Telangana High Court
The Telangana Legislative Assembly vs Padi Kaushik Reddy on 22 November, 2024
THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HONOURABLE SRI JUSTICE J. SREENIVAS RAO
+ WRIT APPEAL Nos.1157, 1158 AND 1160 OF 2024
% Dated 22.11.2024
# The Telangana Legislative Assembly,
Rep. by its Secretary,
Telangana Legislature,
Hyderabad.
...Appellant
VERSUS
$ Alleti Maheshwar Reddy
and others.
... Respondents
! Counsel for appellant : Mr. A.Sudarshan Reddy,
Learned Advocate General,
Representing Mr. K.Pradeep Reddy
^ Counsel for respondent No.1 in W.A.No.1157 of 2024:
Mr. J.Prabhakar,
Learned Senior Counsel representing
Mr. R.V.Pavan Maitreya
^ Counsel for respondent No.1 in W.A.Nos.1158 and 1160 of
2024: Mr. G.Mohan Rao,
Learned Senior Counsel representing
Mr. S. Santosh Kumar
^ Counsel for respondent No.2 in all the writ appeals:
Mr. Ravindra Shrivastava,
Learned Senior Counsel representing
Mr.I.V.Siddhivardhana,
Learned Special Government Pleader,
appeared through video conferencing
2
^ Counsel for respondent No.5 in W.A.No.1157 of 2024:
Mr. Ravishankar Jandhyala,
Learned Senior Counsel representing
Mr. Thoom Srinivas
^ Counsel for respondent No.5 in W.A.No.1160 of 2024:
Mr. P.Sri Raghu Ram,
Learned Senior Counsel representing
Mr. P.Sri Ram
^ Counsel for respondent No.6 in W.A.No.1158 of 2024:
Mr. B.Mayur Reddy,
Learned Senior Counsel representing
Mr. L. Preetham Reddy
< GIST:
> HEAD NOTE:
? CITATIONS:
1. (2021) 16 SCC 503
2. (2008) 10 SCC 1
3. 1992 Supp (2) SCC 651
4. 2015 SCC OnLine Hyd 418
5. (2021) 16 SCC 528
6. (2005) 2 SCC 673
7. (2011) 4 SCC 450
8. AIR 1990 SC 85
9. (2004) 10 SCC 201
10. 1979 ILR Kar 1401
11. 2024 SCC OnLine HP 1679
12. (2007) 4 SCC 270
13. 2023 SCC OnLine Bom 979
14. 2018 SCC OnLine Mad 2056
15. (2015) 12 SCC 381
16. (2024) 2 SCC 719
17. (1952) 1 SCC 410
18. AIR 1965 SC 745
19. (1990) 1 SCC 613
20. (1986) 1 SCC 581/531
21. (2007) 3 SCC 720
22. (2024) 6 SCC 267
3
23. 2023 SCC OnLine SC 586
24. (1983) 1 SCC 147
25. (2012) 10 SCC 1
26. AIR 2007 SC (Supp) 1448
27. 2010 AIR SCW 3901
28. (2020) 4 SCC 1
29. 2023 SCC OnLine SC 1140
30. 2024 SCC OnLine SC 2920
31. 2024 SCC OnLine SC 3067
32. 2024 SCC OnLine SC 3127
33. (2020) 2 SCC 595
34. (2016) 8 SCC 1
35. (1987) 1 SCC 213
36. (2003) 2 SCC 111
37. AIR 2004 SC 477
38. (2008) 16 SCC 14
39. (2015) 14 SCC 130
40. AIR 1987 SC 2359
4
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE J.SREENIVAS RAO
WRIT APPEAL Nos.1157, 1158 AND 1160 OF 2024
COMMON JUDGMENT:
(Per the Hon'ble the Chief Justice Alok Aradhe)
Mr. A. Sudarshan Reddy, learned Advocate General for the
State of Telangana appears for Mr. K.Pradeep Reddy, learned
counsel for the appellant.
Mr. J.Prabhakar, learned Senior Counsel appears for
Mr. R.V.Pavan Maitreya, learned counsel for respondent No.1 in
W.A.No.1157 of 2024.
Mr. G.Mohan Rao, learned Senior Counsel appears for
Mr. S. Santosh Kumar, learned counsel for respondent No.1 in
W.A.Nos.1158 and 1160 of 2024.
Mr. Ravishankar Jandhyala, learned Senior Counsel
appears for Mr. Thoom Srinivas, learned counsel for respondent
No.5 in W.A.No.1157 of 2024.
Mr. P.Sri Raghu Ram, learned Senior Counsel appears for
Mr. P.Sri Ram, learned counsel for respondent No.5 in
W.A.No.1160 of 2024.
Mr. B.Mayur Reddy, learned Senior Counsel appears for
Mr. L. Preetham Reddy, learned counsel for respondent No.6 in
W.A.No.1158 of 2024.
Mr. Ravindra Shrivastava, learned Senior Counsel
representing Mr. I.V.Siddhivardhana, learned Special
Government Pleader, appears through video conferencing for
the respondent No.2 in W.A.No.1157 of 2024.
2. By common order dated 09.09.2024 passed in
W.P.Nos.9472, 11098 and 18553 of 2024, the learned Single
Judge dealt with the grievance of the writ petitioners about the
inaction on the part of the Speaker while dealing with the
petitioners seeking disqualification made by them under
paragraph 2(1) of the Tenth Schedule to the Constitution of
India and disposed of the writ petitions. These writ appeals
emanate from the aforesaid common order dated 09.09.2024
and therefore were heard together and are being decided by this
common judgment. For the facility of reference, facts from
W.A.No.1157 of 2024 are being referred to.
