I. Introduction
The current question that we are about to delve into is undoubtedly of much constitutional significance as it has the potential to render the anti-defection law dead letter. But apart from it, the workability of the law, as it exists today, is also of much significance for the political parties, who during their governance ordinarily enjoy the privilege of having the Speaker from their group. In this way, the ruling party hangs the Constitution at the peril of destruction by controlling and strangulating the independence of the Speaker’s position in the House or an Assembly, as the case may be.
One may easily reckon that the author is talking about a situation when disqualification petition(s) is filed against the member(s) of the ruling party, in such instances, it is not unusual anymore to witness that the Speaker of the House or an Assembly turns a deaf ear and comfortably pretends to forget about the obligation he is required to discharge under Para 6 of the anti-defection law (power of the Speaker to adjudicate disputes). One may not require much brainstorming for speculating reasons for this omission. The Speaker might succumb to the pressure from the distinguished party leaders or act likewise in an attempt to save his ruling party on the floor of the House or the Assembly, or perhaps, to maintain cordial relationship with the accused member(s). This scenario is expected to be witnessed frequently when the House or Assembly is nearing dissolution.
Although, Para 7 of the Tenth Schedule (bar of jurisdiction of courts) was struck down by the Supreme Court long ago, it can be said without hesitation that the Speaker still enjoys finality and unlimited powers under the Tenth Schedule. One may counter the aforesaid statement by arguing that it cannot be the case because decision of the Speaker under the Schedule can always be assailed for judicial scrutiny under Article 226 of the Constitution. This bone of contention, though deserves some acceptance, is devoid of pragmatism and can merely be viewed hypothetically. What needs to be remembered hitherto is that the law allows “judicial review” of the matter and not simpliciter adjudication upon knocking the doors of the Court without any order of the Speaker as to disqualification. In fact, such an argument loses its flair with an added menace of no timeline set out for the Speaker to adjudicate the petitions before him, which effectively leaves the workability of the anti-defection law in accordance with the whims and fancies of the Speaker.
This directly takes us to a question of law that can be firmly described as whether the High Court can itself adjudicate and finally dispose of the disqualification petition filed before the Speaker, in absence of any decision taken by the Speaker on those petitions. To put it differently whether the High Court while exercising writ jurisdiction is competent enough to disqualify the accused members by usurping and assuming the powers of the Speaker.
II. Legal conundrum faced by the judiciary
Just like every coin has two sides, the constitutional minds too share difference of opinion. The first batch of judgments preach that on careful reading of the judicial precedents available on defection law, it has been made clear by the Supreme Court in what can be called as the most authoritative precedent that, although the High Court does not sit in appeal against the order of the Speaker but inheres a limited judicial review over the decision of the Speaker in such cases.[1] Here, the matter involves no such decision made by the Speaker and hence, there arises no question for judicial “review”. To sail further on this view, it is imperative to quote para 110 of the case Kihoto Hollohan v. Zachillhu, which runs as follows:
110. In view of the limited scope of judicial review that is available on account of the finality clause in Para 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would 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.[2]
It can be easily inferred that not only the final adjudication but even quia timet actions are not permitted to be exercised by the courts. The term quia timet literally means “because he fears or apprehends”.[3] It is synonymous to pre-emptive or precautionary action[4] and, it would not be the correct approach because there is no decision made by the designated authority within the Schedule, not even interlocutory. The latter half of the quoted passage simply provides for an exception to the said pre-emptive relief only in case of the Speaker disqualifying members as an interim measure and not the other way around. If the reverse is allowed to prevail, whereby, the High Court starts granting interim reliefs without there being an order passed by the Speaker, then it would get hit by the well-settled principle of our Constitution, namely, separation of powers and independence of each institution of the Government. This would tantamount to bypassing of powers granted by the Constitution itself and would perhaps add to the accusation of judicial overreach, which the Indian courts are facing today. The seeds of this particular thought matured in Haryana Vidhan Sabha v. Kuldeep Bishnoi[5] (hereinafter referred to as “Haryana Assembly case”), the elaborate analysis of which will be done later in this article.
