New Delhi: Observing that “there is no end” if constitutional offices are denigrated due to a few aberrations, the Supreme Court on Tuesday expressed its indisposition to wrest from the Speaker the authority to decide disqualification petitions against the members of a House, even as the Uddhav Thackeray-led faction urged the court to adjudicate the pleas to disqualify Maharashtra chief minister Eknath Shinde and 38 other legislators of the rival faction.
A constitution bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, called it a “big problem” for the court to enter into a “political thicket” and decide disqualification petitions by substituting the Speaker’s mandate with a judicial exercise.
“There are only two options — Either you debunk the authority of the Speaker, or irrespective of what the lesser mortals decide, ultimately in a democracy you value the office of institutions. If we start denigrating constitutional offices, including the office of the Speaker, then there is no end,” observed the bench, which also included justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.
Hearing a clutch of petitions arising out of the vertical split in the Shiv Sena last year and the legal issues surrounding the contours of disqualification proceedings and the powers of the governor and the speaker in their respective spheres, the court pointed out that the institutional mechanism empowering the speaker to decide disqualification petitions against the members of a House was put in place through a legislative process and that the court judgments have only interpreted the pertinent provisions.
“Merely because one or two Speakers have gone astray, will this court be inclined to debunk the whole procedure and the Tenth Schedule (anti-defection law)? It’s a conundrum…it poses a big problem for the court. On one hand, if the Speaker is with you, you will say it’s a constitutional authority and the court cannot direct the Speaker. When you have some difficulty, you will say look at how the Speaker is behaving,” added the bench.
It remarked that as long as the series of Supreme Court judgments stand on the primacy of the speaker in acting as a tribunal to decide disqualification petitions, the constitution bench will abide by it. “We will go by the principle that the Speaker is the tribunal to decide petitions under the Tenth Schedule. That’s the final decision and we will not go back on that decision,” said an emphatic bench.
The court’s disinclination to decide the disqualification petitions moved against Shinde and the MLAs of his camp by the Thackeray faction last year came to fore as senior counsel Kapil Sibal, representing the former CM’s side, argued that the new Speaker cannot be trusted with deciding the disqualification pleas fairly.
Sibal, assisted by advocate Amit Anand Tiwari, rued that not only the election of BJP MLA Rahul Narwekar as new speaker of the assembly with the Shinde camp’s support was illegal, Narwekar cannot be expected to adjudicate the pleas justly after he recognised the whip and the leader of the Shiv Sena party from the Shinde-group. “How can this court have the confidence of such a Speaker?” he asked.
But the bench retorted: “That confidence you also had when you say the Speaker should have been allowed to decide when the other side filed a petition. The constitutional authority of the Speaker to decide is not based on who the Speaker is and what decision that Speaker makes.”
At this point, Sibal again emphasised that Narwekar illegally appointed the whip and leader of the party, but the bench responded: “Then you had the first Speaker, who in defiance of the legislative rules, gave two days’ notice to the other side to reply.”
The bench rued that the questions regarding impartiality of a Speaker is often raised before the apex court but there seems to be lack of equal zeal for a parliamentary process to make the desired changes.
“How many times did the parliamentarians raise this question that let’s amend the Constitution? How many times discussions took place in the Parliament to review the functioning of the office of the Speaker? How many times parties sat together to say that the system is not working fine and this needs to be changed? But every time this is raised before this court which is not the forum to decide such issues,” it added. The bench will continue hearing the case on Wednesday.
The constitution bench is seized of a batch of petitions filed by Shinde and Thackeray factions in relation to disqualification proceedings against the MLAs of both camps, election of Narwekar as new Speaker, recognition of a new party whip for Shiv Sena, and the governor’s directive to Thackeray for proving majority on the floor of the House and subsequently inviting Shinde to form the new government in the state.
While the first two petitions in the Supreme Court were filed by the Shinde faction to stop the deputy speaker (there was no speaker at the time) from disqualifying them as MLAs, the Thackeray camp also approached the apex court later, challenging the actions of the governor in directing the former CM to prove the majority on the floor of the House as well as inviting Shinde to form the government in the state. The Thackeray camp further challenged Narwekar’s decision to recognise Shinde as the leader of Shiv Sena and appointment of a new chief whip of the party.