(i) FACTS:
3. The respondent No.5 contested the election from
Huzurabad Assembly Constituency for election to the Legislative
Assembly of State of Telangana. The respondent No.5 was set up
as a candidate from Bharat Rashtra Samithi (hereinafter referred
to as 'BRS') and filed his nomination on 06.11.2023 as a
candidate of BRS from 60-Khairatabad Assembly Constituency.
He was elected on 03.12.2023 as a Member of the Telangana
State Legislative Assembly.
4. The respondent No.5, thereafter on 15.03.2024 voluntarily
gave up the membership of BRS and joined Indian National
Congress (hereinafter referred to as 'INC'). The respondent No.1
along with other Members of the Legislative Assembly, met the
Speaker of the Telangana Legislative Assembly and submitted a
petition on 01.07.2024 seeking disqualification of respondent
No.5 under Paragraph 2 (1) of the Tenth Schedule read with
Article 191 (2) of the Constitution of India and under Rule 6 of
Members of Legislative Assembly (Disqualification on the ground
of Defection) Rules, 1986 (hereinafter referred to as 'the Rules').
However, the aforesaid disqualification petition failed to evoke
any response from the Speaker of the House. Thereupon, a writ
petition was filed on 09.07.2024 assailing inaction on the part of
the Speaker, Telangana Legislative Assembly in not deciding the
petition for disqualification and a writ of mandamus was sought
to decide the disqualification petition filed by the respondent
No.1, within a period of three months.
5. Learned Single Judge by an order dated 09.09.2024, while
placing reliance on a decision rendered by a three-judge Bench
of the Supreme Court in Keisham Meghachandra Singh vs.
Speaker, Manipur Legislative Assembly 1 directed the
Secretary of Telangana Legislative Assembly to forthwith place
the petition seeking disqualification before the Speaker,
Telangana Legislative Assembly for fixing a schedule of hearing
within a period of four weeks. The Secretary, Telangana
Legislative Assembly was further directed to communicate the
schedule so fixed to the Registrar (Judicial) of this Court. It was
also directed that in case no communication is received from the
Secretary, Telangana Legislative Assembly, the matter will be re-
opened suo motu and appropriate orders shall be passed.
Accordingly, the writ petitions were disposed of.
1 (2021) 16 SCC 503
6. In the aforesaid factual background, these intra court
appeals arise for our consideration.
(ii) SUBMISSIONS ON BEHALF OF THE LEARNED ADVOCATE
GENERAL FOR THE APPELLANT:
7. Learned Advocate General, at the outset, invited the
attention of this Court to the averments made in paragraph 10
of the writ petition No.9472 of 2024 and has submitted that the
petition seeking disqualification was filed on 18.03.2024 and
thereafter, an additional affidavit was filed on 30.03.2024. It is
pointed out that without waiting for a reasonable time to enable
the Speaker to take a decision on the petition seeking
disqualification the writ petition was filed hurriedly within a
period of ten days, i.e., on 10.04.2024. It is contended that in
the writ petition, intemperate language has been used against
the constitutional functionary, namely the Speaker of the House,
and therefore, the writ petition is liable to be dismissed in limine.
8. While inviting the attention of this Court to a decision of a
three-Judge Bench of the Supreme Court in Official Liquidator
vs. Dayanand 2, it is submitted that the decision rendered by a
2 (2008) 10 SCC 1
Constitution Bench of the Supreme Court in Kihoto Hollohan
vs. Zachillhu 3 as well as the decision of a Division Bench of
Andhra Pradesh High Court in Errabelli Dayakar Rao vs.
Talasani Srinivas Yadav4 and order in S.A.Sampath Kumar vs.
Kale Yadaiah 5 passed by the Supreme Court were binding on
the learned Single Judge and are binding on this Court as well.
It is contended that the only course open to the learned Single
Judge was to refer the matter either to the Division Bench or the
Full Bench of this Court. In this connection, reference has been
made to decisions of the Supreme Court in Central Board of
Dawoodi Bohra Community vs. State of Maharashtra 6 and
Mineral Area Development Authority vs. Steel Authority of
India 7 . It is further submitted that the learned Single Judge
ought to have appreciated that the issue involved in writ
petitions was referred by a two-Judge Bench of the Supreme
Court in S.A.Sampath Kumar (supra) to a Constitution Bench.
It is contended that the powers of judicial review under Article
226 of the Constitution of India is available only after a decision
is taken by the Speaker and no direction can be issued to the
3 1992 Supp (2) SCC 651
4 2015 SCC OnLine Hyd 418
5 (2021) 16 SCC 528
6 (2005) 2 SCC 673
7 (2011) 4 SCC 450
Speaker to decide a petition for disqualification in a time bound
manner. It is submitted that the decision in Keisham
Meghachandra Singh vs. Speaker, Manipur Legislative
Assembly 8 has been rendered in exercise of powers under
Article 142 of the Constitution of India.
9. It is pointed out that the decision in India Cement
Limited vs. State of Tamil Nadu 9 was rendered by a Bench of
seven-Judges. However, the ratio of the aforesaid decision was
interpreted by a five-Judge Bench of the Supreme Court in State
of West Bengal vs. Kesoram Industries Limited10. It is further
pointed out that the correctness of the view taken by a five-
Judge Bench of the Supreme Court in Kesoram Industries
Limited (supra) was doubted by the Supreme Court vide order
dated 30.03.2011 in Civil Appeal No.4056-4064 of 1999. It is
also pointed out that a nine-Judge Bench of the Supreme Court
in Mineral Area Development Authority (supra) has not
approved the view taken by a five-Judge Bench of the Supreme
Court in Kesoram Industries Limited (supra), insofar as it
deals with interpretation of the decision rendered by a seven-
8 (2021) 16 SCC 503
9 AIR 1990 SC 85
10 (2004) 10 SCC 201
Judge Bench of the Supreme Court in India Cement Limited
(supra). It is argued that the ratio of decision rendered by a
Constitution Bench cannot be diluted by a Bench of smaller
strength.
