Any Interested Person Can Petition Assembly Speaker Seeking Disqualification Of MLA: Sikkim HC [Read Judgment]

‘It may be read down making clear that not only a member of the Legislative Assembly but any other person interested is competent to make a reference (petition) to the Speaker for initiating a process of disqualification of a member, who has incurred it under Tenth Schedule’

The Sikkim High Court has read down Rule 6 of Sikkim Legislative Assembly (Disqualification on ground of Defection) Rules, 1985, holding that not only a member of the Legislative Assembly but any other person interested is competent to make a reference (petition) to the Speaker for initiating a process of disqualification of a member.

A bench of the Chief Justice Satish K Agnihotri and Justice Meenakshi Madan Rai was considering a PIL filed by former parliamentarian Pahalman Subba and two social and political activists who sought reading down of Rules 6 and 7 of the Members of Sikkim Legislative Assembly (Disqualification on ground of Defection) Rules, 1985 in the light of Article 191 (2) and the Tenth Schedule to the Constitution.

The bench took note of the judgment of the Supreme Court that had read down the provisions of sub-rules (1) and (2) of Rule 6 of the Members of Orissa Legislative Assembly (Disqualification on Ground of Defection) Rules, 1987, holding that not only a member of the House but any person interested, would also be entitled to bring to the notice of the Speaker the fact that a member of the House had incurred disqualification.

The bench said: “Rules 6 and 7 of the Rules of 1985 are in the domain of procedure and intended to facilitate the holding of inquiry and not to defeat or destruct the objective of the Tenth Schedule by introducing the technicality. Indisputably the rules are in the nature of subordinate delegated legislation and cannot supplant the very object of the Tenth Schedule, as the Tenth Schedule was added to the Constitution to remove the evil of political defection which became a matter of national concern and undermines the very foundation of the democracy.”

Referring to various provisions, the bench observed: “On examination, we are of the view that Rule 6 (2) does not achieve the object of the Tenth Schedule, as examined by the Supreme Court in various cases and as such it may be read down making clear that not only a member of the Legislative Assembly but any other person interested is competent to make a reference (petition) to the Speaker for initiating a process of disqualification of a member, who has incurred it under Tenth Schedule. The other provisions of Rule 6 are mere procedural and do not obstruct or impede the objective of the Tenth Schedule. Thus, it does not need any reading down.”

The bench also read down Rule 7 (2) to the effect that if a petition fails to comply with the requirement of Rule 6, the petitioner be granted an opportunity to cure the defect before dismissing the petition at the threshold.