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

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..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..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 answeredIn 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..No immunity from judicial scrutiny of Speaker’s decisionThe present Bench referred to the five-judge Bench judgment in Kihoto Hollohan v. Zachillhu & others, which held, among other things, that a Speaker does not enjoy immunity from judicial scrutiny while deciding disqualification petitions under Paragraph 6(1) of the Tenth Schedule. It was also held in this case that a Speaker or a Chairman, acting under Paragraph 6(1) of the Tenth Schedule, is a Tribunal.However, the Court in Kihoto Hollohan held that the scope of such judicial review was limited, and that mere procedural infirmities could not prompt judicial intervention.“…the scope of judicial review under Articles 136, and 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.”It was also held that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman. Further,“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.”Referring to the judgment in Rajendra Singh Rana (also delivered by a five-judge Bench), the Bench highlighted a similar factual matrix pertaining to that case, wherein the Speaker of the Uttar Pradesh Legislative Assembly failed to decide on the disqualification of 13 MLAs. That judgment noted,“This failure on the part of the Speaker to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure……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…We have, therefore, no hesitation in agreeing with the majority of the High Court in quashing the decisions of the Speaker.”Thus, the Court held in the present judgment,“…the very question referred by the Two Judge Bench in S.A. Sampath Kumar (supra) 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. Indeed, the same result would ensue on a proper reading of Kihoto Hollohan.”.Disqualified persons do not deserve to serve as MPs/MLAs even for a single dayThe Bench in the present case noted that a Speaker has to decided a petition under the Tenth Schedule within a reasonable period of time. In this regard, it was held,“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 (supra), if they have infracted the provisions of the Tenth Schedule.”.Should Speaker be entrusted with deciding disqualification petitions?The judgment goes on to cite the fears expressed by former Chief Justice of India JS Verma in the minority judgment in Kihoto Hollohan. Verma J had observed thus:“The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a Member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes.”This led the present Bench to observe that Parliament needs to rethink on conferring this power to the Speaker..“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.”Supreme Court.After making these observations, the Bench eventually held that the facts of the present cases differ from those in Rajinder Singh.“In the present case, the life of the legislative assembly comes to an end only in March, 2022 unlike in Rajinder Singh Rana (supra) 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.”Having said that, the Court directed the Speaker of the Manipur Legislative Assembly 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.If no such decision is forthcoming even after four weeks, the Court has granted liberty to the parties to apply for further directions.[Read the judgment]