The first Division Bench of the Madras High Court on Thursday delivered a split verdict in a batch of cases filed by 18 AIADMK MLAs challenging their disqualification under the anti-defection law, with Chief Justice Indira Banerjee upholding the Speaker’s September 18, 2017 order and Justice M. Sundar setting it aside.
In view of the differing judgments, the cases will be argued afresh before a third judge.
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Justice Huluvadi G. Ramesh, the senior-most judge after the Chief Justice, will nominate the third judge.
Meanwhile, acceding to a request from senior counsel P.S. Raman and N. Raja Senthoor Pandian for the disqualified MLAs, the Division Bench extended an interim order restraining the conduct of elections to the 18 constituencies that had fallen vacant after the disqualification and a trust vote on the floor of the Assembly.
In her judgment, Justice Banerjee said: “In my opinion, the view taken by the Speaker [that the 18 MLAs had voluntarily given up membership of the AIADMK by giving representations to the Governor on August 22, 2017, withdrawing support to Chief Minister Edappadi K. Palaniswami] is a possible, if not, plausible view.
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Opportunity denied
However, Justice Sundar said the Speaker ought to have given an opportunity to the 18 petitioners to cross-examine at least the secretaries to the Chief Minister to prove their assertion that they had indeed made attempts to solve their differences within the party.
Justice Banerjee said, “I am unable to hold that the said decision [of the Speaker] is any way unreasonable, irrational or perverse. It is well settled that when two views are possible, the High Court does not in exercise of its power of judicial review, conferred under Article 226 of the Constitution, interfere with the decision just because it prefers the other view.”
Pointing out that the writ petitioners had not stopped short of expressing no confidence on the Chief Minister but had also gone ahead and called upon the Governor to “initiate the constitutional process,” the Chief Justice asked: “The question is what does this mean? What is it that the Governor could do?”
Governor’s options
She went on to agree with senior counsel C. Aryama Sundaram appearing for the Speaker and C.S. Vaidyanathan representing the Chief Minister, that following the MLAs’ representations, the Governor could have either recommended imposition of President’s rule or called for a floor test due to which the AIADMK government would have collapsed.
Further, stating that the 18 MLAs had not produced any document to show that they had requisitioned a meeting of the party for selection of some other individual as Chief Minister or to show that they had suggested any other alternative name, the Chief Justice said intra party differences on leadership should have been sorted within the party.
Though the 18 petitioners had accused the Speaker of bias because he had failed to initiate disqualification proceedings against Deputy Chief Minister O. Panneerselvam and his team of MLAs who voted against the government in the floor test held on February 18, Justice Banerjee rejected the charge.
“May be, as argued on behalf of the writ petitioners, notice should at least have been issued as soon as the disqualification petition was filed (against Mr. Panneerselvam and his team of MLAs) or shortly thereafter. However, inference of bias cannot be drawn from the omission to do so,” she added.
‘Party did not exist’
Jutsice Sundar, however, said a clear, categoric and unambiguous assertion could not be made on the issue of the writ petitioners having voluntarily given up membership of their political party because AIADMK itself did not exist as an entity on August 22, 2017 due to an interim order passed by Election Commission of India (ECI) following a dispute between factions.
Pointing out that ECI had then recognised the factions as AIADMK(Amma) and AIADMK (Puratchi Thalaivi Amma), the judge said: “A question of voluntarily giving up membership of AIADMK political party, in whose ticket a legislator was elected, could not at all have been answered conclusively in this period.”
Though the Speaker had referred to a demand for floor test made by the Leader of the Opposition M.K. Stalin on the day when the 18 petitioners met the Governor and alleged that they were working in cahoots, Justice Sundar said: “The action of Mr. Stalin appears to be very natural and on expected lines... it is only natural that the leader of the opposition will try to seize the moment.”
‘Perverse and mala fide’
He then he set aside the Speaker’s order on the ground that it was hit by perversity, non compliance with principles of natural justice, mala fide (since the 19th MLA S.T.K. Jakkaiyan, who also met the Governor, had been let off by the Speaker just because he back tracked on his decision) and violation of the constitutional mandate.