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Case Analysis: Ravi S. Naik vs Union of India

This is a celebrated case in the field of Anti-Defection law where it has been discussed by the honorable Supreme Court about the validity of the decision of a Speaker/Chairman of the House of Parliament or the State legislature, as the case may be, where a stay of order has been issued by a higher court. In this case dual petitions had been issued.

Citations: 1994 AIR 1558: 994 SCR (1) 754: 1994 SCC Supl. (2): 641 JT 1994 (1) 551:
1994 Scale (1) 487

Bench Strength: Division bench which includes Agrawal, S.C. (J) and Venkatachalliah, M.N. (CJ).
Date of Judgement: 09/02/1994

Petition 1: Sanjay Bandekar and Ratnakar Chopdekar

Facts of The Case:
In 1989, the elections for the Goa Legislative Assembly had organised. Subsequent to the elections, there has 20 members in Congress (1), 18 members in Maharashtrawadi Gomantak Party (MGP) and 2 dissociated members. Congress (1) with the assistance of one dissociated member, had instituted the government.

After a span of time, seven of the Congress members established the Goan People’s Party (GPP). The GPP and MGP formed an alliance in the form of Progressive Democratic Fund (PDF). On December 04, 1990, the MGP repudiate to be in alliance with the GPP and a proclamation for convening the assembly was circulated in order to strive mutual agreement of the members of the assembly to such negation on December 10, 1990. Dr. Luis Proto Barbosa was the Chief minister of Goa at that point of time. But afore the congregation could took place, the Chief minister renounced from his footing.

On the same date, the chief of the Congress (1), Dr. Wilford D’Souza, was determined to form a Congress Democratic Front (CDF) which comprised of 2 members of MGP namely, Sanjay Bandekar and Ratnakar Chopdekar (the appellants).

On December 10, 1990, one Ramakant Khalap, the leader of PDF, filed two autonomous petitions before the Speaker of State Legislative Assembly. In his petition, he acknowledged to rule out both Sanjay Bandekar and Ratnakar Chopdekar under Article 191 (2) read with paragraph 2 of the tenth schedule to the Constitution of India, from the legislative assembly.

The Speaker, on December 13, 1990, by his ruling, ruled out both the appellants on the ground of defection. Both the appellants, on the same date, presented a writ petition to the High Court questioning the order of the speaker. On December 14, 1990, the High Court issued an interim order to stay the proceedings of the speaker.

On May 14, 1993, the High Court abjure the petitions of Bandekar and Chopdekar and an appeal was filed in the highest court of appeal in India.

Proceedings Before The Speaker

Claims of the petitioner:
  1. That the respondent voluntarily resigned from MGP.
  2. That the respondent accompanied Dr. Barbosa, the former Chief Minister of Goa, to the Governor and affirmed to the Governor that they did not belong to MGP and
  3. That the respondent made aware to the public that they voluntarily resigned from the office of MGP.

Claims of the appellants:
  1. In reply to the first contention of the petitioner, the appellants contended that the petitioner does not adduce any documentary evidences to substantiate that the respondent voluntarily resigned from the membership of MGP.
     
  2. In reply to second contention, the appellants contended that the mere fact that they were assisting Mr. Barbosa does not made them dis-entitled and they also denied the fact that they told the Governor that they did not support MGP.
     
  3. They also denied the third contention of the petitioner that they made anybody aware that they had voluntarily resigned from the office of MGP.

Decision of the Speaker:
  1. That the copies of numerous newspapers exhibited photographs of the respondent with Congress (1) MLA, Dr. Barbosa and Dr. Wilfred D’Souza, who took them to the Governor for a meeting in order to show that they had support of 20 MLAs, were supplied by Dr. Jhalmi.
     
  2. That the above-mentioned fact is renowned in Goa and the Governor also acknowledged that the respondent met him.
     
  3. That in the reply filed by the respondent they did not contradict the fact that they met the Governor.
     
  4. In reply to the contention of the appellants that they were not provided with a chance to adduce evidences before the speaker is untruthful as they were available before the speaker and their advocate did not make them to adduce evidences.
     
  5. That they shoulder Dr. Wilfred D’Souza in forming Congress (1) government and went with him as a part of those 20 MLAs to meet governor.

Decision of High Court:
  1. The speaker only depended upon the newspaper photographs.
  2. The appellants did not contend that they had not the encountered the Governor.
  3. Nothing had interrupted the appellants from adducing any evidences in their favor.
  4. The appellants or the advocate did not cross-question Jhalmi when he made the statement afore the Speaker that he willingly refrained from the membership.

Decision of The Apex Court
  1. The High Court was appropriate in highlighting that appellants did not refute the fact that they went to meet the Governor with other MLAs.
  2. The appellants were facing the Speaker still they did not volunteer to adduce evidence.
  3. They also could have requested authorization from the Speaker to cross-question Jhalmi.
  4. The order of disqualification was not passed in contravention of the fundamentals of natural justice.
  5. The pronouncement by the High Court was upheld and the petitions were declined.

Petition 2: Ravi S. Naik
One Dr, Kashinath Jhalmi, affiliated with the MGP, filed a petition in front of the speaker for debarment of Ravi S. Naik, the then Chief Minister of Goa, on the basis of ground of defection[1].

The contentions of Jhalmi was that, Ravi Naik was linked with the MGP and had affirmed himself as the Chief Minister of Goa by deliberately leaving the membership of MGP. On February 15, 1991, the Speaker, through his order, debar Ravi Naik from being a member of Goa Legislative Assembly. Ravi Naik filed an appeal before the High Court abolishing the order of disqualification of speaker. However, his appeal was invalidated.