In addition to the above argument, this school of thought says that there could be essential factual questions required to be determined by way of oral evidences, which, the High Courts are not competent to decide while exercising its powers under Article 226 of the Constitution[6]. Although, this bone of contention seems thought-provoking but is merely procedural in nature, and thus warrants no detailed discussion.
Therefore, according to this view the courts can neither finally decide the petitions by assuming itself as the competent authority under the Schedule nor can pass an interim order in the nature of disqualifying the accused member(s) till the time their petitions are considered by the Speaker.
On the contrary, the other group opines that the Speaker is duty-bound to decide the disqualification petitions within a reasonable time despite the fact that there are no set timelines provided in the Tenth Schedule or the Rules thereof. The expression “reasonable time” must be construed as any time much before the completion of lifespan of the House or the Assembly. This category advocates that to protect the ultimate democratic and constitutional ethos, it is necessary for the judiciary to treat the jurisdiction of the Speaker as mere “alternate forum” in such cases. The only judicial opinion to substantiate this view is the prima facie observation made by the High Court of Manipur to the preliminary objection as to the jurisdiction of High Court[7] (hereinafter referred to as “the High Court order”), although very recently it has been partly reversed by the Supreme Court in Keisham Meghachandra Singh v. Manipur Legislative Assembly,[8] (hereinafter referred to as “the Supreme Court judgment”) and rightly so. However, this pronouncement of the Supreme Court is also not free from contentious issues for reasons that it took a sharp turn by relying upon a Constitutional Bench judgment titled Rajendra Singh Rana v. Swami Prasad Maurya,[9] (hereinafter referred as “the Constitutional Bench judgment”) which is dated anterior to Haryana Assembly case [10]referred hereinabove.
At this stage, the question that comes to the fore is what the law today is and which line of thought should be considered as consistent with the prevailing legal scheme and circumstances. It is noteworthy that the reason for persistently advocating the respective ideas is grounded upon what the proponents of literal rule and golden rule believe while construing provisions. Pertinently, the said rules of interpretation have their boundaries beyond which if a law person travels, would possibly face repercussions. However, what remains to be seen is which among the abovementioned views qualifies the test of legal correctness without infracting the well-defined bounds. To understand the same with precision, it is indispensable to trace the judicial development till date.
III. The Conspectus of Judicial Utterances
In order to understand the aforesaid, it is important to backtrack and discern what transpired in Haryana Assembly case[11] and thereafter in several such cases including Manipur Assembly case[12] (both the High Court order and the Supreme Court judgment). Now, to begin with the chain of events, Haryana Assembly case [13] encountered these unique set of facts for the first time. The Court was called upon to deal with the inordinate delay by the Speaker in considering the disqualification petitions against five (5) members of the assembly (MLAs) who were neither the ones upon whom the survival of the Government depended nor the State Assembly elections were set to take place soon. At the same time, it was also true that the Court inferred mala fide conduct of the Speaker, who was keeping interests of his faction above his constitutional duty. Consequently, the Court examined all the authorities available on the subject and came to the conclusion that Kihoto Hollohan case[14] carves out a solitary exception in case of suspension made by the Speaker, and grounds of mala fide, perversity, want of rules of natural justice are only available after final decision made by the Speaker. Therefore, howsoever peculiar the facts may be, if the Speaker has not passed any order disposing of the petitions, no occasion for the Court arises to assume powers of judicial review. Here, it would not be out of context to point out that the Bench of two Judges indeed took cognizance of the irrelevance of those five MLAs in the formation of the Government and remaining period for next State elections, but restricted their conscience to carve out another exception qua cases where the circumstances emerge per contra.
