TMI Blog2020 (1) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tenth Schedule. It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy. Appeal dismissed. - CIVIL APPEAL NO. 547 OF 2020 (SLP (CIVIL) NO.18659 OF 2019) WITH CIVIL APPEAL NO. 548 OF 2020 (SLP (CIVIL) NO.18763 OF 2019), CIVIL APPEAL NO. 549 OF 2020 (SLP (CIVIL) NO.23703 OF 2019), CIVIL APPEAL NO. 550 OF 2020 (SLP (CIVIL) NO.24146 OF 2019) - - - Dated:- 21-1-2020 - Mr. R.F. Nariman, Mr. Aniruddha Bose AND Mr. V. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion petition within a certain timeframe is pending before a Bench of 5 Hon ble Judges of the Supreme Court the High Court cannot pass any order in the matter, and the matter was ordered to be listed so as to await the outcome of the cases pending before the Supreme Court. 5. After waiting till January, 2018, on 29.01.2018, the Appellant, in the Civil Appeal arising out of SLP(C) No. 18659 of 2019, filed Writ Petition (C) No.17 of 2018 before the same High Court asking for the following reliefs: i. Issue Rule Nisi; ii. To issue an appropriate Writ, Order or Direction as to this Hon ble Court may deem fit and proper; iii. To declare that Respondent No. 3 has incurred disqualification for being a member of the Manipur Legislative Assembly under para 2(1) (a) of the Xth Schedule to the Constitution of India in terms of law laid down by the Constitution Bench of the Hon ble Supreme Court in Rajendra Singh Rana and Ors. -Vrs- Swami Prasad Maurya and Ors. reported in (2007) 4 SCC 270. iv. If the Hon ble High Court is pleased to consider that the prayer made in para no. (ii) and (iii) above deserve merit for a favourable order, a writ in the nature of Quo Warranto be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke it clear that the disqualification contained in paragraph 2(1)(a) of the Tenth Schedule is clearly attracted. The High Court then cited several judgments on the writ of quo warranto but ultimately came to a finding that since the very same issue was pending before a Constitution Bench of the Supreme Court, it would not be appropriate for the High Court to pass any order for the time being, which would include orders relating to the inaction or indecision on the part of the Speaker, as well as the issuing of a writ of quo warranto. The High Court thus ultimately declined to grant any relief in the writ petition, as a result of which the Appellant is before us. 8. Shri Kapil Sibal, learned Senior Advocate appearing on behalf of the Appellant, in the Civil Appeal arising out of SLP(C) No. 18659 of 2017, has argued that the Speaker in the present case has deliberately refused to decide the disqualification petitions before him. This is evident from the fact that no decision is forthcoming till date on petitions that were filed way back in April, 2017. Further, it is clear that notice in the present disqualification petition was issued by the Speaker only on 12.09.2018, long afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly incorrect in holding that the Speaker s decision under the Tenth Schedule would be in the nature of an alternative remedy and held that this would be directly contrary to several judgments of this Court, in particular, Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, which states that the Speaker has exclusive jurisdiction to decide disqualification questions that are referred to him. In any case, she argued that a Three Judge Bench cannot decide the present case and has to await the judgment of a Five Judge Bench which has been made on a specific reference made by a Two Judge Bench of this Court. She also distinguished the sheet anchor of Shri Sibal s case i.e. the judgment in Rajendra Singh Rana (supra) by stating that the facts there were completely different and that ultimately judicial review took place only because there was a final decision of the Speaker in that case. Further, because of the fact that the life of the Assembly was about to end, this Court using its powers under Article 142 of the Constitution of India in an extra-ordinary situation decided the petition for disqualification itself. Both these featu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Speaker of the Telangana State Legislative Assembly on 23rd August, 2014, and despite the hopes and aspirations expressed by the impugned judgment, the Speaker has chosen not to render any decision on the said petitions till date. We, therefore, place the papers before the Hon'ble Chief Justice of India to constitute an appropriate Bench to decide this question as early as possible. 11. We would have acceded to Mrs. Madhavi Divan s plea that in view of this order of a Division Bench of this Court, the hearing of this case ought to be deferred until the pronouncement by a Five Judge Bench of this Court on the issues raised in the present petition. However, we find that this very issue was addressed by a Five Judge Bench judgment in Rajendra Singh Rana (supra) and has already been answered. Unfortunately, the decision contained in the aforesaid judgment was not brought to the notice of the Division Bench which referred the matter to Five Hon ble Judges of this Court, though Rajendra Singh Rana (supra) was sought to be distinguished in Kuldeep Bishnoi (supra), which was brought to the notice of the Division Bench of this Court. 12. Backtracking a little, it is important t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. xxx xxx xxx 13. These provisions in the Tenth Schedule give recognition to the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election. 