10. It is contended that in case of a conflict between the two
decisions of the Supreme Court, the decision of larger Bench has
to be followed. In this connection, reliance has been placed on a
five-Judge Bench decision of the Karnataka High Court in
Govindanaik G. Kalaghatigi vs. West Patent Press Company
Limited 11. In support of the submission that no direction can be
issued to the Speaker of the Assembly, reliance is placed on a
decision of a Division Bench of Himachal Pradesh High Court in
Hoshyar Singh Chambyal vs. Hon'ble Speaker, Himachal
Pradesh Legislative Assembly 12.
(iii) SUBMISSIONS ON BEHALF OF THE RESPNDENT No.5 IN
WRIT APPEAL No.1157 of 2024:
11. Learned Senior Counsel for respondent No.5 in
W.A.No.1157 of 2024 has invited the attention of this Court to
11 1979 ILR Kar 1401
12 2024 SCC OnLine HP 1679
Article 208 of the Constitution of India as well as the Rules
framed under the Tenth Schedule to the Constitution of India. It
is submitted that the Rules contained in the Tenth Schedule are
directory in nature and therefore, no writ of mandamus can be
issued for failure to comply with a directory provision. It is
contended that the learned Single Judge grossly erred in issuing
a direction to the Secretary of the Speaker to place the petition
for disqualification before him, which amounts to infringement
of powers of the Speaker. In support of his submission, reliance
has been placed on the decisions of the Supreme Court in
Rajendra Singh Rana vs. Swami Prasad Maurya 13 , Girish
Chodanar vs. Speaker, Goa State Legislative Assembly 14 ,
P.Vetrivel vs. P.Dhanabal 15 , Jayant Patil vs. Speaker,
Maharashtra State Legislative Assembly (W.P. (Civil) No.1077
of 2023, dated 17.01.2023), Speaker, Haryana Vidhan Sabha
vs. Kuldeep Bishnoi 16 and a Division Bench of the erstwhile
Andhra Pradesh High Court in Errabelli Dayakar Rao vs.
Talasani Srinivas Yadav 17.
13 (2007) 4 SCC 270
14 2023 SCC OnLine Bom 979
15 2018 SCC OnLine Mad 2056
16 (2015) 12 SCC 381
17 2015 SCC OnLine Hyd 418
(iv) SUBMISSIONS ON BEHALF OF THE RESPONDNET No.2
IN WRIT APPEAL No.1157 OF 2024:
12. Learned Senior Counsel for the Law & Legislative
Department, while inviting the attention of this Court to the
operative portion of the impugned order, has submitted that the
learned Single Judge has directed the Secretary, Telangana
Legislative Assembly to place the petitions seeking
disqualification before the Speaker for fixing a schedule of
hearing, within four weeks. It is further submitted that the
schedule so fixed is directed to be communicated to the
Registrar (Judicial). It is pointed out that a further direction has
been issued that in case nothing is heard within four weeks, the
matters will be re-opened suo motu and appropriate orders shall
be passed. It is contended that the High Court cannot exercise,
the supervisory jurisdiction over the Speaker and the directions
issued by the learned Single Judge amounts to continuous
monitoring of the proceeding before the Speaker. It is contended
that the aforesaid directions are not contemplated even in the
judgment of Keisham Meghachandra Singh vs. Speaker,
Manipur Legislative Assembly 18 on which reliance has been
placed by the learned Single Judge and the same are outside the
scope of judicial review.
13. It is argued that the Speaker has exclusive jurisdiction to
decide the issue of disqualification of a Member and has power
to regulate proceeding by framing the Rules under Tenth
Schedule to the Constitution of India. It is submitted that the
Constitution envisages autonomy to the Speaker and no judicial
review is permissible at the stage prior to the decision which
may be taken by the Speaker. It is pointed out that the view
expressed in paragraph 110 of its decision in Kihoto Hollohan
vs. Zachillhu 19 has been reiterated by another Constitution
Bench of the Supreme Court in Subhash Desai vs. Principal
Secretary, Government of Maharashtra 20 .
14. It is contended that the issue involved in these appeals is
no longer res integra, in view of Constitution Bench decision of
the Supreme Court in Subhash Desai (supra) and the decision
of a three-Judge Bench in Keisham Meghachandra Singh
(supra) cannot be regarded as law under Article 141 of the
18 (2021) 16 SCC 503
19 1992 Supp (2) SCC 651
20 (2024) 2 SCC 719
Constitution of India, as it was rendered in peculiar facts of the
case. It is urged that in Subhash Desai (supra), the Supreme
Court has also explained the judgment in Rajendra Singh Rana
vs. Swami Prasad Maurya 21 and has held that the judgment in
Rajendra Singh Rana (supra) was rendered in the peculiar facts
and circumstances of the case and therefore, is not a binding
precedent.
