, which choose to 'punish' its members for voting out a leader while remaining in the party. Remedy to deal with such members lies elsewhere and through different process. Intra-party discipline cannot be enforced through Section 24-G(a) and it would be misuse of Section 24-G to invoke it for such a purpose.
24. There is, indeed, no quarrel with the proposition raised by Mr. Handoo that a sound party system is essential for the stability of parliamentary democracy or a parlimentary form of the Government. But it also is equally important that the right of dissent is preserved in the party itself and the members of the party are not denied the right to vote out a leader and choose another one except on the pain of suffering the disqualification under Section 24-G. In a party democracy all problems are required to be decided by discussion and adjustment of views and this right of dissent is essential in a democracy. Shri N. A. Palkiwala in his Book 'Our Constitution defaced and Defiled' at pages 67 and 68 (1974 Edition) observed :
'No greater insult can be imagined to members of the Parliament and the State Legislature than to tell them once they become members of a political party that they shall have no right to form a judgment and no liberty to think for themselves.....and they must become 'soulless and consciousless entities' who would be driven by their political party in which ever direction the party choose to push them.'
25. 'In other words the argument of Mr. Handoo implies that the party legislatures must accept the principle 'Once a leader, always a leader 'and a challenge to the 'Principle' would take them within the mischief of Section 24-G (a) of the Act. Such a plea needs a notice only and does not even need any comments.
25A. In view of the above discussion, and on a plain language of the complaint/representation which completely lacks any factual assertion or statement that the 12 named M.L. As. had voluntarily given up the membership of the National Conference, it is obvious that the allegations in the complaint, even if admitted to be true do not attract the provisions of Clause (a) of Section 24-G of the Act.
26. 1 would now deal with yet another aspect of the case. Section 24-G(a) of the Act, in terms provides that 'a person' shall be disqualified if he comes within the mischief of Clause (a) or Clause (b) of this Section. Both in Clause (a) and Clause (b) the expression 'if he' qualifies the particular conduct which entails the disqualification. Mr. Handoo urged that the 12 named M.L.As. who he styled as 'a pack of defectors' had formed into a 'group' and had thereby brought political instability by withdrawing support to the leader of the House (who under the Business Rules is the Chief Minister) and by choosing to lend their support to Mr. Shah and that their conduct squarely fall within the mischief of Clause (a) of Section 24-G of the Apt. I have already held that the provisions of Section 24-G (a) of the Act are not at all attracted in this case. Even otherwise, can such a 'Group' be said to come within the mischief of Section 24-G? This question was not debated before the Full Bench, as indeed, it was not required because the allegations before the Full Bench were against two individual members in their individual capacity. In my opinion, Section 24-G was enacted by the Legislature with individual cases in view and not to deal with a group of persons who while remaining within aparty, for ideological or other reasons, do not support the leadership of the party. Such members cannot be treated at par with 'a person' who voluntarily gives up the membership of the party'. Such group of members have to be dealt with under the party Constitution and not under Section 24-G of the Act. It appears to me that the Legislature in its supreme wisdom did not want to cover within the ambit and scope of Section 24-G of the Act, what has now popularly come to be known as a 'party Split' Implying thereby that members of one political party fall put in different groups each claiming to be the real party suggesting thereby that none had voluntarily given up the membership of the party concerned. Such a 'Split' in the political party has to be dealt with differently and, I say so, because in my opinion, action on ideological differences within a party must be treated separately as process of polarisation is necessary and essential for the functioning of a democracy. A reference under Section 70 is not the proper remedy for deciding the question as to which of the groups is the real party. An enquiry under Section 70 of the Constitution of necessity cannot extend to the determination of that question. The language of Section 24-G itself suggests that it was not intended to cover within its ambit 'split' because in a 'split' no one admits to the voluntary leaving the membership of a political party. A 'Split', therefore, appears to have been deliberately left out of the purview of Section 24-G of the Act and, in any event, the provisions of the section cannot come into play when the 'group' claims to continue to belong to the same political party and has not dis-associated itself from the party. In that event the very sine qua non of Clause (a) i.e. voluntarily leaving the membership of the party would be missing, in such a situation and the group shall have to get their rival claims settled else where i.e. before the Election Commission of India.