14. The Court dealt with contentions (E) and (F) together as follows: 95. In the present case, the power to decide disputed disqualification under Paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence. 111. In the result, we hold on contentions (E) and (F): That the Tenth Schedule does not, in providing for an additional grant (sic ground) for disqualification and for adjudication of disputed disqualifications, seek to create a non-justiciable constitutional area. The power to resolve such disputes vested in the Speaker or Chairman is a judicial power. That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned. That the deeming pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med support to Shri Mulayam Singh Yadav before the Governor on 27.08.2003 had incurred the disqualification mentioned in paragraph 2(1)(a) of the Tenth Schedule. Meanwhile, a group of 37 MLAs, said to be on behalf of 40 MLAs elected on BSP tickets, requested the Speaker to recognize the split in the BSP on the basis that one-third of the members of BSP consisting of 109 legislators had separated from the BSP. On 06.09.2003, therefore, the Speaker did three things first, he accepted that 37 out of 109 comprises one-third of the members of the BSP, which amounted to a split, this group being known as the Loktantrik Bahujan Dal. This Dal had merged with the Samajwadi Party which merger was then accepted by the very same order dated 06.09.2003. Third, the Speaker did not decide the application seeking disqualification of the 13 MLAs who were part of the 37 MLAs who appeared before the Speaker, and adjourned the disqualification petition. Meanwhile, since a writ petition was filed in the High Court of Judicature at Allahabad before the Lucknow Bench against this order, the Speaker passed another order on 14.11.2003, stating that the order adjourning the petition for disqualification w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er in the case on hand cannot be considered to be an order in terms of the Tenth Schedule to the Constitution. The Speaker has failed to decide the question, he was called upon to decide, by postponing a decision thereon. There is therefore some merit in the contention of the learned counsel for BSP that the order of the Speaker may not enjoy the full immunity in terms of para 6(1) of the Tenth Schedule to the Constitution and that even if it did, the power of judicial review recognised by the Court in Kihoto Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC 412 : (1992) 1 SCR 686] is sufficient to warrant interference with the order in question. [Emphasis Supplied] 19. The Court also hastened to add: 29. In the case on hand, the Speaker had a petition moved before him for disqualification of 13 members of BSP. When that application was pending before him, certain members of BSP had made a claim before him that there has been a split in BSP. The Speaker, in the scheme of the Tenth Schedule and the rules framed in that behalf, had to decide the application for disqualification made and while deciding the same, had to decide whether in view of para 3 of the Tenth Schedule, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings in Parliament or proceedings in the legislature of a State in para 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures. 97. That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of Members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under para 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under para 6(1) of the Tenth Schedule. After referring to the relevant aspects, it was held: (SCC p. 707, para 100) 100. By these well known and accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendment to the writ petition. It is indisputable that in the order that was originally subjected to challenge in the writ petition, the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 MLAs. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of the High Court in exercise of its power of judicial review. [Emphasis Supplied] 21. Finding that the life of the Assembly was about to end and that if the 13 members were found to be disqualified their continuance in the Assembly even for a day would be illegal and unconstitutional, and that their holding of office as Ministers would also be illegal, the Court stated that it was bound to protect the Constitution and its values, and the principles of democracy, which is a basic feature of the Constitution, and then went on to declare that the writ petition will stand allowed with a declaration that the 13 members who met the Governor on 27.08.2003 stand disqualified from the U.P Legislative Assembly w.e.f. 27.08.2003 on the ground contained in paragraph 2(1)(a) of the Tenth Schedule. 22. It is clear from a reading of the judgment in Rajendra Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shewn that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the Plaintiff to protect himself against it if relief is denied to him in a quia timet action. 26. This statement of the law has subsequently been followed by recent English decisions reported as London Borough of Islington v. Margaret Elliott [2012] EWCA Civ. 56 (See paragraph 30) and Vastint Leeds BV v. Persons Unknown [2018] EWHC 2456 (Ch.) in which a quia timet injunction was described in the following terms: 26. Gee describes a quia timet injunction in the following terms [Gee, Commercial Injunctions, 6th ed (2016) at [2- 035]]: A quia timet (since he fears) injunction is an injunction granted where no actionable wrong has been committed, to prevent the occurrence of an actionable wrong, or to prevent repetition of an actionable wrong. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable period. What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to. This period has been fixed keeping in mind the fact that ordinarily the life of the Lok Sabha and the Legislative Assembly of the States is 5 years and the fact that persons who have incurred such disqualification do not deserve to be MPs/MLAs even for a single day, as found in Rajendra Singh Rana (supra), if they have infracted the provisions of the Tenth Schedule. 29. In the years that have followed the enactment of the Tenth Schedule in 1985, this Court s experience of decisions made by Speakers generally leads us to believe that the fears of the minority judgment in Kihoto Hollohan (supra) have actually come home to roost. Verma, J. had held : 181. The Speaker being an authority within the House and his tenure being dependent on the will of the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy. 31. It is not possible to accede to Shri Sibal s submission that this Court issue a writ of quo warranto quashing the appointment of the Respondent No.3 as a minister of a cabinet led by a BJP government. Mrs. Madhavi Divan is right in stating that a disqualification under the Tenth Schedule from being an MLA and consequently minister must first be decided by the exclusive authority in this behalf, namely, the Speaker of the Manipur Legislative Assembly. It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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