The Court nevertheless, devised an unprecedented measure by directing the Speaker to dispose of the pending petitions within a specific time-frame of four months. This was clearly in the nature of issuing mandamus. This method is certainly not devoid of intrinsic problems, which are highlighted later on. Thereafter, the Supreme Court encountered this question, amongst other issues, in Orissa Legislative Assembly v. Utkal Keshari Parida,[15] where again it set out timeline for the Speaker to decide the petitions. Till then, this problem had found deep roots in the democratic soil of India. Considering another matter, a two-Judge Bench of the Supreme Court referred this issue for consideration by a Constitutional Bench to finally decide whether such timelines can be framed by the High Court under prevailing scheme of things, of course along with the larger question of laying down the yardstick for High Courts over the Speaker under the defection law.[16] The desire to refer the matter arose when the Speaker disputed the very jurisdiction of the Supreme Court to entertain such issues.
Amidst its pendency before the Supreme Court, few High Courts dealt with the same problem. A Division Bench of the High Court of Bombay in Indian National Congress v. State of Goa,[17] held that “courts cannot interfere in a proceeding under Tenth Schedule before the Speaker gives a decision as remedy under Para 6 of the Tenth Schedule is not an alternate remedy but the sole remedy available”. Another Division Bench of the same High Court had observed that power to formulate timeline for the Speaker cannot be gleaned from the Schedule or the Rules framed by the Speaker thereunder.[18] Similarly, a Division Bench of the High Court of Madras in R. Sakkarapani Whip v. T.N. State Legislative Assembly[19] dismissed the writ petition on preliminary ground of judicial restraint to take up the matter while these impugned questions were pending before the Supreme Court. It is pertinent to mention that all these judgments followed the same pattern of not adjudicating the lis between the parties as determination of the law by the Supreme Court was much awaited, nor was any sort of relief granted in favour of the petitioners (not even directing the Speaker to decide the petitions in a particular time period).
Out of the lot, the case of Manipur Legislative Assembly is a little different. A writ petition[20] was filed before the High Court seeking direction for disposal of disqualification proceedings within reasonable period. However, initially noting that the impugned issue was pending adjudication, the High Court kept the matter at abeyance till any substantial orders were passed by the Supreme Court. Subsequently, another writ was filed asking for final adjudication of disqualification petition without any order of disposal from the Speaker. Notably, the petitioner had extensively relied upon the Constitutional Bench judgment[21]. The High Court, in an unexpected turn of events, though refrained from granting any relief to the petitioners but recorded strong prima facie views by noting that the power of the Speaker is that of a tribunal and the remedy provided under Para 6 of the Schedule is nothing but discretionary, which can be availed before approaching the High Courts.[22] It went on to observe that where the members are found to have incurred prima facie disqualification under the Schedule, the court cannot be expected to sit as mere spectator and ought to come to the rescue of the intention of the lawmakers, and perhaps, protect the ultimate goal of the law. It is no doubt true that the Bench, albeit, did not decide the issue, but likewise, ought to have refrained itself from making such sketchy remarks.
This matter in appeal came up for consideration before a Bench of three Judges of the Supreme Court, the verdict of which has been pronounced lately, setting aside the High Court’s view and partly allowing the petitions so far as the question of directing the Speaker to consider the disqualification petitions within a time-limit is concerned. The Court differed on the point of deciding the petition itself but held that the maximum that can be granted is direction setting out reasonable timeline. It might surprise many that the Court cancelled the reference made to the Constitutional Bench by noting that the impugned issue stood settled in Swami Prasad Maurya case[23] (Constitutional Bench judgment). It pertinently relied upon paras 40 and 41 of the same, the relevant extracts of which are reproduced as follows:
40. Coming to the case on hand, it is clear that the Speaker, in the original order, left the question of disqualification undecided. Thereby he has failed to exercise the jurisdiction conferred on him by Para 6 of the Tenth Schedule. Such a failure to exercise jurisdiction cannot be held to be covered by the shield of Para 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf … it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered with…
41. … 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.[24]
