Rajasthan High Court
Rajasthan High Court
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No jurisdiction to interfere with Speaker’s order on BSP MLAs, disqualification petition to be decided in three months: Rajasthan HC

The Court held that no exceptional circumstances exist in the present case to warrant its interference in the Speaker's order dated September 18, 2019.

Aditya AK

The Rajasthan High Court today held that the State Assembly Speaker’s order allowing the merger of six MLAs of the Bahujan Samaj Party (BSP) with the Congress was an administrative order, and consequently, the courts have no jurisdiction to interfere with the same (Bahujan Samaj Party v. Hon'ble Speaker, Rajasthan Legislative Assembly).

In a related matter, the High Court directed the Speaker to decide on the disqualification petition filed by one of the MLAs within three months.

One of the petitions in the matter decided by a Single Judge Bench of Justice Mahendra Kumar Goyal was filed by BJP MLA Madan Dilawar, who sought to quash the Speaker’s order dated September 18, 2019, by which the merger of the MLAs was accepted.

After hearing the parties and citing a number of judgments on the issue, the Court came to the conclusion that the impugned order of the Speaker was not a “decision” under paragraph 4 of the Tenth Schedule of the Constitution, which deals with anti-defection. The Court noted,

“This Court, in view of the fact that the order dated 18.9.2019 came to be passed in absence the claim of disqualification, is unable to persuade itself to acknowledge the order as having been passed under paragraph 4 or in the nature of adjudication on the claim of merger.”

The Bench agreed with the respondents’ contention that whenever any claim of merger is raised by an MLA, otherwise than by way of defence to the plea of defection, the Speaker is under an obligation, without any adjudication on merit of such claim, to accept the same. The judgment reads,

“…the order dated 18.9.2019 cannot be reckoned as a decision on the claim of merger vide paragraph 4 of the Tenth Schedule; but, only as an administrative order under the Rules of 1989.”

Rajasthan High Court

Having held so, the Court moved on to the scope of its interference in such a case, and whether it had jurisdiction to declare the BSP MLAs as disqualified on account of defection.

To answer these questions, the Bench referred to the Supreme Court’s landmark decision in Kihoto Hollohan v. Zachillhu, wherein it was held that the Speaker is the sole repository of the adjudicatory power under paragraph 6 of the Tenth Schedule to decide the question of disqualification.

As per this judgment, judicial review of a Speaker’s decisions to this effect may only be undertaken if there is violation of the constitutional mandate, mala fides, non compliance with rules of natural justice, and perversity. It was also held in Kihoto that the judicial review should not cover any stage prior to the making of a decision by the Speaker. It was thus held,

“…the Speaker, who enjoys a very high constitutional status, is the sole authority to delve upon the question of disqualification and while doing so, he acts as a quasi judicial Tribunal. Further, it is only his final decision, which can be subject matter of judicial review on limited parameters as prescribed in the case of Kihoto. The Court acquires jurisdiction only upon determination on the question of disqualification and not prior to that except in exceptional circumstances not obtaining in the present case.”

Justice Goyal further observed that the Speaker’s order, being administrative in nature, is immune to judicial review as per Article 212 of the Constitution, and that no exceptional circumstances exist in the present case to warrant the Court’s interference. It was held,

“Since, the order dated 18.9.2019 has been held to be an administrative order and not an order under paragraph 4 of the Tenth Schedule, this Court refrains itself from venturing into the question of its validity qua the parameters laid down therein.”

In view of the above, the Court held that it has no jurisdiction to interfere with the Speaker’s order, or to decide on the disqualification of the MLAs.

The Court also dealt with a plea challenging the Speaker’s order dated July 22 this year, by which he had rejected a disqualification petition filed by one of the MLAs on the ground of the Rajasthan Assembly Rules, 1989. Relying on the decision in Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Assembly, the Court held that this order was not legally sustainable. It held,

“Even otherwise also, once, the factum of alleged defection was brought to the notice of the Speaker, he was under the constitutional obligation to adjudicate upon the same.”

Thus, this petition was partly allowed and the Speaker’s July 22 order was set aside. The Court has directed the Speaker to take a decision on the disqualification petition within the period of three months, as mandated by the Supreme Court.

In September last year, Speaker of the Rajasthan Assembly CP Joshi had accepted the merger of six BSP MLAs with the Congress party. This move subsequently came to be challenged before the High Court by Dilawar and the BSP. A Single Judge Bench, while issuing notice to the Speaker in the petitions, had directed for a reply to be given by August 11.

The order of the Speaker, however, was not stayed by the Single Judge Bench, and the six BSP MLAs were not restrained from attending the proceedings of the House as Congress legislators.

This decision was appealed against before the Division Bench, which had also refused to stay the Speaker's decision, allowing the functioning of the BSP MLAs as Congress members. The matter was subsequently remitted to the Single Judge. Aggrieved by this order, the petitioners approached the Supreme Court.

Today, the Supreme Court disposed of the petition as infructuous, in light of the Rajasthan High Court's decision.

Before the High Court, BSP was represented by Senior Advocate Satish Chandra Mishra, while Senior Advocates Harish Salve and Satya Pal Jain appeared for Dilawar.

Senior Advocate Kapil Sibal appeared for the Speaker, while Advocate General MS Singhvi represented the Secretary of the Rajasthan Legislative Assembly.

Senior Advocates Rajeev Dhavan, Sidharth Luthra, Devadatt Kamat, and GS Bapna appeared for the BSP MLAs. Senior Advocates Vivek Tankha and RP Singh represented the Indian National Congress, intervenor in the matter.

[Read the judgment]

Bahujan Samaj Party v. Hon'ble Speaker, Rajasthan Legislative Assembly.pdf
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