Courts cannot usurp Speaker’s powers to disqualify Legislators

Asmita Kuvalekar | Government Law College, Mumbai | 26^th April 2020. 

SPEAKER HARYANA VIDHAN SABHA VS. KULDEEP BISHNOI AND ORS (CIVIL APPEAL NO 7125 OF 2012 ARISING OUT OF SLP (C) NO 54 OF 3012) 

FACTS OF THE CASE: 

The Punjab and Haryana High Court, invoking its authority under Article 226 of the Indian Constitution, passed an order dated 20^th December 2011 directing the Speaker of Haryana Vidhan Sabha to decide the matter of disqualification of 5 members of Legislative Assembly within 4 months. On the Speaker’s appeal, a division bench of the Court refused to intervene in the impugned order. Rather, it added that during the period of 4 months, all 5 MLAs would be deemed disqualified and would not be allowed to work in the Haryana Vidhan Sabha in the usual course. Aggrieved by this decision, the Speaker approached the Apex Court through a Special Leave Petition. The Court disposed of the Speaker’s petition along with separate petitions that had been filed by the affected MLAs. 

In this case, the Supreme Court was faced with a poignant question of law: Can High Courts decide matters that are exclusively curated for the Speaker by the Tenth Schedule of the Constitution? In answering this legal quandary, this judgement underlined important considerations of the High Court’s jurisdiction under Order 41 Rule 33 of the 1908 Civil Procedure Code as well as the extent of judicial review over Speaker’s actions. 

ISSUE: 

1. Whether High Courts can exercise jurisdiction and pass interim orders during the pendency of disqualification petitions before a Speaker? 
2. Whether High Courts can themselves disqualify members of the Legislature? 

JUDGEMENT: 

The Court examined the true meaning of the Tenth Schedule to the Indian Constitution in great detail. It was seen that the entirety of the Speaker’s powers under the Schedule come into play only with respect to disqualification proceedings. Under such proceedings, the Speaker may then make a decision regarding merger or split of political parties and not otherwise. Therefore, it is clear that before a High Court can intervene by way of judicial review regarding splits, mergers or disqualification of legislators, it is the Speaker who must pass a final decision in a disqualification petition. Thus, until and unless a final order as per Paragraph 6 of the Tenth Schedule has been made by the Speaker, High Courts have no jurisdiction to intervene and decide the matter of their own accord. Simply put, the process cannot be hastened by approaching a Court during the pendency of a disqualification petition before the Speaker, as the Constitution unequivocally affords such authority to the Speaker and not the Courts. Judicial review can be exercised only after the Speaker’s final decision in the matter. 

That said, the Speaker’s appeal against the direction to wrap up proceedings in 4 months was not sustained by the Apex Court. It promptly dismissed the same. However, with respect to the disqualification of the MLAs so declared by the High Court, the judges pointed out the error explaining that High Courts have no power to do so since disqualification is an exclusive authority resting in the singular domain of the Speaker. As such, impeding the proper and usual functioning of the Legislators by deeming them disqualified and unattached members of the House until the final decision of the Speaker was bad in law. The lengthy submissions made in favour of the Respondents on account of Order 41 Rule 33 of the 1908 Civil Procedure Code were not accepted by the Court. It justified its refusal by highlighting that on the one hand, no final order had yet been passed by the Speaker when the High Court intervened in the matter and on the other hand, the said CPC provisions do not apply to powers exercised under the Tenth Schedule of the Constitution. Therefore, the Respondents’ stance based on such a provision held no force in the present case. 

Accordingly, the members were fully reinstated as members of the Haryana Vidhan Sabha, subject to the final decision of the Speaker with regard to their disqualification proceedings directed to be completed within 3 months of the passing of this judgement.