15. It is pointed that the Constitution Bench in Subhash Desai
(supra) did not issue any direction to the Deputy Speaker to
adjudicate the question of disqualification. It is urged that in
view of the subsequent Constitution Bench decision of the
Supreme Court in Subhash Desai (supra) the limited scope of
judicial review permitted by the Constitution Bench of the
Supreme Court in paragraph 110 of the decision in Kihoto
Hollohan vs. Zachillhu22 alone is the law declared under Article
141 of the Constitution of India and is binding on all courts. In
view of the aforesaid enunciation of law by the Supreme Court,
the High Court is denuded of its powers under Article 226 of the
Constitution of India to issue any direction, procedural or
21 (2007) 4 SCC 270
22 1992 Supp (2) SCC 651
otherwise, much less to control the desk of the Speaker in a
particular manner and within a particular timeframe.
16. It is further submitted that the moot question involved in
these appeals whether the High Court in exercise of powers of
judicial review can issue a direction to the Speaker is pending
consideration before a Larger Bench of five Judges before the
Supreme Court. It is also submitted that the Supreme Court
while exercising powers under Article 136 of the Constitution of
India grants relief in exercise of powers under Article 142 of the
Constitution of India which cannot be treated as a precedent
under Article 141 of the Constitution of India. Reference has
been made to decisions of the Supreme Court in State of
Madras vs. V.G.Row 23, Powers, Privileges and Immunities of
State Legislatures, In re 24 and Charan Lal Sahu vs. Union of
India 25.
17. It is contended that what is binding in terms of Article 141
of the Constitution of India is the ratio of the judgment. It is
argued that ratio decidendi is the reason assigned in support of
the conclusion and it is the ratio decidendi of the judgment and
23 (1952) 1 SCC 410
24 AIR 1965 SC 745
25 (1990) 1 SCC 613
not the final order in the judgment which forms the precedent.
In support of the aforesaid submissions, reliance has been
placed on the decisions of the Supreme Court in Prakash
Amichand Shah vs. State of Gujarat 26, State of West Bengal
vs. Kesoram Industries 27 and Sanjay Singh vs. Uttar Pradesh
Public Service Commission 28. Lastly, it is pointed out that the
practice of issuing directions by the Constitutional Courts to
decide pending cases in a time bound manner has been frowned
upon by the Constitution Bench of the Supreme Court in High
Court Bar Association, Allahabad vs. State of Uttar
Pradesh 29.
(v) SUBMISSIONS ON BEHALF OF THE RESPONDNET No.5 IN
WRIT APPEAL No.1160 OF 2024:
18. Learned Senior Counsel for the respondent No.5 in
W.A.No.1160 of 2024 has submitted that limited powers of
judicial review are available to this Court as enunciated by the
Constitution Bench decision of the Supreme Court in paragraph
26 (1986) 1 SCC 581
27 (2004) 10 SCC 201
28 (2007) 3 SCC 720
29 (2024) 6 SCC 267
No.111 in Kihoto Hollohan vs. Zachillhu 30 . It is further
submitted that the decisions of the Supreme Court in Rajendra
Singh Rana vs. Swami Prasad Maurya 31 and Keisham
Meghachandra Singh vs. Speaker, Manipur Legislative
Assembly 32 are not the authorities for the proposition that a
writ of mandamus can be issued to the Speaker before decision
is taken on the petition for disqualification. It is also submitted
that the aforesaid decisions have been rendered in the peculiar
facts of each case and the directions, in the aforesaid decisions
have been given by the Supreme Court in exercise of powers
under Article 142 of the Constitution of India, which is not the
ratio decidendi and therefore, does not bind this Court.
19. It is contended that ratio decidendi of a case has to be
ascertained by applying the principle of "inversion test". In
support of the aforesaid submission, reliance has been placed on
the decision of the Supreme Court in Career Institute
Educational Society vs. Om Shree Thakurji Educational
Society 33. It is argued that the writ petition appears to be in
the realm of administrative law and the writ petitioner comes to
30 1992 Supp (2) SCC 651
31 (2007) 4 SCC 270
32 (2021) 16 SCC 503
33 2023 SCC OnLine SC 586
the Court on the inaction of the State or instrumentalities. It is
pointed out that the writ petition has been filed merely within
ten days after the submission of additional information.
Therefore, it amounts to abuse of process of law and is liable to
be dismissed. It is also contended that the jurisdiction of this
Court under Article 226 of the Constitution of India is
constitutionally prohibited and therefore has to be strictly
construed.
(vi) SUBMISSIONS ON BEHALF OF THE RESPONDNET No.5
IN WRIT APPEAL No.1158 OF 2024:
20. Learned Senior Counsel for respondent No.5 in
W.A.No.1158 of 2024 has submitted that the learned Single
Judge ought to have appreciated that a Constitution Bench of
the Supreme Court in Subhash Desai vs. Principal Secretary,
Government of Maharashtra 34 has not approved the decision of
the Supreme Court in Keisham Meghachandra Singh vs.
Speaker, Manipur Legislative Assembly 35 . It is urged that a
Constitution Bench of the Supreme Court in Subhash Desai
34 (2024) 2 SCC 719
35 (2021) 16 SCC 503
(supra) has reiterated the view taken by another Constitution
Bench decision in Kihoto Hollohan vs. Zachillhu 36.
(vii) SUBMISSIONS ON BEHALF OF THE RESPONDNET No.6
IN WRIT APPEAL No.1158 OF 2024:
21. Learned Senior Counsel for respondent No.6 in
W.A.No.1158 of 2024 submitted that the learned Single Judge
erred in placing reliance on the decision of the Supreme Court in
Keisham Meghachandra Singh (supra) and ought to have
appreciated that the aforesaid decision pertains to a writ of quo
warranto which was filed to disqualify the concerned member of
the Legislative Assembly. It is contended that the Supreme Court
in the said case while issuing a time bound direction to the
Speaker had exercised power under Article 142 of the
Constitution of India. The decision in Keisham Meghachandra
Singh (supra) is not a binding precedent under Article 141 of the
Constitution of India. It is pointed out that the Division Bench of
the Andhra Pradesh High Court in Errabelli Dayakar Rao vs.
