Maharashtra speaker berated for indecision on disqualification petitions despite SC Order

The Supreme Court took serious note of the fact that the judicial Orders of the court were not respected by the speaker and said that the speaker, as a tribunal, must take his constitutional function under the Tenth Schedule seriously. The court will now hear the plea on Tuesday.

THE Supreme Court heard two petitions today, both seeking directions for the Maharashtra legislative assembly speaker to act on pending disqualifications.

In June 2022, the current chief minister of Maharashtra Eknath S. Shinde and a substantial number of other legislators from the Shiv Sena rebelled against the then Chief Minister Uddhav B. Thackeray in the Maharashtra Vidhan Sabha, eventually leading to the end of the Maha Vikas Aghadi government, comprising the Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress.

Thackeray treated these anti-party activities as ‘voluntarily giving up membership of the political party’ and issued 16 disqualification notices, including against Shinde.

This year, the NCP leader Ajit Pawar joined the Shinde government along with eight other legislators from the NCP. This led the NCP supremo Sharad Pawar to issue disqualification petitions against Pawar and other legislators.

Disqualification by ‘voluntarily’ giving up membership, as provided under paragraph 2(1)(a) of the Tenth Schedule, is a ground for defection that has been interpreted in Ravi S. Nair versus Union of India (1994) to include any conduct which goes against the mandate of the original political party.

The Bench is headed by Chief Justice of India (CJI) Dr D.Y. Chandrachud and comprised of Justices J.B. Pardiwala and Manoj Misra.

What happened in the court today?

Senior advocate Kapil Sibal, representing member of legislative assembly (MLA) and the former political whip of the Thackeray faction, Sunil Prabhu, requested to decide once and for all the duties of the speaker as a tribunal under the Tenth Schedule.

Sibal was contending that proceedings before the speaker have to be a summary procedure and not in the nature of a trial before a civil court. He relied on the Supreme Court judgment of Jagjit Singh versus State of Haryana & Ors (2006).

Sibal further contended that the speaker is now saying that the parties will have to lead evidence which will take a lot of time.

Senior advocate Abhishek Manu Singhvi added that the speaker has already admitted certain important pieces of evidence such as that Shinde was sworn in as the chief minister after the governor had ordered a floor test and Thackeray had resigned. There is nothing left to be admitted, Singhvi told the court.

Sibal stated that the speaker must decide these disqualifications urgently, because the state legislative assembly elections, scheduled to be held in 2024, will otherwise make them infructuous.

The speaker’s Order, passed on September 25 this year, says: “A cursory look at the facts and present disqualification petitions and the fact of the issue is which faction was the original political party at the relevant point in time has to be decided by looking into the constitutional party, organisational strength, legislature party majority makes it necessary to give opportunity to parties to lead evidence for avoidance of miscarriage of justice. This would be, in fact, in conjunction with the judgment of the Supreme Court Constitution Bench.”

According to a recent Order passed by the speaker and read by Sibal in the court, the cross-examination will begin from November 23 and further dates of the proceedings are yet to be announced.

Sibal said: “The elections are [due to be held] next year. All this [delay] is completely [a] farce!”

Sibal also informed the court that the speaker heard the matter yesterday for four hours only for clubbing of the different disqualification petitions.

It should be noted that the speaker is yet to decide on how to take up the disqualification petitions. If he decides on not clubbing the disqualification petitions, then each petition will be decided separately.

The CJI remarked that the speaker’s actions are a charade. He stated that the speaker must show that he is taking his function as a tribunal seriously.

The CJI told the Solicitor General of India Tushar Mehta: “Somebody has to advise the speaker. He cannot defeat the Orders of the Supreme Court like this. What kind of time schedule is he prescribing?”

He added: “This is a summary procedure… Last time we thought some better sense would prevail and that is why we asked the speaker to lay down a schedule. Now, the idea of the schedule should not be to indefinitely defer the hearings because then their [petitioners] apprehension is correct.”

After all this time since June [last year] what has happened in this matter? Nothing. No action. When the matter comes up before this court, some hearing takes place. It should not look like a charade,” CJI remarked.

This led to an exchange between Mehta and the CJI. 

Mehta remarked that he did not expect the court to be assisted with day-to-day action taken by the speaker.

To this, the CJI said that the speaker must hear the matter from day to day and complete the hearings expeditiously.

Mehta took an exception to this statement and stated that the speaker is a constitutional functionary and he cannot be expected to take it like that.

The CJI reminded Mehta that the speaker is an election tribunal and when he exercises his function as a speaker in the house under the Tenth Schedule, his actions are amenable to the jurisdiction of the Supreme Court.

Mehta told the court that during yesterday’s proceedings before the speaker, the petitioners had filed additional documents.

