BRS MLAs' Defection | 'Should Court Tie Its Hands If Speaker Doesn't Decide Disqualification Petitions For Years?' : Supreme Court

In the matter pertaining to BRS MLAs' defection to the ruling Congress party in Telangana and the Assembly Speaker's delay in deciding consequent disqualification petitions, the Supreme Court today orally observed that the Division Bench of the High Court had no reason to interfere with the Single Bench order which merely directed the Speaker to fix within 4 weeks a schedule for deciding the disqualification petitions.

A bench of Justices BR Gavai and AG Masih heard the matter.

Emphasizing (on more than one occasion) that the Division Bench ought not to have interfered with the Single Judge's order, Justice Gavai said,

"There is no case for Division Bench to have interfered with Single Bench decision. Single Judge was gracious enough to say fix a schedule within 4 weeks...Ld. Single Judge only requested to frame a schedule, he did not direct it should be decided within such period...where was occasion for Division Bench to interfere?...The Division Bench should have dismissed the challenge to Single Bench order in limine on first day. When the Single Bench had only asked the Speaker to fix schedule in 4 weeks, there was no case to interfere...had the Speaker or Legislative Assembly not appealed order of Single Judge, it would have been better."

The judge further opined that the Supreme Court, in view of Article 142 of the Constitution, is not powerless in the face of non-compliance with its directions/request by any constitutional functionary. "...be it any constitutional functionary, if request or directions of this Court are not abided, this Court (under Art.142) is not powerless".

Notably, during the previous hearing, the Court had expressed a prima facie opinion that certain observations in Subhash Desai v. Principal Secretary, Governor of Maharashtra lent support to the petitioners' case and that the observations of the Telangana High Court (Division Bench) with regard to judicial precedents on the issue involved were incorrect.

At the outset of today's hearing, Senior Advocate Mukul Rohatgi (for the Telangana Speaker/Secretary) contended that the Single Bench order was incorrect and the Division Bench was right in interfering with the same. Distinguishing between power of superintendence and scope of judicial review, he argued that what was being sought for (by the petitioners) did not fall within the scope of Article 226 of the Constitution, insofar as judicial review can be done once there is a "decision" but in the present case, things were at a nascent stage and there was no final "decision" of the Speaker which could be reviewed.

"Power of superintendence over the High Courts is not available with the Supreme Court, then certainly it is not available over a Tribunal...what is available is the power of judicial review. Judicial review falls under Article 226. It can't be available at a stage prior to making of a decision. Decision, which is an order or judgment after contest, is a pre-requisite for judicial review", Rohatgi urged. In response, Justice Gavai remarked, "Since there is no judgment in the present case, the High Court could not have interfered? And therefore this Court should also tie its hands away and look at the naked dance of democracy?...[you are saying] the direction sought for can't be issued under Article 226...we are recording verbatim, so that we can deal with it...for posterity".

Subsequently, Rohatgi argued that the 10th Schedule of the Constitution provides for "finality" and Courts ordinarily don't interfere unless there is any illegality. He cited the decision in Kihoto Hollohan v. Zachillhu (5 judges) to say that any interference before Speaker's final decision is impermissible. In support of his submissions, he also referred to the decisions in Rajendra Singh Rana v. Swami Prasad Maurya (5 judges), Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur Legislative Assembly (3 judges) and Subhash Desai (5 judges).

Postulating a situation where the Speaker does not act at all, Justice Gavai posed to Rohatgi, "Any order which comes in the way of Hon'ble Speaker in continuing with proceedings can't be passed. But if Speaker does not at all act...courts in this country, which not only have power, but also duty as guardians of Constitution, would be powerless? If for 4 yrs, Speaker doesn't do anything, should the Court tie its hand?"

In response to the senior counsel's assertion that the petitioners did not wait for "reasonable time", insofar as the first writ petition was filed within few weeks of filing of a disqualification petition, Justice Gavai commented, "For 3 months you don't do anything and expect them to sit idle? Period between 18.03.2024 (when disqualification petition was filed) and 16.01.2025 (when notice was first issued by the Speaker) is reasonable period?...Even if they have filed petition in 2 weeks, what took you 10 months to issue notice?...Where a specific relief was sought, for expeditious disposal of proceedings, what prevented you from issuing notice?"

When Rohatgi sought to explain the Speaker's delayed action by saying that the matter was pending before the High Court, Justice Gavai retorted that if the said argument was to be accepted, the Speaker's issuance of notice, while the matter was pending before the Supreme Court, was contempt of the Supreme Court. "You found it appropriate not to proceed further during pendency before HC, but you proceeded when matter was pending before Supreme Court!".

At one point, Justice Gavai summarized Rohatgi's argument that even if the Speaker does not decide for 2 years, 3 years or 4 years, the Court would be powerless to issue direction under Article 226 to expedite. The senior counsel responded to the same by submitting that the Court can only "request" the Speaker. On this, Justice Gavai said that whichever way the matter is decided, the Court would only be "requesting" the Speaker.

In the course of further arguments, Justice Gavai underlined that the Court respects the principle of separation of powers and wanted to maintain the same as it initially offered that Rohatgi obtains instructions from the Speaker as to what would be "reasonable period" according to him. However, no response was forthcoming. Justice Masih posed the same question agian (as to what would be 'reasonable period' according to the Speaker), however, Rohatgi replied that the proceedings were going on and Subhash Desai had left the determination of the question upto the Speaker. "If you can't tell, leave it to us", remarked Justice Gavai in response. 

After Rohatgi concluded, Senior Advocate Gaurav Aggarwal (appearing for 4 respondent-MLAs in one of the petitions) took to arguments and submitted that "reasonable period" would depend on the nature of allegations made and the order passed by the Division Bench, in exercise of Article 226 jurisdiction, was correct at the present (initial) stage. "Where one has left membership of party, or voluntarily given it up, it may involve a complicated question of decision on facts...So sometimes, it is very difficult to decide whether 3 months is reasonable, 6 months is reasonable or 9 months is reasonable...", he urged.

He further contended that if there is a requirement that the Speaker must decide in a specific period, "our vibrant democracy can address that issue". In this regard, it was underlined that the 10th Schedule was brought in by an amendment in 1985, and attention was drawn to other instances where the Parliament itself amended the Constitution to cater to emerging needs. However, Justice Gavai opined,

"In our vibrant democracy, it is court's direction which have to a great extent attempted to maintain purity in politics...it is because of directions issued by this court that candidates are required to file affidavits disclosing their criminal antecedents, assets and liabilities...if Parliament for some reason has not done so, whether this Court will be powerless to provide? When the intention of the Parliament is to discourage such sort of 'Aaya Ram, Gaya Ram', could an interpretation by this Court, so as to advance the purpose for which the 10th Schedule has been enacted, would be alien to our constitutional scheme?"

Insofar as Aggarwal argued that the issue lay purely in legislative domain, and Court's interference may amount to "reading into" a provision as the Parliament is conscious of the problem but did not provide for it, Justice Gavai questioned if that means courts should permit a constitutional provision, which has been framed with a particular aim and object, to be frustrated.

The matter will be heard again tomorrow, when Senior Advocates Dr Abhishek Manu Singhvi and Aryama Sundaram are scheduled to make submissions.

Case Title: PADI KAUSHIK REDDY Versus THE STATE OF TELANGANA AND ORS., SLP(C) No. 2353-2354/2025 (and connected cases)

Also from the hearing - Supreme Court Rebukes Telangana CM Over Statement In House That There Won't Be Bye-Polls If BRS MLAs Switch Sides