27. It may be of interest to note thatthe two anti-defection bills, one brought by Mrs. Gandhi's Government and the other by the Janta Government which though failed to become law, defined, 'defection' so as to exclude a 'Split' within a party for. it would be a mootpoint, after the 'Split' as to which of the two groups is the deserter. That controversy has to be resolved by the Election Commission, under the Election. Symbols (Reservation and Allotment) order, 1968. Since neither the Representation of the People Act, nor, the Constitution of the State contains any definition of the expression 'defection it would not be unreasonable to hold that defection as known in common parlance would exclude a 'vertical Split' within the party within the meaning of Section 24-G of the Act. Shri H. M. Seervai, dealing with the question of defections in his treatise 'Constitutional Law of India' 2nd Edition, Vol. (iii) at pages 1831 to 1835, took note of the definition of 'defection' as given in the two anti defection bills introduced in the Parliament and opined :
'If a small number of M. Ps. desert their party, they become deserters, who may be subjected to pains and penalties, but if a large number of M. Ps. desert their party..... say 20%..... this grandscale desertion ceases to be desertion.'
These observations imply that a 'split' in the party depending upon what is the number of those who have caused the 'Split' will have to be treated on a different footing than an individual member, who either voluntarily gives up the. membership of the political party by which he was set up as a candidate after his election or when he votes or abstains from voting in legislature contrary to any direction or the whip issued by that political party, Considered in this light, it appears to me that Section 24-G of the Act is not meant to cover within its ambit cases arising out of a 'split' in the party and it confines itself to individual cases.
28. Mr. Z. A. Shah placed strong reliance on the 'Mischief Rule' and the Rule of 'Restrictive Construction' as contained in Maxwell's Interpretation of Statutes, and urged that with a view to combat the evil which the Section seeks to curb, the construction must be so placed on the section that it covers even a 'split' in the party and the 'group of deserters' who cause the 'Split' also come within the net of Section 24-G. This is begging the question, for, it has to be determined as to who is the deserter and the forum for thatdebate is elsewhere. Of course, the 'Mischief Rule' and the 'Rule of Restrictive Construction' are sound Rules for interpretation of Statutes but the same cannot be extended to do violence to the plain language of the statute more particularly when the statute is of a penal nature. In the instant case, Section 24-G of the Act has penal consequences and that too very serious and grave ones. The rule of construction for such a statute is the 'strict interpretation of rule' and it is an accepted law in this country that a penal provision must be strictly construed and if two views are possible, the one favouring the party likely to be effected, must be adopted. Therefore, I am of the opinion that Section 24-G prima facie, does not bring within its scope a 'split' within the political party and the determination as to which of the groups of a political party after the 'Split' can be treated as 'deserters' would depend upon a number of factors and the scope for debate of that question is not in a reference under Section 70 of the Constitution but in separate procdeedings before the Election Commission of India.
29. In the instant case, whether the 12 M.L.As. named in the representation/ complaint who constitute more than 25% of the total membership of the National Conference Legislature party (as it was pointed out at the time of hearing that before 2-7-1984, the National Conference had a strength of 47 members) are to be treated as deserters or not, is not for this forum to decide and that is a matter which shall have to be agitated before the Election Commission of India under the Election Symbol (Reservation and Allotment) Order, 1968, because it will be for the Election Commission of India, to recognize the political party under the said order as also under SRO 3156 dated 17-10-1966 and under other relevant orders and rules. This is a matter which the parties concerned may agitate before the Election Commission of India and get a verdict. A reference under Section 70 of the Constitution of Jammu & Kashmir is not a substitute for the proceedings before the Election Commission of India, whose decision in these matters, under the relevant rules, is final.
