Sr Adv Rohatgi Expresses Doubts On SC Verdict Setting Time Limit For Speaker To Decide Disqualification

Senior Advocate Mukul Rohatgi on Tuesday expressed doubts about the recent 3-judge bench decision of the Supreme Court, which set a time-limit for the Speaker to decide on the disqualifications of legislators under the Tenth Schedule of the Constitution.

This happened before a bench headed by CJI SA Bobde, which was hearing a plea by DMK seeking direction to the Speaker of TN Assembly to decide on the disqualification of  O. Panneerselvam and 10 other AIADMK MLAs for voting against Tamil Nadu Chief Minister E.K. Palaniswamy in a 2017 confidence motion.

Senior Advocate Kapil Sibal, appearing for DMK, sought for directions to the Speaker to decide the matter. Referring to the case of Kihoto Hollohan v. Zachillhu & Ors [1992 SCR (1) 686], wherein the Apex Court had held that the Speaker does not enjoy immunity from judicial scrutiny while deciding cases of disqualification as per the Tenth Schedule, Sibal stated that the Speaker was bound to decide cases of disqualification and indecisions were open to limited judicial review.

To this effect, Sibal also placed before the court a recent judgement of Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur Legislative Assembly & Ors (2020) rendered by a 3-judge Bench headed by Justice R F Nariman which stipulated the reasonable time-bound manner (ideally three months) as per which such disqualifications were to be decided by the Speaker.

Senior Advocate Mukul Rohatgi, appearing for the MLAs whose disqualifications are sought, expressed doubts at this judgment authored by Justice Nariman.

Rohatgi pointed out that in the case of S.A. Sampath Kumar v. Kale Yadaiah & Ors (2016), a bench comprising Justices R.K. Agarwal and R F Nariman had referred to larger bench the issue whether Court can pass a direction to the Speaker to decide on a pending disqualification matter.

However, in the Keisham Meghachandra case, of which Justice Nariman was a part, along with Justices Aniruddha Bose and V. Ramasubramanian, cancelled the reference on the ground that the question of law referred to the 5-judge Bench had already been decided in the case of Rajendra Singh Rana & Ors v. Swami Prasad Maurya & Ors (2007).

"This judgement proceeds on the basis that a reference is made by a 2-judge Bench to a 5-judge Bench. However, this judgement cancels that reference. How can it be done? It is not open to a 3-judge Bench to do that", Rohatgi claimed.

The Speaker cannot be reprimanded on the basis of a judgment which was pronounced recently, Rohatgi added.

However, Chief Justice Bobde said that Court was not sitting in appeal on Justice Nariman's judgement. Rohathi however insisted that the reference made in Sampath Kumar decision is still open for consideration.

The CJI however expressed disinclination to consider that issue, and said :

"We will not encroach into any authority's jurisdiction. We think it is appropriate to ask the Speaker about the delay"

The CJI proceeded to seek an explanation from the Advocate General of Tamil Nadu regarding the inaction of 3 years over the disqualification pleas.

"Why is no action being taken? This delay is unnecessary; you could have also dismissed it. Tell us what will you do and when. We will not direct the culmination of this within two weeks because we do not want to exercise judicial overreach. We cannot do that", CJI Bobde asked the Advocate General.

On the basis of the same, a reply has been sought from the Speaker to explain the delay as well as the steps that will be taken by the Speaker on the disqualification pleas now, within a week. The matter is now listed on February 14, 2020.