Court and a controversy

On August 27 2003, 13 MLAs of the BSP met the UP governor requesting him to invite the SP to form a government. On August 29, 2003, the governor invited Mulayam Singh Yadav to form a government and gave him two weeks to prove majority. On September 4, 2003, BSP legislature party leader Swami Prasad Maurya filed a petition before the speaker to disqualify the 13 MLAs under the anti-defection law.

On September 6 2003, 37 BSP MLAs met the speaker claiming they were a separate party. The same day, the speaker accepted their claim, and the new party merged with the SP.

Maurya approached the Allahabad HC against the speaker8217;s decision on September 29, 2003. Even while the HC was hearing the writ, the speaker rejected Maurya8217;s original petition for disqualification of the 13. On April 30, 2006, the HC majority verdict held the speaker8217;s decision 8220;in violation of the principles of natural justice8221; and asked him to 8220;reconsider8221; the decision. On February 14, 2007, the Supreme Court delivered its judgment on the subject.

8226; What is the operative part of the SC order?

Para 54 of the SC order says: 8220;The appeals filed by the 37 MLAs are dismissed and the appeal filed by the writ petitioner is allowed in the above manner.8221;

8220;Above manner8221; refers to the first 53 paragraphs of the SC judgment that explains the circumstances and the respective prayers of 37 MLAs on the one side and the BSP on the other.

8226; Who was the writ petitioner and what was the petition?

BSP leader Maurya was the writ petitioner before the Lucknow bench of the Allahabad HC. He petitioned against the UP speaker8217;s ruling that the 37 MLAs who defected from the BSP constituted a split of the BSP with one third of its total MLAs and therefore did not attract disqualification under the anti-defection law. The 37 MLAs had split from the BSP in two batches 8212; first 13 and then 24. The speaker had rejected the BSP8217;s petition for disqualifying the first 13.

8226; What did the HC do?

The Allahabad HC quashed the speaker8217;s ruling and 8220;directed the speaker to reconsider the matter with particular reference to the petition for disqualification of 13 MLAs filed by the writ petitioner.8221; Para 10, SC Judgment

8226; How did the matter reach the SC?

Both sides were aggrieved by the HC judgment. The 37 MLAs appealed against the HC judgment and wanted the decision of the speaker to prevail. Maurya, the writ petitioner, was happy that the speaker8217;s order approving a split in the BSP was quashed by the HC but wanted more relief from the SC.

The SC order lists the appeal of the writ petitioner BSP in para 20: 8220;The writ petitioner himself has challenged that part of the HC order which purports to remand the proceeding to the Speaker by taking up the position that on the materials, the High Court ought to have straightaway held that the defence under paragraph 3 of the Tenth Schedule to the Constitution has not been made out by the 37 members of BSP and that the 13 of them in the first instance and the balance 24 in the second instance stood disqualified in terms of paragraph 21a of the Tenth Schedule to the Constitution.8221;

8226; Has the SC remanded any part of the disqualification back to the speaker at all, as is widely reported?

Para 42: 8220;The question then is whether it was necessary for the majority of the Division Bench of the High Court to remand the proceeding to the Speaker or a decision could have been taken whether the 13 members stand disqualified or not and if they are found to be disqualified, the balance 24 of the 37 would also stand disqualified, since in that case, there will be no one third of the Legislature party forming a separate group as claimed by them.8221;

Again in paragraph 44: 8220;What is urged on behalf of the Bahujan Samaj Party is that these 37 MLAs except a few have all been made ministers and if they are guilty of defection with reference to the date of defection, they have been holding office without authority, in defiance of democratic principles and in such a situation, this Court must take a decision on the question of disqualification immediately. It is also submitted that the term of the Assembly is coming to an end and an expeditious decision by this Court is warranted for protection of the constitutional scheme and constitutional values. We find considerable force in this submission8221;.

Yet again, in paragraph 45: 8220;A remand of the proceeding to the Speaker or our affirming the order of remand passed by the High Court, would mean that the proceeding itself may become infructuous8221;.

8226; What did the SC say about the HC?

Para 11: 8220;8230;we must express our unhappiness at the tardy manner in which a matter of some consequence and constitutional propriety was dealt with by the High Court.8221;

However, in para 41: 8220;We have, therefore, no hesitation in agreeing with the majority of the High Court in quashing the decisions of the Speaker.8221;

8226; What does the SC order say about UP speaker8217;s role in this particular case?

Para 29: 8220;We have no doubt that the Speaker had totally misdirected himself in purporting to answer the claim of the 37 MLAs that there has been a split in the party even while leaving open the question of disqualification raised before him by way of an application that was already pending before him.8221;

8226; Why does the question of 13 MLAs get special mention?

One point of contention before the SC was at which point of time does a defected MLA get disqualified 8212; on the day of his crossing sides or on the day when a decision on his disqualification is made by the presiding officer.

SC judgment says, Para 34: 8220;As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. The fact that a decision in that regard may be taken 8230; by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification8230; the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip8230; It is really a decision ex post facto.8221;

Therefore, in para 53, 8220;The 13 MLAs, therefore, stand disqualified with effect from 27.8.20038230; the appeal filed by the writ petitioner has to be allowed even while dismissing the appeals filed by the 37 MLAs.8221;