30. I would in this connection also consider an argument-raised by Mr. S. P. Gupta, counsel for Smt. K. L. Wahloo and Smt. Gurbachan Kumari Rana. Learned counsel submitted that Clause (a) of Section 24-G could only apply to 'elected members' and not to 'nominated members'. Learned counsel pointed out that both Smt. Wakhloo and Smt. Rana had been nominated by the Governor in exercise of his constitutional powers under Section 47 of the Constitution and the Legislature could not have intended that Clause (a) would also be applied to such nominated members. This argument of Mr. S. P. Gupta, was not replied to either by Mr. Handoo or Mr. Shah. There appears to be force in the submission of Mr. Gupta. On the plain language of Clause (a) of Section 24-G it is apparent that it applies only to 'elected members' and not to 'nominated members', and, therefore, Clause (a) would have no application to the cases of the nominated members, Smt. K. L. Wakhloo and Smt. Gurbachan Kumari Rana.
31. Mr. Handoo sought to get all the 12 M.L.As. disqualified as a 'group' because of their conduct even when these two members clearly fall outside the scope of the operation of Clause (a) of Section 24-G of the Act. It certainly could not have been the intention of the Legislature that a 'group' comprising of individuals all of whom are not subject to disqualifications should get disqualified by this back door method. I am, as such of the opinion, that the ambit and scope of Clause (a) of Section 24-G of the Act does not take within its fold a 'split' in the party and that the forum to settle taht controversy in else-where i.e before the Election Commission of India.
32. It appears from a plain reading of the language of the complaint/ representation that the author had no intention of either invoking Clause (a) or Clause (b) of Section 24-G in the case, and, that is why the complaint/representation was filed before the speaker couched in the language in which it -was. May be that the author * himself realized that 'split' was outside the scope of operation of Section 24-G and that is why he took recourse to such a vague language in the complaint/ representation.
Thus, for what has been discussed above, I hold that the allegations in thecomplaint/representation, even if admitted to be true, do not attract the provisions of either Clause (a) or Clause (b) of Section 24-G of the Act, and deciding the preliminary issue accordingly, I hold that the non-applicants (12 M.L.As.) have not incurred any disqualification within the meaning of Section 24-G of the Representation of the People Act. The Reference is answered accordingly.
33. As the judgment was about to be announced, the Deputy Registrar of the High Court has brought to my notice a communication addressed to him by the Speaker Jammu and Kashmir Legislative Assembly, wherein it has been requested by the Speaker that 'the Hon'ble Acting Chief Justice may be informed that the said reference may be treated to have been withdrawn with immediate effect.'
34. In the first place, the High Court being a court of record, no party whosoever it may be, can treat a matter pending before the High Court as 'withdrawn' at his sweet will without first seeking permission of the High Court to permit it to withdraw the same. The communication of the Speaker No. LP-27/PA/84 dated 30-7-1984 seeks no such permission.
35. In the second place. I have my doubts whether after reference has been made to this court by the speaker, he retains any power to withdraw the reference as for all practical purposes after making the reference he becomes functus officio. Prima facie I am of the view that once a question has been raised by way of reference before the High Court, the mere intention of the party who had made the reference not to proceed with the same, cannot be deemed sufficient for the court to refuse to answer the reference under Section 70 of the Constitution. In taking this view I am fortified by the Judgment in the case of Maharaja Anand Chand M. P. reported in (1975) 51 ELR 27 wherein it was opined :
'If a question properly arises under Article 103 as to whether the member has, or has not, become subject to a disqualification, the fact that the person who originally raised the question does not wish to proceed with the matter and asksfor permission to withdraw his petition, will not be sufficient for the Election Commission to desist from giving an opinion on the reference.'
36. Similar view was also expressed in Shri Yadvendra Singh's case, reported in (1975) 51 ELR 67 wherein it has been observed :
'Once a question of disqualification of a member of a House of Legislature has been raised, the Commission is required by the Constitution to give its opinion to the President, the Rajpramukh or the Governor as the case may be.'
37. In view of these pronouncements, I have my doubts whether the Speaker can be permitted to withdraw the reference at this stage but I give no final opinion on this aspect and leave this matter to be decided in an appropriate case at an appropriate time. The communication of the Speaker in the circumstances has become infructuous.