Talasani Srinivas Yadav 37 , while applying the principles laid
down by the Constitution Bench of the Supreme Court in
36 1992 Supp (2) SCC 651
37 2015 SCC OnLine Hyd 418
Kihoto Hollohan (supra) and in Rajendra Singh Rana vs.
Swami Prasad Maurya 38 have only held that the Speaker must
decide such disqualification expeditiously. It is also pointed out
that the issue whether the Court in exercise of power of judicial
review can fix time limits for the Speaker to decide the
disqualification petition has been referred to the Constitution
Bench and the reference is yet to be answered. It is submitted
that in the absence of the action of the Speaker being vitiated by
mala fides or arbitrariness or violative of provisions of the
Constitution of India, no interference is called for by this Court.
It is also pointed out that mere delay of ten days would not
require this Court to give a direction to the Speaker. It is
contended that the Constitutional Courts should not answer
academic or hypothetical questions and no important point of
law should be decided without a proper lis between the parties
properly ranged on opposite sides. In support of the aforesaid
submissions, reliance has been placed on the Constitution
Bench decision of the Supreme Court in Sanjeev Coke
Manufacturing Company vs. M/s.Bharat Coking Coal
Limited 39.
38 (2007) 4 SCC 270
39 (1983) 1 SCC 147
(viii) SUBMISSIONS ON BEHALF OF THE RESPONDNET No.1
IN WRIT APPEAL Nos.1158 AND 1160 OF 2024:
22. Learned Senior Counsel for the respondent No.1 in
W.A.Nos.1158 and 1160 of 2024 has submitted that Tenth
Schedule to the Constitution of India was inserted by
Constitution (Fifty-second Amendment) Act, 1985 with effect
from 01.03.1985, with an object to curb the menace of defection.
It is pointed out that the Speaker did not receive the petition
seeking disqualification and only in pursuance of an interim
order dated 25.04.2024 passed by the learned Single Judge, the
copy of the disqualification petition was served to Government
Pleader for Law and Legislative Department. It is submitted that
from the date of filing of disqualification petition till the counter
was filed on 25.06.2024, the Speaker of the Assembly did not
take any action on the petition for disqualification made by the
respondent No.1. It is pointed out that the learned Single Judge
has merely directed the Secretary of Telangana State Legislative
Assembly to place the disqualification petition before the
Speaker within a period of four weeks and the Speaker of the
Assembly has to fix the schedule for hearing of the
disqualification petition.
23. It is argued that the writ petition filed by the Secretary on
behalf of the Telangana State Legislative Assembly is not
maintainable as the Speaker cannot be termed as a person who
is aggrieved. It is also pointed out that in exercise of powers
under paragraph 8 of the Tenth Schedule to the Constitution of
India, the Speaker has framed the Rules and under the Rules
the Speaker is under an obligation to decide the disqualification
petition expeditiously. It is contended that the order dated
17.07.2019 was passed by a Division Bench of this Court in
W.P.No.2698 of 2019 which has been upheld by the Supreme
Court as S.L.P preferred against the aforesaid order was
dismissed on 07.01.2020. While referring to the aforesaid
decision it is contended that the respondent No.5 is not even
entitled to be given notice and has to be disqualified.
24. It is submitted that the law declared in the judgment
which is binding on the Courts is the ratio decidendi of the
decision. In support of the aforesaid submission, reference has
been made to the decision of the Supreme Court in Natural
Resources Allocation, In re, Special Reference No. 1 of
2012 40 . It is contended that the Speaker while deciding the
petition for disqualification exercises judicial power and is a
Tribunal and is therefore subject to power of superintendence of
this Court under Article 227 of the Constitution of India.
25. Paragraphs 32, 38, 78, 85 to 88, 94 to 97, 99, 100, 109 to
111 of the Constitution Bench of the Supreme Court in Kihoto
Hollohan vs. Zachillhu 41 have been commended to us and it
has been argued that the aforesaid decision does not bar the
judicial review, in case, the Speaker fails to act on the petition
seeking disqualification. It is urged that the failure on the part of
the Speaker to decide the disqualification amounts to violation of
Constitutional mandate and the same is subject to judicial
review. It is urged that the decision in Kihoto Hollohan (supra)
is an authority for the proposition that quia timet action is
prohibited. Reference has also been made to another
Constitution Bench decision of the Supreme Court in Rajendra
Singh Rana vs. Swami Prasad Maurya 42 and it is contended
that the same is an authority for the proposition that in case
40 (2012) 10 SCC 1
41 1992 Supp (2) SCC 651
42 (2007) 4 SCC 270
Speaker fails to act on petition for disqualification, the Courts in
exercise of power of judicial review can issue a direction.
26. It is argued that judicial review of inaction on the part of
the Speaker in the petition for disqualification is not an issue
decided in Kihoto Hollohan (supra) and a direction issued to
decide the petition for disqualification within a reasonable time
is not a direction interfering with the function of the Speaker
and/or direction in the aid of the Speaker arriving at an early
decision in the matter to fulfil the constitutional mandate.
