G. Viswanathan v. Speaker, Tamil Nadu Legislative Assembly
Supreme Court of India, 24 January 1996, 2 judges, 1996 AIR 1060, 1996 SCC (2) 353, JT 1996 (1) 607
A member elected on a party ticket who is expelled from that party and then joins another party voluntarily gives up his membership of the original party and is disqualified under paragraph 2(1)(a) of the Tenth Schedule.
Facts
The two appellants were elected to the Tamil Nadu Legislative Assembly in 1991 as candidates set up by the AIADMK. They were expelled from the party on January 8, 1994, and the Speaker declared them 'unattached' members on March 16, 1994. On a complaint by another member that they had joined a new party, the MDMK, the Speaker held on April 20, 1995 that they had incurred disqualification under Article 191(2) read with paragraph 2(1)(a) of the Tenth Schedule and had ceased to be members. The appellants' writ petitions and writ appeals were dismissed by the Madras High Court, and they appealed by special leave. They argued that an expelled member does not voluntarily give up membership and that, as unattached members, the Tenth Schedule did not apply to them.
Questions before the Court
- Does a member of a House belonging to a political party become disqualified as having voluntarily given up his membership of that party when he joins another political party after his expulsion from the former?
- Does a member expelled from his party and treated as 'unattached' cease to belong to that party for the purposes of the Tenth Schedule?
What the Court held
- Under Explanation (a) to paragraph 2(1) of the Tenth Schedule, an elected member is deemed to belong to the party that set him up as a candidate. Even if he is expelled, he continues to belong to that party for the purposes of the Tenth Schedule.
- The label 'unattached' has no place or recognition in the Tenth Schedule. The Schedule classifies members only by the manner of their entry into the House: party candidates, independents and nominated members. These categories are exhaustive, and no new category can be invented.
- Voluntarily giving up membership may be express or implied. If an expelled member joins another political party, for whatever reason, he voluntarily gives up his membership of the original party and incurs disqualification.
- The deeming fiction must be given full effect; otherwise an expelled member would escape the law meant to curb defections. Expulsion is a matter between the member and his party and cannot affect the fiction under the Tenth Schedule.
- Paragraph 1(b) must be read with paragraphs 2, 3 and 4 and does not take an expelled member out of the deeming provision. Courts would insist on positive, reliable and unequivocal evidence of joining another party. The appeals were dismissed with costs.
Why it matters
The judgment decides that expulsion from a party does not free an elected member from the anti-defection law. Giving full effect to the deeming provision in Explanation (a) to paragraph 2(1), it holds that the expelled member still belongs to his original party under the Tenth Schedule, that the 'unattached' status has no legal bearing, and that joining another party after expulsion amounts to voluntarily giving up membership under paragraph 2(1)(a).
In the Court's words
Copied from the official judgment; each passage links to its page.
“Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as ‘unattached’.”
“In our view, it is impermissible to invent a new category or clause other than the one envisaged or provided in the Tenth Schedule of the Constitution. If a person belonging to a political party that had set him up as a candidate, gets elected to the House and thereafter joins another political party for whatever reasons, either because of his expulsion from the party or otherwise, he voluntarily gives up his membership of the political party and incurs the disqualification.”
“Paragraph 2(1) read with the explanation clearly points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party. That is a matter between the member and his party and has nothing to do so far as deeming clause in the Tenth Schedule is concerned. The action of a political party qua its member has no significance and cannot impinge on the fiction of law under the Tenth Schedule.”
Provisions interpreted
Related judgments
- Follows Ravi S. Naik v. Union of India (1994)“If he of his own volition joins another political party, as the appellants did in the present case, he must be taken to have acquired the membership of another political party” (page 8)
Case and bench
- Parties
- G. Viswanathan v. The Hon’ble Speaker, Tamil Nadu Legislative Assembly, Madras
- Case
- Civil Appeal Nos. 2271-72 of 1996 (arising out of SLP (Civil) Nos. 24585-24586 of 1995), the connected appeal; the number of the lead appeal is not printed
- Decided
- 24 January 1996
- Bench
- A.M. Ahmadi (CJ), K.S. Paripoornan
- Opinions
- Unanimous. Judgment of the Court delivered by Ahmadi, CJI.
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