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Constitution bench to look into Telangana defections case
In a significant and far-reaching development, a two-member bench of Justice R K Agarwal and Justice Rohington Nariman of the Supreme Court here on Tuesday referred the case of disqualification of the defected Congress MLAs to the wider Constitution bench for deliberation on the provisions of the 10th Schedule of the Article 226 of the Constitution.
New Delhi: In a significant and far-reaching development, a two-member bench of Justice R K Agarwal and Justice Rohington Nariman of the Supreme Court here on Tuesday referred the case of disqualification of the defected Congress MLAs to the wider Constitution bench for deliberation on the provisions of the 10th Schedule of the Article 226 of the Constitution.
Concurring with the arguments of the petitioner's counsel that the MLAs, who had defected from the Congress to the TRS, would be allowed to continue for their full five-year term without attracting disqualification in the absence of court's intervention, the bench felt that the five-member Constitution bench was the appropriate one to hear the case as it involved a substantial question of law as to the interpretation of the Constitution of India.
Attorney General Mukul Rohatgi, appearing on behalf of the Telangana Assembly Speaker, wondered whether the move would not lead to a flood of petitions across the country with petitioners' questioning the Speaker's powers and seeking a mandamus to him in the discharge of his duties.
The Apex Court in the past had issued individual notices to the Speaker of Telangana Assembly and the MLAs of the Congress who had defected to the ruling TRS after hearing the petition of Congress MLA Sampath Kumar in this regard.
Sampath Kumar’s counsel Jandhyala Ravi Shankar argued before the bench that though it was now almost two years since the defections, no action had been taken by the Speaker despite complaints from the Congress.
If it were left to the Speaker then the defected MLAs would even complete their full term, he contended.
The Attorney General maintained that the issue of disqualifications was within the jurisdiction and purview of the Speaker and no decision had been taken yet in this case and hence the petitioner had no business to approach the courts seeking their intervention.
The courts could review the decisions of the Speaker but not intervene in his functioning, he said. Even the High Court of Judicature at Hyderabad had not intervened to fix a deadline for the Speaker to act in this regard, he told the bench.
Rohatgi cited Article 212 of the Constitution which stipulates: "Courts not to inquire into proceedings of the Legislature (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers".
He further argued that just as one could not give a timeline for courts to dispose of the pending cases, the Speaker too could not be asked to act within a particular time. If a precedence was set in this regard by fixing a time limit to the Speakers, then the court would be flooded with similar petitions against the powers of the Speaker and that would be an infringement on the Rights of Legislature, he said.
However, the bench deferred with the contention and said the court could not turn a blind eye to the ground realities. The bench observed that times had changed now and Speakers too have changed and the courts could not ignore the petitioner’s argument fully.
The counsel for the petitioner argued that the Speaker had not acted in the case against the defected MLAs despite a complaint being lodged with him in 2014 itself. Further, the Speaker had even refused to receive the individual notice issued by the SC in the past.
It was not fair for the court to silently watch the defected MLAs complete their full term. He said the petitioner was not seeking court intervention in the functioning of the House but only seeking a directive on the quasi judicial powers of the Speaker. It was a fact that the Speakers were no neutral persons nowadays and there were several instances wherein they had defected to other parties (as in Arunachal Pradesh), he pointed out.
The bench felt that though it had no right to dictate the Speaker to take a decision within a time frame, it was improper on part of the Speaker to sit on the complaints for two and half years. It did not believe that the Speaker would decide on the fate of the defected MLAs, the bench felt and commented that though the Speaker was the supreme authority of the Legislature, he was not a judicial authority too.
Under the Constitutional provisions, (Article 226, Schedule (10)) the five-member Constitution bench would decide on it, it observed. The bench also kept in abeyance its previous order asking the Speaker to state how much time was required to take a decision on the disqualification on the plea of Mukul Rohatgi.