With so much significance being attached to the Constitutional Bench judgment, it becomes inevitable to cull out its relevant factual findings to understand the fulcrum of this issue. In this case, initially thirteen (13) members of the ruling party approached the Governor of the State concerned and demanded to call the opposition party to form the Government. Subsequently, disqualification petitions were filed against them. However, it was claimed that they form part of thirty-seven (37) members and together they constitute a legit split in accordance with Para 3 of the Tenth Schedule, and therefore cannot be disqualified. The Speaker while keeping the disqualification petitions (filed prior to the claim of split) under Para 2 of the Tenth Schedule pending, accepted the requirements of Para 3 and held that alleged liability of disqualification cannot be imposed on these members. Thereafter, this action of the Speaker was challenged before the High Court. The Speaker, albeit at first, adjourned the pending petitions till the time proceedings are held before the High Court by a specific order, but after more than a year, the Speaker finally rejected the petitions for reasons best known to him. Considering this development, an application to amend the writ petition was filed, which had a rough stint at the High Court. Nevertheless, the writ was finally decided by a Full Bench of the High Court, whereby, it directed the Speaker to consider the disqualification petitions against those thirteen members. The decision of the High Court was assailed before the Supreme Court, wherein, the Bench of five Judges held that Para 3 (split) and/or Para 4 (merger) are mere defences available to the accused members while the disqualification proceedings are conducted. Any attempt to decide such claims of split or merger independently, goes to the root of the matter and thus, is illegal. The Court went on to disqualify the members on the pretext that they were unable to prove the claim of split before the Court even prima facie and secondly, the assembly was at the tail end of its life, which did not provide much time for remitting the petitions for fresh consideration by the Speaker.
IV. Testing the edifice of the “Supreme Court Judgment” (Manipur Assembly case)
Switching back to the focal point, it is important to highlight that for the purpose of this article, only those questions pertaining to the merit of the Supreme Court judgment need deliberation and not those of practice and procedure. The foregoing discussion shall endeavour to put forth the author’s personal opinion as to why reliance placed upon the Constitutional Bench judgment[25] is misplaced. At the outset, it cannot be disputed that the High Court order[26] was a faulty authority inasmuch as it ought to have restrained itself to pass such sketchy remarks when the issue was pending before the Supreme Court. Further, those observations, in a way, conflicted with the relevant portion of the law laid down in Kihoto Hollohan case[27] which has been affirmed by another Constitutional Bench in Raja Ram Pal v. Lok Sabha,[28] Above all, if at all it could stand on its footing, it would have led to the practice of “forum jumping”, meaning thereby, that the faction feeling aggrieved even by reasonable deference of the Speaker would have opted the alternate remedy before the High Court which would have defeated the real intent of Para 6 of the Schedule.
When the Supreme Court faced this challenge in the appeal, it was expected that the Court would club the matter with the referred matter and try to put the question to rest as expeditiously as possible. However, it requires reiteration that the Court took a step back and pointed out that the issue pending had been already settled in Swami Prasad Maurya case[29] (Constitutional Bench judgment). It is author’s respectful opinion that the question is still alive and hence, open for consideration by a larger Bench. The aforesaid view of the author can be supplemented by the following three grounds:
- As has been admitted in the Supreme Court judgment[30], the judgment of the Constitution Bench consisted of totally different facts. Also, the Court was fortunate enough to have a final decision by the Speaker pertaining to acceptance of the claim of split under Para 3 of the Schedule. One may counter this by arguing that it was not the decision pertaining to disqualification petition under Para 2 and those petitions were kept alive by the Speaker by a specific order. However, it deserves a mention that subsequently the petitions were dismissed by the Speaker and consequently the High Court finally decided the pending writ petition.[31] In a way, the High Court and even Supreme Court at least had the opportunity to peruse the final order and thereafter, consider the second writ and appeal thereof. Even otherwise, if the admissibility of the successive order of dismissal of disqualification petition is doubted on the premise that matter was under consideration at that relevant time, the Supreme Court in that very judgment had clarified previously that Paras 3 and 4 cannot act as independent provisions and operate as mere defence available while hearing disqualification proceedings. A logical inference that can be drawn from the abovementioned proposition of law is if the Speaker had accepted the claim of split under Para 3, this ought to have resulted into automatic rejection of disqualification petitions against those members, regardless of how the Speaker purportedly played with the provisions of law which could be attributed to his allegiance towards any political party or whose memberships were at stake. Thus, it would not be wrong to suggest that both, petition under Para 2 and application under Para 3 or Para 4, go hand in hand, and the Court in its order merely interpreted the law as it was and thereby, rejected the colourable order of the Speaker. Further, the judgment in the later part goes on to say that if the members who abandoned their party fail to prove that there was a legit split, consequently, not only them but other members who supported their cause of split would automatically render themselves liable for proceedings under Para 2 of the Schedule.[32] The reverse of it shall naturally sustain in law, where supposedly their claim of split was duly accepted, and then it would have amounted to straight rejection of petitions under Para 2. Therefore, the courts had the final order passed by the Speaker, howsoever illegal it was held to be, but in presence of it nothing remained for the Speaker to adjudicate and this paved the way for the Bench to conclusively decide the issues arising therein.
