Chief Justice of India Sharad A. Bobde on Friday agreed to consider listing a petition filed by the DMK for the disqualification of 11 AIADMK MLAs for voting against Tamil Nadu Chief Minister Edappadi K. Palanisamy in a confidence motion 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 Lok Sabha and State Assemblies to decide disqualification petitions against legislators, especially those who defect, within a “reasonable period” of maximum three months.
This judgment had also urged Parliament to amend the Constitution to strip Speakers, who may be biased by their respective political ideology, of their power to decide disqualification pleas under the Tenth Schedule and hand it over to an independent tribunal to decide fairly and impartially.
This judgment works quite opposite to what the Supreme Court had orally observed in July last year while hearing the DMK’s case for disqualification of the 11 AIADMK MLAs.
Justice Bobde (as he was then) had expressed strong reservations about appropriating powers conferred exclusively on the Tamil Nadu Assembly Speaker under the anti-defection law to conduct disqualification proceedings against 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 S.A. Bobde had asked Mr. Sibal then
Mr. Sibal is appearing 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 could not, merely on the basis of a writ petition under Article 226, encroach on the Speaker’s powers under the Tenth Schedule.
The High Court had reasoned in its order that it was “difficult to conceive how this court can disqualify the concerned MLAs... Passing of such orders would only not amount to judicial overreach, it would also amount to gross breach of judicial discipline, if not contempt”.
The High Court had further refrained from passing any orders on the prayer made by Mr. Sakkarapani to issue a mandamus to the Speaker to disqualify the 11 AIADMK legislators under the anti-defection law.
The High Court had said the legal question of whether a court could direct a Speaker to disqualify members was pending consideration before the apex court.
Arguing before the Justice Bobde Bench, Mr. Sibal submitted in July 2019 that if the Speaker had abandoned his duty under the Tenth Schedule, the court should now 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 voted against 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.