Proceedings Before The Speaker

Claims of Ravi Naik:
  1. There was disunion in the original party in the meeting held at Ponda, Goa, on 24th December, 1990. There it was decided that, a distinct group be constituted under his leadership and therefore, a resolution has been ratified to that effect.
     
  2. Eight of the members of the original party has become part of this split party (including Dharma Chodankar, Bandekar and Chopdekar) and catered their signatures on the declaration effected. The facsimile of the resolution has also been surrendered as an evidence.
     
  3. The order of the speaker disqualifying Chopdekar and Bandekar was erroneous as there has been stay to the proceedings by the High Court.

Decision of the speaker:
The two issues propounded by the speaker are:
  1. Whether there is actually a disunion of the original MGP?
  2. Whether the disassociated party constitute 1/3rd of the MLAs integrated to the original party?

Answer to (1): If there is any split between the party and a new party has been incorporated, the head of that party has to familiarize the speaker of the split but no such particulars has been furnished and also each group members have to provide their certificates to that effect.

There has been a communication on the behalf of one Dharma Chodankar that his signatures are acquired against his will and he is still an ally of the original party.

In order to substantiate the split, the head of the spilt party can adduce the notice of the meeting called in Ponda, signatures of the members attended that meeting and the minutes of the meeting. Such evidences were not adduced therefore, it cannot be said that the split actually happened. He can also bring those six members physically before the speaker or provide their affidavits on their behalf but nothing had been done to substantiate their case.

Answer to (2): The split party does not constitute 1/3rd of the MLAs of the original party as two members namely, Bandekar and Chopdekar, has already been disqualified from the assembly and Dharma Chopdekar has beforehand stated that he is associated with the original group only.

On the answer to the contention of the counsel appearing for Ravi Naik that disqualification of Chopdekar and Bandekar was erroneous as there was beforehand the stay of suit, it has been stated by the Speaker that the order of stay came after he has given his decision and the Parliament has recently concluded that Speaker’s order cannot be inspected by court and his decision is binding.

Proceedings Before The High Court

Claims of Ravi Naik:
  1. The Speaker was inappropriate in disqualifying Chopdekar and Bandekar even after the High Court has provided its order of stay.
  2. The letters produced by Dharma Chodankar were not revealed to Naik in order to build his evidence in support.

Decision of High Court:
  1. Answer to: The speaker was unquestionable in holding the disqualification, as the Apex Court has not propounded any decision on the duration when the order was declared by the Speaker. The Apex Court’s decision of judicial review on the decision of Speaker came subsequently in November 1992.
     
  2. Answer to: When for the initial time the legislative assembly met on 13th February, 1991, Dharma Chodankar settled down according to arrangement provided to the original party and was not accorded a seat in the group of Ravi Naik. Therefore, it is not possible on the behalf of Ravi Naik that he does not attentive about the sitting of Dharma Chodankar with the original party. Ravi Naik was familiar of this incident much afore the hearing took place and therefore, non-indulgence of letters also does not incorporate as a fault.

Decision of The Apex Court

The paragraph 3[2] is an exception to paragraph 2[3] of the tenth schedule[4]. It states that, if any member incurs disqualification under paragraph 2 and that member states that there is a split in the party, then he cannot incur any disqualification. The burden to prove the requirement of paragraph 3 is on the person who claims that there is any division in the party. In the present case, Ravi Naik had to substantiate these requirements.

Whether the first requirement is fulfilled by Ravi Naik?

According to this court, he satisfied the first requirement by asserting that there is a split. In the present case, the eight MLAs associated to the MGP confirmed that they had constituted a dissociated group of which Ravi Naik is the head. The original declaration bearing the signatures of the eight MLAs was produced by the advocate for Naik during the course of the hearing before the Speaker on February 13, 1991. Therefore, the fact that a group was constituted is established by the said declaration.

Whether the second requirement is fulfilled by Ravi Naik?

According to this court, in order to fulfill the second requirement, the appellant has to establish that their group constitutes one-third of the MLAs of the original party. MGP constitutes 18 members. Therefore, there should be at-least six members available in their group. The Speaker had already removed Bandekar and Chopdekar and Dharma Chodankar had also revealed about his faith in the original party.

Whether the Speaker was correct in disqualifying Chopdekar and Bandekar?
The High Court provided a stay order to the order of the Speaker on 14th December, 1990. The effect of this order shall be that, both the Chopdekar and Dandekar were not prohibited and they were the part of that meeting where a split was occurred.

The Speaker disqualified both the appellants on the ground that the stay order came after he had disqualified both Chopdekar and Dandekar and his decision cannot be subjected to court proceedings. The jurisdiction of the higher courts challenging the decision of the Speaker has been dealt in the case of Kihoto Hollohan, according to which the decision of a Speaker shall be influenced by the judicial review.

The Speaker shall be constrained by the stay order of the High Court because of the twin reasons:

  1. If an order of stay has been placed by a superior court on the inferior court, then the inferior court has to be obliged by such order. In case of any disobedience, the proceedings shall be void. Here, the Speaker’ action will be unlawful as even after the stay order he disqualified both Chopdekar and Dandekar.
     
  2. An interim order which was provided by the High Court is supplementary to annulling the order of the Speaker.

Therefore, both the Chopdekar and Dandekar must be added to tally of one-third members and if we include both of them then the number comes out to be seven, even if we exclude Dharma Chodankar. Therefore, it satisfies the second condition also.

The court annulled the order of the Speaker and the High Court and the appeal was admitted.

Reference
  1. https://indiankanoon.org/doc/554446/.
  2. Bare Act, The Constitution of India, Universal Law Publishing, Edition 2017.

End-Notes:
  1. Article 191(2) read with paragraph 2 of the tenth schedule, The Constitution of India.
  2. Tenth Schedule, The Constitution of India.
  3. Tenth Schedule, The Constitution of India.
  4. The Constitution of India.

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