SC tells Parliament to ‘rethink’ speaker powers on disqualification pleas

By Ananthakrishnan G

The Supreme Court on Tuesday asked Parliament to "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".

"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," said a bench of Justices R F Nariman, Aniruddha Bose and V Ramasubramanian.

The bench was ruling on a petition on the March 2017 Manipur Assembly elections. The plea, first filed in the Manipur High Court, had sought a direction to the Assembly Speaker to take a decision, within a reasonable time, on a petition filed by MLA K Meghachandra, seeking disqualification of Th Shyamkumar, who had contested on a Congress ticket but later joined the BJP and became a state minister.

On September 8, 2017, the HC said that as the issue of whether a high court can direct a Speaker to decide a disqualification petition within a certain time frame is pending before a five-judge bench of the Supreme Court, it could not pass any order in the matter. The matter was ordered to be listed and await the outcome of the cases pending before the Supreme Court.

The appellant moved the HC again on January 29, 2018. On July 23, 2019, the HC concluded that the Speaker is a quasi-judicial authority who is required to take a decision within a reasonable time - obviously less than five years, which is the term of the House.

The HC held that the remedy provided in the Tenth Schedule is, in essence, an alternative remedy to be exhausted before approaching the court. If this alternative remedy is found to be ineffective, due to deliberate inaction or indecision on the part of the Speaker, the court cannot be denied jurisdiction to issue an appropriate writ to the Speaker, it said.

The HC found that disqualification under the Tenth Schedule was effective in the current case, but stopped short of issuing any direction as the issue was pending before the Supreme Court.

Appearing for the appellant, Senior Advocate Kapil Sibal urged the Supreme Court to issue a writ of quo warranto against Shyamkumar. He contended that though the question of whether a writ petition can be filed against inaction by a Speaker is pending before a five-judge bench of the SC, it was clear, from a reading of the court's 1992 judgement in Kihoto Hollohan v. Zachillhu & Others, that all that was interdicted by that judgment was the grant of interlocutory stays which would prevent a Speaker from making a decision and not the other way around.

Sibal argued that this line of reasoning also found substance in the SC's verdict, in 2007, in the Rajendra Singh Rana v. Swami Prasad Maurya case. Opposing Sibal's contention, Additional Solicitor General Madhavi Divan said the court should await the decision of the five-judge bench.

But, writing for the Bench, Justice Nariman said: "We find that this very issue was addressed by a five judge bench judgment in Rajendra Singh Rana… It is clear from a reading of the judgment in Rajendra Singh Rana… that the very question referred by the two-judge bench in S A Sampath Kumar… 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".

The court said "the Speaker, in acting as a Tribunal under the Tenth Schedule, is bound to decide disqualification petitions within a reasonable period. 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 five 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…, if they have infracted the provisions of the Tenth Schedule".

The SC, however, said it could not accede to Sibal's submission that it should issue writ of quo warranto quashing Shyamkumar's appointment as a minister. It agreed with Divan that a disqualification under the Tenth Schedule must first be decided by the exclusive authority, in this case, the Manipur Assembly Speaker.
"It is also not possible to accede to the argument of Shri Sibal that the disqualification petition be decided by this Court in these appeals given the inaction of the Speaker. It cannot be said that the facts in the present case are similar to the facts in Rajinder Singh Rana… In the present case, the life of the Legislative Assembly comes to an end only in March 2022, unlike in Rajinder Singh Rana… 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," said the court.

It asked the Speaker to decide the disqualification petitions pending before him within a period of four weeks from the date on which the judgment is intimated to him. "In case no decision is forthcoming even after a period of four weeks, it will be open to any party to the proceedings to apply to this Court for further directions/ reliefs in the matter," said the SC.