Maharashtra Shiv Sena split: Supreme Court gives speaker a week to create a schedule to decide on disqualifications

Censuring the Maharashtra legislative assembly speaker for the delay in deciding on the disqualification petition of multiple members of the legislative assembly, the Supreme Court directed the speaker to map out a time schedule within a week to dispose of the disqualification petitions.

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THE Supreme Court today gave the Maharashtra legislative assembly speaker a week's time to formulate a schedule for conducting disqualification proceedings against the current Chief Minister Eknath S. Shinde and several other members of the legislative assembly (MLAs).

In May this year, a Constitution Bench of the court had directed the speaker to decide on the disqualification petitions "within a reasonable period of time".

Today, the court observed that despite the passage of around four months since that direction, "it appears that nothing has happened".

A Bench comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice J.B. Pardiwala and Manoj Misra are in the process of hearing a writ petition filed by the MLA and former chief whip in the legislative assembly of the Uddhav B. Thackeray's Shiv Sena, Sunil Prabhu.

Prabhu's petition seeks directions for the expeditious disposal of the disqualification petitions that have been pending before the speaker for more than a year.

The court has now given the speaker one week to issue procedural directions for "completing the record" and setting a time schedule for the hearing of the disqualification petitions.

The Order issued today adds that the Bench shall be apprised of the "time schedule for the expeditious conclusion" of disqualification petitions on the next date of hearing.

The court has listed the matter for further hearing after two weeks.

Speaker cannot say I will hear it in due course: CJI

Senior advocate Kapil Sibal, appearing for Prabhu, contended that the speaker was attempting to create procedural hurdles regarding the filing of documents and non-clubbing of similar matters.

He asked the Bench to take note of the fact that the present case is one of voluntarily giving up membership of the party and a violation of party whip.

"What is the evidence you require in that?" Sibal asked.

As Sibal concluded his submissions, the CJI authoritatively told the Solicitor General of India (SGI) Tushar Mehta, appearing on behalf of the speaker, "He has to decide the matter. He can't do this."

The CJI then sought to know what actions the speaker had taken towards deciding the said disqualification petitions since the delivery of its judgment on May 11.

"I have a list of dates," Mehta said, and passed on three copies of a file to the Bench.

Upon examining the papers, the CJI replied, "It appears that nothing has happened."

At a different point in the hearing, the CJI told Mehta that "the speaker cannot say 'I will hear it in due course'. You have to keep on giving dates and get it ready for hearing."

But Mehta sought to steer the conversation away to a different issue: "Would a speaker who is being ridiculed like this be submitting his day-to-day functioning before the court?" he asked.

To this, the CJI disclosed that the issue of deciding a deadline for disposing of the disqualification petitions was brought before the Bench that delivered the May 11 judgment, but the Bench decided not to delve into it.

The CJI added, "But, equally, the speaker has to then abide by the dignity of the Supreme Court."

On the point of delay in deciding the disqualification petitions, Mehta sarcastically argued, "If they (the petitioner) cooperate and if my learned friend makes the request that I am not supposed to follow the rules or principles of natural justice, I have no difficulty."

About the petition

In Sunil Prabhu versus the speaker, Maharashtra state legislative assembly, Prabhu contends that the speaker has committed gross constitutional injustice by failing to decide on the disqualification petitions within a reasonable period of time.

The petition comes at a crucial juncture because the speaker has recently issued notices over the pending disqualification petitions to 53 MLAs out of which 39 belong to the Shinde faction of the Shiv Sena.

In the petition, Prabhu has reiterated that the speaker, under Paragraph 6 of the Tenth Schedule of the Constitution, acts as a 'judicial tribunal' and is required to behave in a fair and unbiased manner.

As per Paragraph 6 of the Tenth Schedule, the speaker has exclusive jurisdiction to decide on disqualification petitions.

In Kihoto Hollohan versus Zachillhu & Ors (1992), a five-judge Bench of the Supreme Court had held that the court cannot interfere with the jurisdiction of the speaker at the interlocutory level. However, the decision of the speaker is subject to judicial review, the judgment had declared.

The Supreme Court's three-judge Bench in Keisham Meghachandra Singh versus The Hon'ble Speaker Manipur Legislative Assembly & Ors (2020) reiterated the reasoning given in Kihoto Hollohan. 

In that judgment, the court added that the speaker, as a tribunal under the Tenth Schedule, is expected to act fairly, independently and impartially while adjudicating disqualification petitions.

The court added that the speaker must decide the disqualification petitions within a reasonable time, which is a period of three months from the date on which the petition is filed as the outer limit within which disqualification petitions are filed before the speaker.

Citing these two judgments of the Supreme Court, the present petition states that one of the constitutional requirements of fairness enjoined upon the speaker is the obligation to decide the question of disqualification in an expeditious matter.

However, the speaker's "inaction" in deciding the petition has led to grave constitutional impropriety in the present case, the petition contends.

The petition points out that the Thackeray-led Shiv Sena has made a representation thrice before the speaker to decide on the pending disqualification petitions but the speaker has failed to act upon them.

The petition states: "[The] speaker's inaction is allowing members of legislative assembly who are liable to be disqualified to continue in the assembly and to hold responsible positions in the government of Maharashtra including that of the chief minister."

The petition further notes that the continuation of the grave political crisis over the failure of the speaker to act in a fair and unbiased tribunal has violated the Supreme Court's judgment of Rajendra Singh Rana & Ors versus Swami Prasad Maurya & Ors (2007).

In the Rajendra Singh Rana judgment, it was held that the continuance of disqualified MLAs in the assembly even for a day, as well as their holding office as ministers, would be illegal and thus an affront to constitutional values and democratic principles.

"Any unreasonable delay on the part of the speaker in deciding the petitions for disqualification contributes to and perpetuates the constitutional sin of defection committed by the delinquent members," the petition avers.

The petition concludes that the speaker's inaction is in violation of the Supreme Court's directions in Subhash Desai.

(With inputs from Gursimran Kaur Bakshi)