27. It is further submitted that the ratio decidendi of the
decision in Kihoto Hollohan (supra) and Rajendra Singh Rana
(supra) were considered and analysed in Keisham
Meghachandra Singh vs. Speaker, Manipur Legislative
Assembly 43 and it was held that the decision in Kihoto
Hollohan (supra) do not in any manner interdict judicial review
in aid of Speaker arriving at a decision as to disqualification
under the provisions of the Tenth Schedule to the Constitution
of India. It is argued that the Speaker acting as a Tribunal is
bound to decide the disqualification petition within a reasonable
time and what would be the reasonable time depends on facts
43 (2021) 16 scc 503
and circumstances of the case. It is also pointed out that the
decision in Kihoto Hollohan (supra), Rajendra Singh Rana
(supra) and Keisham Meghachandra Singh (supra) were
considered by a Constitution Bench of the Supreme Court in
Subhash Desai vs. Principal Secretary, Government of
Maharashtra 44 and the Speaker of the House was directed to
decide the petition for disqualification within a reasonable time.
It was also pointed out that when the Speaker fails to decide the
disqualification petition within a period of four months, series of
directions were issued to the Speaker by setting out the time
limit to dispose of the disqualification petition. In support of the
aforesaid submissions, reference has been made to the orders
dated 18.09.2023, 17.10.2023 in W.P. (Civil) No.685 of 2023,
orders dated 30.10.2023, 15.12.2023 and 29.01.2024 in W.P.
(Civil) No.1077 of 2023. Lastly, it is contended that the order
passed by the learned Single Judge does not call for any
interference in these appeals.
(ix) SUBMISSIONS ON BEHALF OF THE RESPONDNET No.1
IN WRIT APPEAL No.1157 OF 2024:
44 (2024) 2 SCC 719
28. Learned Senior Counsel for the respondent No.1 in
W.A.No.1157 of 2024, while inviting the attention of this Court
to paragraph Nos.13 and 14 of W.P.No.18553 of 2024 submitted
that the contention urged on behalf of the respondents that the
filing of the writ petition amounts to abuse of process of law is
misconceived. It is submitted that the writ petition filed by the
respondent No.1 cannot be labelled as premature. It is urged
that the provisions of the Tenth Schedule of the Constitution of
India are mandatory in nature and merely because a decision
has been referred for consideration to the Larger Bench, the
same does not lose its value as binding precedent. It is also
urged that the inaction on the part of the Speaker tantamount to
refusal to act in consonance with the constitutional provision
and no entity under the Constitution of India can refuse to act in
defiance of the constitutional mandate. It is contended that the
failure to exercise the constitutional mandate is subject to
judicial review. It is submitted that neither Article 212 of the
Constitution of India nor the Tenth Schedule of the Constitution
of India is a bar in entertaining the writ petition and the
direction issued by the learned Single Judge cannot be
construed as interference with the adjudicatory powers of the
Speaker. It is also pointed out that the learned Single Judge has
merely directed the Secretary of the Telangana Legislative
Assembly to place the papers for consideration before the
Speaker and order of the learned Single Judge does not call for
any interference in this appeal. In support of his submissions,
reliance is placed on Raja Ram Pal vs. Hon'ble Speaker, Lok
Sabha 45 , Amarinder Singh vs. Special Committee, Punjab
Vidhan Sabha 46, Dr. Shah Faesal vs. Union of India 47 , Union
Territory of Ladakh vs. Jammu and Kashmir National
Conference 48, Union of India vs. Pranav Srinivasan 49, Sapna
Negi vs. Chaman Singh 50 , Mukul Kumar Tyagi v. State of
Uttar Pradesh 51 and M/s. Bajaj Alliance General Insurance
Co. Ltd. vs. Rambha Devi (Civil Appeal No.841 of 2018, dated
06.11.2024).
(x) REJOINDER SUBMISSIONS OF THE LEARNED ADVOCATE
GENERAL FOR THE APPELLANT:
29. By way of rejoinder, the learned Advocate General
submitted that the decision of Division Bench of erstwhile High
45 AIR 2007 SC (Supp) 1448
46 2010 AIR SCW 3901
47 (2020) 4 SCC 1
48 2023 SCC OnLine SC 1140
49 2024 SCC OnLine SC 2920
50 2024 SCC OnLine SC 3067
51 2024 SCC OnLine SC 3127
Court of Andhra Pradesh in Errabelli Dayakar Rao vs. Talasani
Srinivas Yadav 52 binds the Court. It is further submitted that
the decisions in Rajendra Singh Rana vs. Swami Prasad
Maurya 53 and Keisham Meghachandra Singh vs. Speaker,
Manipur Legislative Assembly 54 were rendered in the peculiar
facts of the case. It is pointed out that the writ petitioners
represent BRS party which itself was contesting in Errabelli
Dayakar Rao (supra) that no direction can be issued to the
Speaker for fixing a time limit for disposal of disqualification
petitions.
30. We have considered the submissions made on both sides
and have perused the record.
(xi) Relevant Provisions of the Constitution of India:
31. Before proceeding further, it is apposite to take note of the
relevant constitutional provisions of Articles 191, 212 and the
paragraphs 6 and 8 of the Tenth Schedule to the Constitution of
India. Article 191 deals with disqualification for the membership
of the Legislative Council/Assembly. The said Article was
amended by the Constitution (Fifty-second) Amendment Act,
52 2015 SCC OnLine Hyd 418
53 (2007) 4 SCC 270
54 (2021) 16 SCC 503
1985 by which Tenth Schedule to the Constitution of India was
incorporated. Article 212 prohibits the Courts from enquiring
into the proceedings of the legislature. Article 212 and relevant
extract of the Tenth Schedule to the Constitution of India read
as under:
Article 212 of the Constitution of India:
"212. 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."
