Justices Aniruddha Bose, Rohinton Nariman and V Ramasubramanian
Justices Aniruddha Bose, Rohinton Nariman and V Ramasubramanian

Time for Parliament to rethink whether disqualification petitions ought to be entrusted to Speaker: Supreme Court

Aditya AK

In a judgment that raises important questions and also provides some clarity to anti-defection laws, the Supreme Court urged Parliament to have a rethink on whether a Speaker ought to decide on disqualification petitions filed under the Tenth Schedule to the Constitution of India.

The Tenth Schedule provides the circumstances under which a Member of Parliament or a State Legislative Assembly can be disqualified for defecting to another party. Disqualification petitions under the Tenth Schedule are decided by the Speaker of the concerned House.

Clause 6 of the Tenth Schedule
Clause 6 of the Tenth Schedule

Given the fact that a Speaker belongs to a particular political party, the Court has mooted that these disqualification petitions be decided by an independent permanent tribunal.

The Bench of Justices Rohinton Nariman, Aniruddha Bose and V Ramasubramanian observed,

“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.”
Supreme Court Bench of Justices Rohinton Nariman, Aniruddha Bose and V Ramasubramanian

The judgment was passed in a petition calling for the disqualification of Thounaojam Shyamkumar Singh - current Minister for Forest and Environment in the Manipur government - for defecting to the Bharatiya Janata Party (BJP) post the 2017 Assembly elections held in the state.

By way of background, the election for the Manipur Legislative Assembly was conducted in March 2017. The elections produced an inconclusive result, as none of the political parties were able to secure a majority. TS Singh initially contested as a candidate from the Congress Party and was duly elected as such.

Immediately after the declaration of the results, Singh, along with various BJP members, met the Governor of the State to stake a claim for forming a BJP-led government. Three days later, the Governor invited the BJP to form the government in the state. On the same day, Singh was sworn in as a Minister in the BJP-led government and continues as such till date.

Subsequently, thirteen applications were filed before the Speaker of the Manipur Legislative Assembly for the disqualification of Singh. It was alleged that Singh was disqualified under paragraph 2(1)(a) of the Tenth Schedule.

After the Speaker failed to take any action on these petitions, a writ petition was filed before the High Court of Manipur at Imphal. In September 2017, the High Court stated that as the issue of whether a High Court can direct a Speaker to decide a disqualification petition within a certain timeframe is pending before a Bench of five judges of the Supreme Court, it could not pass any order in the matter.

In July 2019, another petition filed before the High Court met a similar fate. However, the Court observed that the Speaker is a quasi-judicial authority who is required to take a decision within a reasonable time, which is much less than five years, the life of the House.

Since the High Court refused to grant any relief, the appellant approached the Supreme Court in appeal.

High Court of Manipur at Imphal
High Court of Manipur at Imphal Manipur HC website

Appearing for Congress MLA Keisham Meghachandra Singh, the appellant in the case, Senior Advocate Kapil Sibal argued that the Speaker has deliberately refused to decide the disqualification petitions before him, for over two years. He further stated that it cannot be expected that the Speaker will decide these petitions at all till the life of the Assembly of five years expires.

Representing the Speaker, Additional Solicitor General Madhavi Divan reminded the Court that a three-judge Bench cannot decide the present case, as it has to await the judgment of the Constitution Bench.

Reference to Constitution Bench already previously answered

In the case of SA Sampath Kumar v. Kale Yadaiah, the question of whether the Speaker’s action in deciding disqualification petitions is amenable to judicial review was referred to a Constitution Bench by a two-judge Bench in November 2016. The Bench in the present case noted that the same issue has already been decided by another Constitution Bench.

“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.”

Interestingly, Justice Nariman was part of the two-judge Bench that made the reference in Sampath Kumar.

Justice (retd.) RK Agrawal was part of the Bench along with Justice Nariman in the Sampath Kumar case.
Justice (retd.) RK Agrawal was part of the Bench along with Justice Nariman in the Sampath Kumar case.
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