Telangana High Court Asks Assembly Speaker To Decide Disqualification Pleas Against MLAs Who Defected From BRS 'Within Reasonable Time'

The Telangana High Court on Friday (November 22) set aside a September order of the single judge which had directed the Secretary of the legislative Assembly to place the disqualification pleas pending against MLAs–who defected from Bharat Rashtra Samithi (BRS)–before the Assembly Speaker to fix a schedule of hearing within four weeks.

In doing so the high court said that Speaker of the Assembly exercises power under the Tenth schedule (which pertains to disqualification on ground of defection) to the Constitution which is subject to judicial review. It added that while the Speaker is required to decide disqualification petitions within a reasonable time, but what would be this time depends on facts of each case. In the present matter the high court asked the Speaker to decide the disqualification petitions within a reasonable time while keeping in "mind the concept of reasonable time".

Referring to the various Supreme Court decisions on the issue including the constitution bench's judgment in Kihoto Hollohan vs. Zachillhu, a division bench of Chief Justice Alok Aradhe and Justice J Sreenivas Rao in its 78 page order said, "...it is evident that the Speaker is the Authority to decide the disqualification petitions, who exercises the powers under the Tenth Schedule to the Constitution of India. The Speaker is a high constitutional functionary. Our society is governed by rule of law and the Constitution is the supreme. The Speaker exercises power under the Tenth Schedule and the same is subject to judicial review on the grounds set out in Kihoto Hollohan (supra) and as referred to by the Supreme Court in Rajendra Singh Rana (supra) and Subhash Desai (supra). The Speaker of the Assembly is required to decide the disqualification petitions within a reasonable time. What would be the reasonable time depends in the facts and circumstances of each case".

Background

Before the single judge, petitions were filed seeking disqualification of three BRS MLAs Danam Nagender, Kadiyam Srihari and Tellam Venkat Rao.

In one of the appeals, Respondent No. 5 Danam Nagender had contested elections to the legislative state assembly from Bharat Rashtra Samithi ('BRS'). He had filed his nomination on November 6, 2023 as a candidate of BRS from Khairatabad. He was then elected on December 12, 2023 as a Member of the Telangana State Legislative Assembly. Thereafter on March 15 Nagender "voluntarily gave up the membership" of BRS and joined Indian National Congress (INC). Then Respondent 1 Alleti Maheshwar Reddy along with other Members of the Legislative Assembly, met the Speaker and submitted a petition on July 1 seeking Nagender's disqualification under Paragraph 2 (1) of the Tenth Schedule read with Article 191 (2) of the Constitution of India and under Rule 6 of Members of Legislative Assembly (Disqualification on the ground of Defection) Rules, 1986.

However, the aforesaid disqualification petition failed to evoke any response from the Speaker of the House. Thereafter a writ petition was filed on July 9 before the single judge assailing inaction on the part of the Assembly Speaker in not deciding the petition for disqualification and a direction was sought to decide the disqualification petition within three months.

On September 9, the single judge had directed the Secretary of Telangana Legislative Assembly to forthwith place the petition seeking disqualification before the Speaker, Telangana Legislative Assembly for fixing a schedule of hearing within a period of four weeks. Disposing of the plea the single judge had further directed the Secretary to communicate the schedule so fixed to the Registrar (Judicial) of the High Court. It was also directed that in case no communication is received from the Secretary the matter will be reopened suo motu and appropriate orders shall be passed. Against this order the Telangana Legislative Assembly had moved the division bench in appeals.

The appellant argued before the division bench that the writ petitions were filed hurriedly without without waiting for a reasonable time to enable the Speaker to take a decision on the petition seeking disqualification. It was contended that in the writ petition, intemperate language has been used against the Speaker who is a constitutional functionary, and therefore, the writ petition is liable to be dismissed in limine.

It was submitted that the only course open to the Single Judge was to refer the matter either to the Division Bench or the Full Bench of this Court. It was further submitted that the Single Judge ought to have appreciated that the issue involved in writ petitions was referred by a two-Judge Bench of the Supreme Court in S.A.Sampath Kumar vs. Kale Yadaiah (2021) to a Constitution Bench. It was contended that the powers of judicial review under Article 226 of the Constitution of India is available only after a decision is taken by the Speaker and no direction can be issued to the Speaker to decide a petition for disqualification in a time bound manner.