The CJI replied that the court would Order the petitioners to not file any more documents. At this point, Sibal informed the court that no new documents had been filed. Advocate Devadatt Kamat also took strong objection to Mehta’s statement and said that the claim that the petitioners have filed new documents is completely false.

Senior advocate Mukul Rohatgi intervened and informed the court that the existing rules on deciding the disqualification petitions clearly state that evidence can be led.

The CJI replied that the burden of proof lies on the petitioners and they will have to discharge that burden. However, that does not mean that the proceedings can go on indefinitely.

However, Rohatgi adopted a different line of argument and requested the court to give him 10 minutes to explain why the speaker will no longer be a tribunal when hearing disqualification petitions as the procedure is taking place under Article 212 of the Indian Constitution.

Article 212 states that the court does not inquire into the procedure of the legislature.

The CJI asked: “Why are you so averse to the speaker hearing the disqualification petitions? You have filed applications for disqualification also. If you are confident of your application, you should be keen to go on with your applications.”

The court also replied that the disqualification proceedings are not taking place on the floor of the house and hence, Article 212 will not be applicable.

The court decided that the speaker must lay down the time schedule and if the speaker does not do that, the court will make a peremptory Order and will issue a timeline in which the speaker must decide the disqualification petitions. 

Before concluding, the court reiterated that they are concerned that the dignity of the court is not maintained as the Orders of the court have not been implemented.

The court will take up the matter on Tuesday. Similar directions will apply in another petition filed by Sharad Pawar.

What has happened so far?

In Shinde’s case

In Shinde’s case, which ultimately led to the resignation of Thackeray as the chief minister and Shinde’s swearing in as the chief minister of Maharashtra, the Supreme Court held in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors that it cannot restore the status quo ante in Maharashtra because Thackeray resigned and did not face the floor test.

The court did not decide on the disqualification petitions pending against Shinde and the rebel legislators. However, the court added that the petitions must be decided in a reasonable time.

Before the judgment was pronounced, the Election Commission of India (ECI) allowed the Shinde faction to retain the ‘Bow & Arrow’ symbol reserved under the Symbols (Reservation and Allotment) Order, 1968, thereby officially recognising it as ‘Shiv Sena’.

In this regard, the court stated that the ECI’s Order runs independent of the decision of the speaker on disqualification petitions.

A petition filed by Prabhu sought directions for the expeditious disposal of the disqualification petition against Shinde and the legislators of his camp by the speaker.

The disqualification petitions are currently with speaker Rahul Narwekar. They were filed last June with the deputy speaker Narhari Zirwal (the seat of the speaker was incumbent at that time), against whom the Shinde faction had moved a no-confidence motion.

It was contended by the Shinde camp that a speaker facing a no-confidence motion cannot decide disqualification petitions.

On September 18, the Supreme Court gave a week’s time to Zirwal to formulate the schedule for the disqualification petition hearing against the Shinde camp.

In Ajit Pawar’s case

Ajit Pawar became a deputy chief minister of Maharashtra this year. The other deputy chief minister is Bharatiya Janata Party’s Devendra Fadnavis.

Earlier, the NCP, led by its patriarch Sharad Pawar, had 53 MLAs in the 288-member Maharashtra assembly.

After Sharad Pawar issued disqualification petitions, Ajit Pawar claimed his faction as the real NCP. A petition in which he has staked a claim to the NCP name and symbol is pending before the ECI.

Ajit Pawar claimed that the supremo Sharad Pawar was removed and replaced by him on June 30 this year.

The ECI is also set to hear the plea this Friday.

What is the law on the reasonable time in which the speaker must decide the disqualification petitions?

In Keisham Meghachandra Singh versus The Hon’ble Speaker Manipur Legislative Assembly & Ors (2020), a three-judge Bench of the Supreme Court observed that the speaker must decide on disqualification petitions within a reasonable time.

The court further clarified: “What is reasonable [time] 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 infarcted the Tenth Schedule is to be adhered to.”

Keisham Meghachandra and Subhash Desai has referred to the Supreme Court’s landmark judgment of Kihoto Hollohan versus Zachillhu & Ors (1992). In Kihoto Hollohan, a Supreme Court five-judge Bench, while declaring that the jurisdiction of the courts cannot be ousted within the scheme of the Tenth Schedule, observed that the court cannot interfere at the interlocutory level with the jurisdiction of the speaker.

This issue had led to a challenge to the constitutionality of Nabam Rebia, & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016).

A Constitution Bench of five judges in Nabam Rebia held: “We are … of the view that constitutional purpose and constitutional harmony would be maintained and preserved, if a speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the speaker, is under challenge.”

As for Subhash Desai, the issue has been referred to a seven-judge Bench while giving out certain interim measures. 

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