- The second reason is that the matter referred to the Constitutional Bench of five Judges involved a specific question that “whether the High Courts, in absence of a final decision by the Speaker, have power under Article 226 of the Constitution to direct the Speaker to dispose of the disqualification petitions within a restricted period of time”.[33] Neither was this proposition under consideration for the Constitutional Bench in Swami Prasad Maurya[34] nor any argument to supplement or supplant the said issue was ever raised before the Court. The Court and the parties were, from the very inception, on the issue that whether Paras 3 and 4 can be said to operate independently of Para 2 of the Schedule, which the Speaker presumed in affirmative and thereupon passed an order under Para 3 i.e. recognising the split.[35] Therefore, in these circumstances, any remarks, incidental or co-incidental, upon the issue at hand can merely be said as passing observations by the Court and thus, cannot be treated conclusive.[36]
- Lastly, non-determination of the issue on merits may possibly lead to an ambiguity in future. The Court in the Constitutional Bench judgment[37] though acknowledged the right course but went on to decide the petitions without remitting to the Speaker to save them from being rendered as infructuous due to approaching dissolution of the Assembly, and thereby carved out an exception to the general law. The Supreme Court judgment[38] in the penultimate paragraph of the Manipur Assembly case recognised that the assembly was not nearing its end and therefore, no relief of such nature can be granted as was granted in Swami Prasad Maurya case[39]. In view of the aforesaid, it would not be surprising if High Courts begin to assume charge and determine the petitions where the assemblies are about to dissolve. As a result, it would stand in conflict with the decision in Kihoto Hollohan case[40], which was further affirmed in several other judgments and is the leading authority of the subject.
In light of these contentions, the author humbly opines that the issue is still open consideration by the five Judges, as referred by the two-Judge Bench in S.A. Sampath Kumar order[41] (supra) since the Supreme Court judgment[42] concerning the Manipur Legislative Assembly did not enjoy privilege of having a final order by the Speaker and the specific issue pending before the five Judges was not deliberated upon in the Constitutional Bench judgment[43], and not to forget the consequential perplexity that may arise in the future.
V. The law as it exists today – Judicial adventurism or constitutional protectionism
Be that as it may, we must see the things as they are and actuality is that the law has become settled (subject to abovesaid reservations) on the impugned proposition of law by the Supreme Court judgment[44] in the Manipur Legislative Assembly. Under the existing law and circumstances, the practice of directing the Speaker to decide the disqualification petition within a specific time-frame seems to be the need of the hour in absence of any provision to safeguard the constitutional mandate. It seems impractical for the courts to sit over and witness the defeat at the hands of such subterfuge. However, this too has not remained free from criticism as some argue that the domain of judicial overreach is spreading widely and this is the new kid on the block as there is no provision or rule that inhere this power to the High Court without examining the final order by the Speaker at the first instance.
However, one might read sufficient literature on judicial activism and judicial adventurism and become certain that judicial activism is a byproduct of mischief rule of interpretation. It becomes adventurism when it is exercised excessively.[45] In the present scenario, although the answers to all our scepticism can be found in an effective amendment to Para 6 of the Schedule[46] but as of now the current measure seems workable as it does not touch the merits of the petitions but is a directive given after taking into account all the objective considerations of deliberate inaction, requirement of expedient decision and consequences that could ensue if a final decision is not passed within a reasonable time. The judiciary believes that this was the minimal and at the same time maximal that could have been done to subserve the larger objective of the anti-defection law. However, any practice touching merits of the disqualification petitions would possibly accuse the judiciary for judicial adventurism.