The respondent MLAs argued that the Single Judge grossly erred in issuing a direction to the Secretary of the Speaker to place the petition for disqualification before him, which amounts to infringement of powers of the Speaker. It was also pointed out that the issue whether the Court in exercise of power of judicial review can fix time limits for the Speaker to decide the disqualification petition has been referred to the Constitution Bench and the reference is yet to be answered. It is submitted that in the absence of the action of the Speaker being vitiated by mala fides or arbitrariness or violative of provisions of the Constitution of India, no interference is called for by this Court.

Meanwhile Alleti Maheshwari Reddy who was one of the petitioner's before the single judge (respondent before division bench) argued that the provisions of the Tenth Schedule (which contains the provision pertaining to a decision on questions as to disqualification on ground of defection) of the Constitution of India are mandatory in nature and merely because a decision has been referred for consideration to the Larger Bench, the same does not lose its value as binding precedent. It was also urged that the inaction on the part of the Speaker tantamount to refusal to act in consonance with the constitutional provision and no entity under the Constitution of India can refuse to act in defiance of the constitutional mandate.

Findings

While referring to the provision of the Constitution of India on the issue including the tenth schedule, the bench perused through the Supreme Court's Constitution bench decision in Kihoto Hollohan and noted that the apex court had upheld the validity of the Tenth Schedule. The bench noted that the Supreme Court had held "The Speaker is a Tribunal for the purposes of Tenth Schedule and therefore, the exercise of power by the Speaker under Tenth Schedule is subject to judicial review under Articles 136, 226 and 227 of the Constitution of India".

It further noted that it was held by the Constitution bench that the finality clause contained in paragraph 6(2) of the Tenth Schedule does not exclude the jurisdiction of the Courts, but limits the scope of judicial review as the Constitution 42 envisages the Speaker to be repository of adjudicatory powers under the Tenth Schedule.

Further the exclusive power to decide the issue of disqualification under the Tenth Schedule vests with the Speaker of the House and the power to resolve the issue of disqualification is a judicial power which is exercised by the Speaker.

It had also been held that the power of judicial review is not available at a stage anterior to making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. It had been further held that no interference is permissible at an interlocutory stage of the proceeding except when the disqualification or suspension is imposed during the pendency of the proceeding and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequences. It had also been held that judicial review under Articles 136, 226 and 227 of the Constitution of India, in respect of the Speaker's order under paragraph 6 of the Tenth Schedule, is confined to jurisdictional errors only i.e., infirmities based on violation of constitutional mandates, mala fides, non-compliance with rules of natural justice and perversity.

On the question of ratio decidendi the bench said that it is well settled that the ratio of a decision has to be understood in the background of the facts of the case and difference in facts or additional facts may make a lot of difference in precedential value of a decision.

"In Gonal Bihimappa vs. State of Karnataka (1987) , the Supreme Court has held that in a precedent bound judicial system binding authorities have got to be respected and the procedure for developing the law has to be one of evolution. This Court is bound by the ratio decidendi i.e., the principle of law. Therefore, we are required to ascertain the principle of law which binds this Court," the bench said.

The high court thereafter perused Supreme Court judgments in Rajendra Singh Rana vs. Swami Prasad Maurya, Keisham Meghachandra Singh vs. Speaker, Manipur Legislative Assembly and Subhash Desai vs. Principal Secretary, Government of Maharashtra. It noted that in the Constitution Bench of the Supreme Court in Subhash Desai while considering Rajendra Singh Rana had held that the Speaker has the exclusive authority to decide the petition for disqualification, except in exceptional circumstances.

In the present case, the division bench noted that the disqualification petitions were filed before Speaker on July 1, the writ petitions were filed before high court on July 9 which were decided by the single judge by a common order on September 9. The bench said that it had on October 3 in an "interim order" granted liberty for mentioning the matter in case any precipitative action is taken against the appellant on or before October 24.

Disposing of the appeals the bench said, "Thus, four and half months have lapsed since filing of the disqualification petitions. The action on the petition seeking disqualification has to be taken in consonance with the Rules. For the aforementioned reasons, the common order dated 09.09.2024 passed by the learned Single Judge in W.P.Nos.9472, 11098 and 18553 of 2024 is set aside. The Speaker of the Telangana Legislative Assembly must decide the disqualification petitions filed by the writ petitioners within a reasonable time. Needless to state that the Speaker while dealing with the disqualification petitions shall bear in mind the concept of reasonable time, by taking into account the period of pendency of the disqualification petitions, the object of inclusion of the Tenth Schedule to the Constitution of India as well as the tenure of the Assembly".

Case title: The Telangana Legislative Assembly v/s Alleti Maheshwar Reddy and Others

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