Paragraphs 6 and 8 of the Tenth Schedule:
"6. Decision on questions as to disqualification on ground
of defection.--(1) If any question arises as to whether a
member of a House has become subject to disqualification
under this Schedule, the question shall be referred for the
decision of the Chairman or, as the case may be, the Speaker
of such House and his decision shall be final:
Provided that where the question which has arisen is as
to whether the Chairman or the Speaker of a House has
become subject to such disqualification, the question shall be
referred for the decision of such member of the House as the
House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this
paragraph in relation to any question as to disqualification of a
member of a House under this Schedule shall be deemed to be
proceedings in Parliament within the meaning of Article 122 or,
as the case may be, proceedings in the Legislature of a State
within the meaning of Article 212."
"8. Rules.--(1) Subject to the provisions of sub-paragraph (2)
of this paragraph, the Chairman or the Speaker of a House
may make rules for giving effect to the provisions of this
Schedule, and in particular, and without prejudice to the
generality of the foregoing, such rules may provide for--
(a) the maintenance of registers or other records as
to the political parties, if any, to which different
members of the House belong;
(b) the report which the leader of a legislature party
in relation to a member of a House shall furnish
with regard to any condonation of the nature
referred to in clause (b) of sub-paragraph (1) of
paragraph 2 in respect of such member, the time
within which and the authority to whom such
report shall be furnished;
(c) the reports which a political party shall furnish
with regard to admission to such political party of
any members of the House and the officer of the
House to whom such reports shall be furnished;
and
(d) the procedure for deciding any question referred
to in sub-paragraph (1) of paragraph 6 including
the procedure for any inquiry which may be made
for the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a
House under sub-paragraph (1) of this paragraph shall be laid
as soon as may be after they are made before the House for a
total period of thirty days which may be comprised in one
session or in two or more successive sessions and shall take
effect upon the expiry of the said period of thirty days unless
they are sooner approved with or without modifications or
disapproved by the House and where they are so approved,
they shall take effect on such approval in the form in which
they were laid or in such modified form, as the case may be,
and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may,
without prejudice to the provisions of Article 105 or, as the
case may be, Article 194, and to any other power which he may
have under this Constitution direct that any willful
contravention by any person of the rules made under this
paragraph may be dealt with in the same manner as a breach
of privilege of the House."
(xii) THE RULES:
32. In exercise of the powers conferred by paragraph 8 of the
Tenth Schedule to the Constitution of India, the Speaker of the
Telangana Legislative Assembly has made the rules, namely the
Members of Telangana Legislative Assembly (Disqualification on
Ground of Defection) Rules, 1986. The relevant rules, namely
Rules 6, 7, 8 and 9 of the aforesaid rules, are extracted below for
the facility of reference:
"6. References to be by petitions: (1) No reference of any
question as to whether a member has become subject to
disqualification under the Tenth Schedule shall be made
except by a petition in relation to such member made in
accordance with the provisions of this Rule.
(2) A Petition in relation to a member may be made
in writing to the Speaker by any other member;
Provided that a Petition in relation to the Speaker shall
be addressed to the Secretary.
(3) The Secretary shall,--
(a) as soon as may be after the receipt of a petition
under the proviso to sub-rule (2) make a report in respect
thereof to the House; and
(b) as soon as may be after the House has elected a
Member in pursuance of the proviso to sub-paragraph (1) of
paragraph 6 of the Tenth Schedule place the petition before
such member.
(4) Before making any Petition in relation to any
member, the petitioner shall satisfy himself that there are
reasonable grounds for believing that a question has arisen as
to whether such member has become subject to
disqualification under the Tenth Schedule.
(5) Every Petition,--
(a) shall contain a concise statement of the material
facts on which the Petitioner relies; and
(b) shall be accompanied by copies of the documentary
evidence, if any, on which the petitioner relies and where the
petitioner relies on any information furnished to him by any
person, a statement containing the names and addresses of
such persons and the gist of such information as furnished by
each such person.
(6) Every petition shall be signed by the petitioner and
verified in the manner laid down in the Code of Civil Procedure,
1908 (5 of 1908) for the verification of Pleadings.
(7) Every annexure to the Petition shall also be signed by
the Petitioner and verified in the same manner as the petition.
7. Procedure: (1) On receipt of petition under rule 6, the
Speaker shall consider whether the petition complies with the
requirements of that rule.
(2) If the Petition does not comply with the requirements
of rule 6, the Speaker shall dismiss the Petition and intimate
the petitioner accordingly.
(3) If the Petition complies with the requirements of rule
6 the Speaker shall cause copies of the Petition and of the
annexures thereto to be forwarded:
(a) to the member in relation to whom the petition has
been made; and
(b) where such member belongs to any Legislature party
and such petition has not been made by the Leader thereof,
also to such Leader and such member or Leader shall within
seven days of the receipt of such copies, or within such further
period as the Speaker may for sufficient cause allow, forward
his comments in writing thereon to the Speaker.
(4) After considering the comments, if any, in relation to
the Petition, received under sub-rule (3) within the period
allowed (whether originally or on extension under that sub-
rule), the Speaker may either proceed to determine the
question or, if he is satisfied, having regard to the nature and
circumstances of the case that it is necessary or expedient so
to do, refer the petition to the Committee for making a
preliminary inquiry and submitting a report to him.
(5) The Speaker shall, as soon as may be after referring
a petition to the Committee under sub-rule (4), intimate the
petitioner accordingly and make an announcement with
respect to such reference in the House or, if the House is not
then in session, cause the information as to the reference, to
be published in the Bulletin.
