Constitution of India – Tenth Schedule – Disqualification of a candidate nominated in Legislative Assembly elections on ground of defection – The election for the 11th Manipur Legislative Assembly was conducted in March, 2017 – None of the political parties were able to secure a majority i.e. 31 seats in a Legislative Assembly of
60 seats in order to form the Government – The Congress Party emerged as the single largest party with 28 seats and BJP with 21 seats – The respondent no. 3 contested as a candidate nominated and set up by the Congress party and was duly elected – On 12.03.2017, respondent no. 3 along with various BJP members met the Governor of the State and staked a claim for forming a BJP-led Government – Thereafter, the respondent no. 3 was sworn in as a Minister in BJP-led government – Applications were filed before the Speaker of the legislative Assembly between April and July, 2017 seeking disqualification of the respondent no. 3 under paragraph 2(1)(a) of the Tenth Schedule – No action was taken by the Speaker – Held: It is clear from a reading of the judgment in Rajendra Singh Rana and S.A. Sampath Kumar that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High court in exercise of the power of judicial review – Further, Kihoto Hollohan do not in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule – The Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable 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 the disqualification petition 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 – The only relief that can be given in these instant appeals is that the Speaker of the Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. Words and Phrases – "Quia timet" – Discussed.
Disposing of the appeals, the Court
Held: 1. It is clear from a reading of the judgment in Rajendra Singh Rana and, in particular, the underlined portions of paragraphs 40 and 41 that the very question referred by the Two Judge Bench in S.A. Sampath Kumar has clearly been answered stating that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph
6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review. [Para 22][154E-F] Rajendra Singh Rana v. Swami Prasad Maurya (2007)
4 SCC 270 : 2007 (2) SCR 591; S.A. Sampath Kumar v. Kale Yadaiah and Ors. SLP(C) No. 33677/2015 – relied on
2. Indeed, the same result would ensue on a proper reading of Kihoto Hollohan. Paragraphs 110 and 111 of the said judgment when read together would make it clear that what the finality clause in paragraph 6 of the Tenth Schedule protects is the exclusive jurisdiction that vests in the Speaker to decide disqualification petitions so that nothing should come in the way of deciding such petitions. The exception that is made is also of importance in that interlocutory interference with decisions of the Speaker can only be qua interlocutory disqualifications or suspensions, which may have grave, immediate, and irreversible repercussions. Indeed, the Court made it clear that judicial review is not available at a stage prior to the making of a decision by the Speaker either by a way of quia timet action or by other interlocutory orders. [Para 23][154G-H, 155A-B] Kihoto Hollohan v. Zachillhu & Ors. (1992) Supp. (2) SCC 651; [1992] 1 SCR 686 – relied on
Fletcher v. Bealey (1884) 28 Ch. D. 688; 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.) –
referred to.
3. On perusal of the various decisions, it shows that what was meant to be outside the pale of judicial review in paragraph
110 of Kihoto Hollohan are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger which will be irreparable in the sense that if the Speaker proceeds to decide that the person be disqualified, he would incur the penalty of forfeiting his membership of the House for a long period. Paragraphs 110 and 111 of Kihoto Hollohan do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule. Indeed, the Speaker, in acting as a Tribunal under the Tenth Schedule is bound to decide disqualification petitions within a reasonable 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, if they have infracted the provisions of the Tenth Schedule. [Para 28][157A-F]
4. 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. [Para 30][159A-C]
5. It is not possible to accede to appellant’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. The respondent 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 the appellant 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 facts in Rajinder Singh Rana. In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana where, but for this Court deciding the disqualification petition in effect, no relief could have been given to the petitioner in that case as the life of the legislative assembly was about to come to an end. The only relief that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. In case no decision is forthcoming even after a period of four weeks, it will be open to any party to the proceedings to apply to this Court for further directions/reliefs in the matter. [Para 31][159C-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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