Having said all this, there are still a few elementary problems haunting this method of directing the Speaker to act in a time-bound manner. The foremost arises when the Speaker does not conform to the timeline set out by the High Court.[47] Whether any plenary steps could be taken by the High Court in such cases to ensure compliance? More importantly, what role would the parliamentary privileges play in safeguarding the Speaker’s non-compliance? These questions certainly need to be addressed without delay to make the method of setting out timeline for the Speaker an effective remedy.
*Practising Advocate at High Court of Delhi, District Courts and Tribunals.
[1] Kihoto Hollohan v. Zachillhu, (1992) Supp (2) SCC 651. See also, Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council, (2004) 8 SCC 747
[2] (1992) Supp (2) SCC 651, 711.
[3] Black’s Law Dictionary, 2nd Edn., (1910) available at (last visited on 18-5-2020).
[4] S.R. Bommai v. Union of India, (1994) 3 SCC 1; see also, Kuldip Singh v. Subhash Chander Jain, (2000) 4 SCC 50.
[6] R. Sakkarapani Whip v. T.N. Legislative Assembly, 2018 SCC OnLine Mad 1247.
(The same stand was taken by the respondents, however, the occasion to consider this question did not arise as the Court held it as the case involving simple evidence and not complex oral evidence.)
[7] Mohd. Fajur Rahim v. Manipur Legislative Assembly, 2019 SCC OnLine Mani 127.
[11] Ibid.
[12] Mohd. Fajur Rahim v. Manipur Legislative Assembly, 2019 SCC OnLine Mani 127; see also, Keisham Meghachandra Singh v. Manipur Legislative Assembly, 2020 SCC OnLine SC 55.
[13] Supra Note 5.
[16] S.A. Sampath Kumar v. Kale Yadaiah, 2016 SCC OnLine SC 1875.
[17] 2017 SCC OnLine Bom 8817.
[18] Vijay Namdeorao Wadettiwar v. State of Maharashtra, 2019 SCC OnLine Bom 2100.
[19] 2018 SCC OnLine Mad 1247.
[20]T.N. Haokip v. Speaker, Manipur Legislative Assembly, 2017 SCC OnLine Mani 137.
[21] Supra Note 9.
[22] Supra Note 7.
[23] Supra Note 9.
[24] Supra Note 9, ¶ 300.
[26] Mohd. Fajur Rahim v. Manipur Legislative Assembly, 2019 SCC OnLine Mani 127.
[28] Raja Ram Pal v. Lok Sabha, (2007) 3 SCC 184.
[29] Supra Note 9.
[30] Supra Note 8.
[31] Supra Note 9, ¶ 284-285.
[32] Id., ¶ 305.
[33] Supra Note 16.
[34] Supra Note 9.
[35] See, Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729.
[36] Punjab Land Development and Reclamation Corpn. Ltd. v. Labour Court, Chandigarh, (1990) 3 SCC 682; see also, Vijay Kumar Sharma v. State of Karnataka, (1990) 2 SCC 562.
[37] Supra Note 9.
[38] Supra Note 8.
[39] Supra Note 9.
[41] Supra Note 16.
[42] Supra Note 8.
[43] Supra Note 9.
[44] Supra Note 8.
[45]Bimal Kumar Chatterjee, Judicial Activism — Is it a Boon or a Bane, (2014) 3 SCC J-4, ¶ J-6.
[46]K.Vijaya Bhaskar Reddy, Sabotage of Anti-defection Law in Telangana, Economic & Political Weekly, 12-12-2015.
[47]See, supra Note 5. (The Supreme Court termed the act of the High Court as illegal in calling all the records from the Speaker and itself deciding the petitions for disqualification after noticing non-compliance of the timeline set out.)