It is a development that prolongs the political uncertainty in Tamil Nadu, and leaves as many as 18 Assembly constituencies unrepresented. As a result of the split verdict by a two-member Bench of the Madras High Court on the disqualification of 18 legislators, Chief Minister Edappadi K. Palaniswami’s regime gets a further lease of life. A unanimous judgment would have adversely impacted his government, regardless of the decision. If the Bench had struck down the disqualification, the MLAs owing loyalty to Amma Makkal Munnetra Kazhagam leader T.T.V. Dhinakaran would return to the Assembly – a scenario in which the AIADMK regime would find itself cornered, as it owes its majority to the 18 disqualifications. Had the disqualifications been upheld, the ruling party would have been faced with the uphill task of retaining the seats in by-elections. The case relates to a memorandum given by Mr. Dhinakaran’s loyalists to the Governor in August 2017, expressing lack of confidence in the Chief Minister and requesting the Governor to set in motion a “constitutional process” against him. On a complaint from the party’s Chief Whip, the Speaker ruled the MLAs had incurred disqualification, as their action amounted to voluntarily giving up party membership, one of the grounds for disqualification under the anti-defection law.
While both judges are cognisant of the limits of judicial review on the matter, Chief Justice Indira Banerjee, upholding the September 2017 order of disqualification, has declined to interfere on the ground that it was proper to examine only the decision-making process, not its merits. She concedes that mere criticism of the Chief Minister or withdrawal of support, by itself, would not attract disqualification; at the same time, she rules that if the MLAs’ action results in the fall of their party’s government, it is “tantamount to implied relinquishment” of their membership. She finds no perversity or mala fide in the Speaker’s action. Justice M. Sundar, on the other hand, is categorical that the Speaker’s order is vitiated by all the four grounds on which judicial review in such cases is permitted: perversity, mala fide , violation of natural justice and the constitutional mandate. He terms as mala fide the Speaker’s decision not to apply the disqualification rule to S.T.K. Jakkaiyan only because he returned to the loyalist fold. He agrees with the contention that the Speaker’s order was aimed at creating an “artificial majority”. He is clear that the question of voluntarily giving up membership of the AIADMK would not arise when the party itself was embroiled in a factional tussle before the Election Commission. The third judge, to whom the matter will be referred now, has to choose between the limited view of the decision-making process taken by Justice Banerjee, and the more expansive view taken by Justice Sundar.
