Legal experts say the decision taken by the 18 disqualified MLAs to go on appeal against the Madras High Court’s order upholding their disqualification is the right move.
They stand a better chance in the Supreme Court, which enjoys the power even to overturn the law of the land, unlike a High Court which has its own limitations on Constitutional issues, say lawyers.
They add that what turned the tables in favour of the disqualification order was sound legal advice received by Speaker P. Dhanapal and Chief Minister Edappadi K. Palaniswami from some of the best legal minds in the country. The duo was defended by senior counsel C. Aryama Sundaram and C.S. Vaidyanathan.
Contrary to popular perception of the Speaker having passed a cryptic order, a reading of the 21-page disqualification order passed on September 18, 2017 proves that it was drafted very carefully. Every single submission made on behalf of the MLAs during the course of the inquiry had been dealt with by the Speaker in detail in the order.
Speaker’s reasoning
The Speaker himself had answered in detail as to why he did not act against Deputy Chief Minister O. Panneerselvam and his team of MLAs who voted against the AIADMK government on the floor of the Assembly on February 18 last year, why had he chosen to act against the 18 MLAs alone and why the Supreme Court ruling in the B.S. Yeddyurappa case would be of no help to them.
Interestingly, Mr. Dhanapal had also answered in the order, the accusations about him acting in haste and with malice to get the MLAs disqualified. He pointed out how the MLAs were given a sufficient number of adjournments and time to put forth their case, apart from being supplied with relevant documents before the disqualification order was passed.
“It is good that the MLAs have decided to go to the Supreme Court. We will get an authoritative pronouncement on the issue. In my view, every elected government should be allowed to complete its term unless it is constitutionally invalidated. A minority acting against the wishes of the majority is apparent defection,” said Senior Counsel Isaac Mohanlal.
No limitations
Advocate S. Srinivasaraghavan said that while dealing with Constitutional issues, the High Courts function within a narrow compass. “They cannot travel beyond certain limitations and lay down a new law overlooking legal precedents but that is not the case with the Supreme Court which can use the 1disqualification case from Tamil Nadu to lay down a new law,” he added.
Concurring with his view, advocate M. Subash Babu pointed out that the 18 disqualified MLAs had actually filed writ petitions challenging their disqualification and, as per procedure, they should have been disposed of first by a single judge before being taken on appeal to the Division Bench. However, it happened the other way around in the present case.
The case was initially heard by Justice M. Duraiswamy, who passed an interim order restraining the Election Commission of India from notifying elections to the 18 constituencies. Subsequently, the case was listed before Justice K. Ravichandrabaabu, on account of change of portfolio, who referred it to the Division Bench since it involved Constitutional issues.
The Division Bench, in turn, delivered a split verdict, leading to a third judge hearing the case afresh. “Therefore, the trajectory of the case itself has been very peculiar and interesting. Now, the Supreme Court may or may not choose to stay elections to the 18 constituencies but it is important for it to decide the case at least for academic purposes,” he adds.
(Late on Saturday, T.T.V. Dhinkaran told the media at Kalayarkoil that the disqualified MLAs will come to a decision by November 1 on the issue of moving the Supreme Court)
