Tamil Nadu

CJI to examine listing of DMK plea

Chief Justice of India Sharad A. Bobde   | Photo Credit: PTI

Chief Justice of India Sharad A. Bobde on Friday agreed to consider listing a petition filed by the DMK on the disqualification of 11 AIADMK MLAs for voting against Chief Minister Edappadi K. Palaniswami in a confidence motion moved in 2017.

Senior advocate Kapil Sibal, during an oral mentioning, referred to a January 21 judgment by a Supreme Court Bench, led by Justice Rohinton F. Nariman, requiring Speakers of the Lok Sabha and the State Assemblies to decide disqualification petitions against legislators, especially those who defect, within a “reasonable period” of a maximum of three months.

The judgment had also urged Parliament to amend the Constitution to strip Speakers, who may be biased on account of their political ideology, of their power to decide disqualification petitions under the Tenth Schedule of the Constitution. The court wanted the power to be entrusted to an independent tribunal to arrive at a fair and impartial decision.

This judgment is contrary to what the Supreme Court had orally observed in July last year while hearing the DMK’s petition seeking disqualification of 11 AIADMK MLAs. Justice Bobde [as he was then] had expressed reservations about appropriating powers conferred exclusively on the T.N. Assembly Speaker under the anti-defection law to conduct disqualification proceedings against the State’s Deputy Chief Minister O. Panneerselvam and 10 other AIADMK MLAs for voting against the CM in February 2017.

“When the Tenth Schedule (anti-defection law) of the Constitution confers the power of disqualification on the Speaker, why should the court assume this power? Why should the court assume the power of the Speaker for something which happens inside the House,” Justice Bobde had asked Mr. Sibal then.

Mr. Sibal appears for DMK leader R. Sakkarapani, who has appealed an April 2018 order of the Madras High Court. In its 57-page order, the High Court had held that it cannot, merely on the basis of a writ petition under Article 226, encroach on the Speaker’s powers under the Tenth Schedule.

The HC had reasoned in its order that it was “difficult to conceive how this court can disqualify the concerned MLAs...Passing of such orders would not only amount to judicial overreach, it would also amount to gross breach of judicial discipline, if not contempt”. The court had further refrained from passing any orders on the prayer made by Mr. Sakkarapani for the issuance of a mandamus to the Speaker to disqualify the 11 AIADMK legislators under the anti-defection law.

The HC had said that the legal question of whether a court can direct a Speaker to disqualify members was pending before the apex court.

Arguing before the Bench, Mr. Sibal had submitted in July 2019 that if the Speaker had abandoned his duty under the Tenth Schedule, the court should then take over. “If the Speaker, who has the power, does not decide on the disqualification, the court will have to,” Mr. Sibal had argued.

Mr. Sakkarapani's petition said 11 MLAs from the Panneerselvam faction had voted against the CM during the trust vote on February 18, 2017. The plea for their disqualification was made before the Speaker under Paragraph 2 (1)(b) of the Tenth Schedule of the Constitution. However, the Speaker did not issue any notice on the disqualification petition.

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Printable version | Jun 12, 2021 11:58:02 PM | https://www.thehindu.com/news/national/tamil-nadu/cji-to-examine-listing-of-dmk-plea/article30647634.ece

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