Summary
Disqualification petitions against MLAs who allegedly defected after the 2023 Telangana election remained pending before the Speaker, who did not even issue notice for over seven months. The Supreme Court held that the Speaker deciding petitions under Paragraph 6 of the Tenth Schedule acts as a tribunal subject to Articles 136, 226 and 227; that the bar on quia timet actions in Kihoto Hollohan only prevents orders injuncting or delaying the Speaker's decision and does not interdict judicial review in aid of a prompt decision; that the issue is no longer res integra after Rajendra Singh Rana, Subhash Desai and Keisham Meghachandra Singh; and that the Division Bench wrongly reversed the Single Judge's modest direction to fix a hearing schedule. The Speaker was directed to decide the petitions within three months.
Issues
- Whether a High Court under Articles 226 and 227, or the Supreme Court under Article 136, can direct the Speaker of a Legislative Assembly to decide disqualification petitions under the Tenth Schedule within a specified time, or whether such a direction is a quia timet action barred by Kihoto Hollohan.
- Whether the Division Bench was justified in setting aside the Single Judge's direction that the Speaker fix a schedule of hearing within four weeks.
- Whether the Supreme Court should itself decide the disqualification petitions, as the Constitution Bench did in Rajendra Singh Rana.
- Whether the pending reference to a larger Bench in S.A. Sampath Kumar precluded a decision on the question.
Provisions considered
- Tenth Schedule, Paragraph 2(1) read with Article 191(2), Constitution of IndiaThe disqualification petitions were filed under Paragraph 2(1) read with Article 191(2) alleging that the MLAs had voluntarily given up membership of the party on whose ticket they were elected; the Court noted that a member who changes affiliation after election is expected to give up his seat and go back to the electorate (Kihoto Hollohan). (¶¶ 3.6, 27, 61, 62)
- Tenth Schedule, Paragraphs 6(1) and 6(2), Constitution of IndiaThe Speaker's power to decide disputed disqualifications under Paragraph 6(1) is pre-eminently judicial and the Speaker is a tribunal; the finality clause does not abrogate judicial review for jurisdictional errors, and the deeming fiction in Paragraph 6(2) only protects proceedings from mere procedural irregularities. The Court relied on this to hold that judicial review in aid of a prompt decision is available. (¶¶ 27, 28, 29, 30, 31, 32, 33, 34, 80, 81, 82, 100)
- Articles 136, 226 and 227, Constitution of IndiaAn order of the Speaker under Paragraph 6 is reviewable under these Articles for violation of constitutional mandate, mala fides, breach of natural justice and perversity; the submission that the High Court cannot invoke Article 227 against the Speaker was rejected because Kihoto Hollohan itself refers to Article 227 and the difference between certiorari under Article 226 and Article 227 is thin (Surya Devi Rai). (¶¶ 33, 36, 49, 81, 100)
- Articles 122 and 212, Constitution of IndiaThe Speaker exercising power under Paragraph 6(1) does not enjoy the immunity under Articles 122 and 212 from judicial scrutiny, because the proceedings are before the Speaker as a specially designated authority and not before the House. (¶¶ 30, 80, 100)
Held
- The Speaker or Chairman deciding a disqualification petition under Paragraph 6(1) of the Tenth Schedule exercises judicial power and acts as a tribunal; the decision is amenable to judicial review under Articles 136, 226 and 227 confined to jurisdictional errors, and attracts no immunity under Articles 122 and 212 (Kihoto Hollohan, reiterated in Subhash Desai). (¶¶ 30, 31, 32, 33, 49, 80, 81)
- The contention that the High Court cannot exercise power under Article 227 over the Speaker lacks merit, since Paragraph 109 of Kihoto Hollohan itself refers to Article 227 along with Articles 136 and 226, and the difference between the jurisdiction under Article 227 and certiorari under Article 226 is very thin. (¶ 36)
- What Kihoto Hollohan interdicted as a quia timet action was an order that would protract, interfere with or delay the proceedings before the Speaker, i.e. injuncting the Speaker from deciding; it does not in any manner bar judicial review in aid of the Speaker arriving at a prompt decision. The Speaker acting as a tribunal is bound to decide disqualification petitions within a reasonable period, and the issue is no longer res integra (Rajendra Singh Rana; Keisham Meghachandra Singh, which Subhash Desai noticed without disapproval). (¶¶ 79, 82, 83, 84, 85, 86, 87)
- The reference in S.A. Sampath Kumar to a five-Judge Bench did not preclude decision, because the three-Judge Bench in Keisham Meghachandra Singh found that the Constitution Bench decision in Rajendra Singh Rana, which had already answered the question, was not brought to the notice of the referring Bench. (¶¶ 55, 56, 57, 76, 77)
- The parliamentary debates on the Fifty-second Amendment show that adjudication was entrusted to the Speaker precisely to secure a fearless and expeditious decision and avoid the delays of courts; a Speaker who issued no notice for more than seven months, and did so only after the matter reached this Court, cannot be said to have acted expeditiously. Failure to issue any direction would frustrate the very purpose of the Tenth Schedule and permit a situation of 'operation successful, patient died'. It is for Parliament to consider whether the Speaker mechanism is serving the purpose of combating defections. (¶¶ 64, 65, 70, 71, 72, 73, 74, 92, 93, 94, 95)
- The Division Bench had no occasion to interfere with the Single Judge's order, which merely asked the Speaker to fix a schedule of hearing within four weeks without directing a time-bound decision; nothing adverse was contained in it and the Secretary of the Assembly had no occasion to challenge it. (¶¶ 90, 96, 97)
- Since the Constitution Bench decisions from Kihoto Hollohan to Subhash Desai consistently hold that the Speaker is the authority to decide disqualification at the first instance, the Court declined to decide the petitions itself, but found it appropriate to direct the Speaker to decide them within a stipulated period, the Speaker being a tribunal amenable to the jurisdiction of the High Court and this Court. (¶¶ 98, 99, 100)
Result
Appeals and the writ petition allowed; Division Bench judgment dated 22.11.2024 quashed and set aside; the Speaker directed to conclude the disqualification proceedings pending against the ten MLAs as expeditiously as possible and in any case within three months of the judgment; the Speaker not to permit the MLAs sought to be disqualified to protract the proceedings and to draw an adverse inference against any who attempt to do so; pending applications disposed of; no order as to costs.