Breaking: Madras High Court delivers split verdict in MLA disqualification case

Breaking: Madras High Court delivers split verdict in MLA disqualification case

Meera Emmanuel

The Madras High Court today delivered a split verdict in the case concerning the disqualification of 18 AIADMK MLAs last September.

The verdict was pronounced by the Bench of Chief Justice Indira Banerjee and Justice M Sundar, close to five months after it reserved its order in the case last January.

Chief Justice Banerjee held that there is no scope for judicial interference in the decision of the Speaker P Dhanpal to disqualify the 18 MLAs, and hence dismissed all the petitions. As stated in the common order,

“In my opinion, the view taken by the Speaker is a possible, if not plausible view, and I am unable to hold that the said decision is any way unreasonable, irrational or perverse. It is well settled that when two views are possible, the High Court does not in exercise of its power of judicial review conferred under Article 226 of the Constitution of India interfere with the decision just because it prefers the other view. No interference is, therefore, warranted with the impugned order passed by the Speaker.

The writ petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.”

Justice Sundar, however, found that the Speaker’s decision was liable to be set aside. He was of the view that all petitions preferred by the 18 MLAs should be allowed. His findings have been recorded as follows:

15(a) Sum totality of discussion supra leads this Court to inevitably conclude that the impugned order of the Speaker disqualifying 18 writ petitioners herein deserves to be set aside.

15(b) Owing to all that have been set out supra, the order of Speaker dated 18.09.2017 which is the impugned order, is set aside with regard to the 18 writ petitioners herein as being hit by all four grounds of judicial review qua Speaker’s order as laid down by the Supreme Court in Kihoto case [Kihoto Hollohan v Zachillhu], i.e., hit by perversity, non compliance with the principles of natural justice, mala fides (qua S.T.K.Jakkaiyan issue) and violation of constitutional mandate

15(c)It is made clear that this order is being passed without relying on Yeddyurappa case owing to the controversy regarding implied overruling / per incuriam qua Nabam Rebia which has been left open.”

In view of the conflict, the Court will designate a third judge to make the final decision in the case.

This third judge will be nominated by Justice HG Ramesh, the senior most judge after the Chief Justice.

Meanwhile, the stay on the floor test and elections in the 18 constituencies will continue.

Case Background

The case can be traced to August 2017, when 19 MLAs of the ruling AIADMK faction informed the Governor that they had no confidence in Chief Minister E Palaniswamy-lead AIADMK government.

Eventually, 18 of the 19 MLAs were disqualified by the Speaker on grounds of defection. One MLA was spared after he tendered an apology and withdrew his earlier representation.The 18 however challenged their disqualification in the Madras High Court.

In due course, this case was clubbed along with other related petitions and posted before Justice M Duraiswamy. After a roster change, these petitions were eventually placed before Justice K Ravichandrabaabu.

However, Justice Ravichandrabaabu found it appropriate to refer the cases to a larger bench, given his opinion that there were questions of Constitutional significance to be decided.

The batch of petitions drew in the services of a number of Senior Counsel. Senior advocates Dushyant DavePS RamanKapil SibalAmarendra Sharan, Salman Khurshid and AM Singhvi have made appearances on behalf of the petitioners, who include the disqualified MLAs and the Opposition party, DMK.

Senior advocates CS VaidyanathanAryama SundaramRakesh DwiwediAL Somayaji and Mukul Rohatgi, as well as AG Vijay Narayan have appeared for the respondents in the various petitions, including members of the ruling AIADMK government and authorities of the Tamil Nadu Legislative Assembly.

After hearing another fresh round of arguments, the matter concerning the 18 disqualified AIADMK MLAs was reserved for judgement by the Bench of Chief Justice Indira Banerjee and Justice M Sundar last January.

It can be noted that the petitions clubbed together were filed around three major events.

A privilege committee notice issued in July 2017 to MK Stalin, Leader of the Opposition party, DMK and 20 other DMK MLAs, for having brought Gutka (chewing tobacco) to the Assembly floor.

The demonstration, which was aimed to exhibit the easy availability of the banned substance in the state, did not quite have the desired effect, when the Speaker initiated Privilege Committee proceedings against them instead. A challenge made to this notice is still pending judgement.

A trust vote held in February 2017, in which incumbent Deputy Chief Minister O Paneerselvam (OPS) and 10 other AIADMK MLAs voted against Chief Minister EPS, contrary to the AIADMK Whip’s directions.

As the 18 MLA disqualification case the Gutka case came up, petitions were filed protesting the Speaker’s apparent reluctance to disqualify OPS and the 10 other MLAs for their February rebellion. This case has been dismissed by a Bench of Chief Justice Indira Banerjee and Justice Abdul Quddhose last April. The Bench found that to direct the Speaker to act against the 11 MLAs would amount to judicial overreach.

The case against the disqualification of the 18 AIADMK MLAs for withdrawing support for the EPS-lead Government.

In the background of these matters, are demands for a Floor Test, which had been stayed pending a decision in these cases. Demands for a Floor Test had gained momentum as various players argued that the withdrawal of support by the 18 MLAs meant that the ruling Government was reduced to a minority.

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