(6) Where the Speaker makes a reference under sub-rule
(4) to the Committee, he shall proceed to determine the
question as soon as may be after receipt of the report from the
Committee.
(7) The procedure which shall be followed by the
Speaker for determining any question and the procedure which
shall be followed by the Committee for the purpose of making a
preliminary inquiry under sub-rule (4) shall be, so far as may
be, the same as the procedure for inquiry and determination by
the Committee of any question as to breach of privilege of the
House by a member and neither the Speaker nor the
Committee shall come to any finding that a member has
become subject to disqualification under the Tenth Schedule
without affording a reasonable opportunity to such member to
represent his case and to be heard in person.
(8) The provisions of sub-rules (1) to (7) shall apply with
respect to a petition in relation to the Speaker as they apply
with respect to a Petition in relation to any other member and
for this purpose, reference to the Speaker in these sub-rules
shall be construed as including references to the member
elected by the House under the proviso to sub-paragraph (1) of
paragraph 6 of the Tenth Schedule.
8. Decision on Petitions: (1) At the conclusion of the
consideration of the petition, the Speaker or as the case may
be, the member elected under the proviso to sub-paragraph (1)
of paragraph 6 of the Tenth Schedule shall by order in writing:
(a) dismiss the petition, or
(b) declare that the member in relation to whom the
petition has been made has become subject to disqualification
under the Tenth Schedule, and cause copies of the order to be
delivered or forwarded to the Petitioner, the member in relation
to whom the petition has been made and to the Leader of the
Legislature party, if any, concerned.
(2) Every decision declaring a member to have become
subject to disqualification under the Tenth Schedule shall be
reported to the House forthwith if the House is in session, and
if the House is not in session, immediately after the House
reassembles.
(3) Every decision referred to in sub-rule (1) shall be
published in the Bulletin and notified in the official Gazette
and copies of such decision forwarded by the Secretary to the
Election Commission of India and the Government.
9. Directions as to detailed working of these Rules: The
Speaker may, from time to time, issue such directions as he
may consider necessary in regard to the detailed working of
these Rules."
The Rules prescribe the manner of making a petition
seeking disqualification, the procedure to be adopted on receipt
of such petition and decision thereon.
(xiii) NATURE AND SCOPE OF POWER OF SPEAKER:
33. In Kihoto Hollohan vs. Zachillhu 55 and Shrimanth
Balasaheb Patil vs. Karnataka Legislative Assembly 56 , the
Supreme Court has held that the Speaker while adjudicating the
55 1992 Supp (2) SCC 651
56 (2020) 2 SCC 595
petition for disqualification under the Tenth Schedule to the
Constitution has to act fairly, independently and impartially. It
has further been held that in exercise of power under the Tenth
Schedule to the Constitution, the Speaker acts as a Tribunal
and therefore, his order is subject to judicial review under
Articles 136, 226 and 227 of the Constitution of India. It has
also been held that the issue with regard to the disqualification
incurred by the Member of House has to be adjudicated by the
Speaker alone except in exceptional circumstances and the
finality clause contained in paragraph 6 of the Tenth Schedule
does not completely exclude the jurisdiction of the Court.
(xiv) ANALYSIS:
34. At this stage, it is necessary to advert to decisions of the
Supreme Court in Kihoto Hollohan vs. Zachillhu 57, Rajendra
Singh Rana vs. Swami Prasad Maurya 58, S.A.Sampath Kumar
vs. Kale Yadaiah 59 , Keisham Meghachandra Singh vs.
Speaker, Manipur Legislative Assembly 60 and Subhash Desai
vs. Principal Secretary, Government of Maharashtra 61 and a
57 1992 Supp (2) SCC 651
58 (2007) 4 SCC 270
59 (2021( 16 SCC 528
60 (2021) 16 SCC 503
61 (2024) 2 SCC 719
Division Bench decision of erstwhile High Court of Andhra
Pradesh in Errabelli Dayakar Rao vs. Talasani Srinivas
Yadav 62.
(a) KIHOTO HOLLOHAN:
35. The validity of the Constitution (Fifty Second) Amendment
Act was challenged before the Supreme Court in Kihoto
Hollohan (supra), inter alia on the ground that the aforesaid
amendment insofar as it seeks to introduce Tenth Schedule to
the Constitution of India is violative of fundamental principles of
parliamentary democracy and the basic feature of the Indian
Constitution. The validity of the aforesaid Constitution
Amendment Act was also assailed on the ground that provisions
of the Tenth Schedule are destructive of freedom of speech, right
to dissent and freedom of conscience, as they seek to penalise
and disqualify the elected representatives for the exercise of the
said fundamental rights and freedoms. The issue whether the
deeming provision under paragraph 6(2) of the Tenth Schedule
imparts a finality to the decision of the Speaker and excludes the
powers of judicial review was also considered.
62 2015 SCC OnLine Hyd 418
36. The Constitution Bench of the Supreme Court in Kihoto
Hollohan (supra) in paragraphs 109, 110 and 111, which are
relevant for the purposes of controversy involved in these
appeals, held as under:
"109. In the light of the decisions referred to above and the
nature of function that is exercised by the Speaker/Chairman
under Paragraph 6, the scope of judicial review under Articles
136, and 226 and 227 of the Constitution in respect of an
order passed by the Speaker/Chairman under Paragraph 6
would be confined to jurisdictional errors only viz., infirmities
based on violation of constitutional mandate, mala fides, non-
compliance with rules of natural justice and perversity.
110. In view of the limited scope of judicial review that is
available on account of the finality clause in Paragraph 6
and also having regard to the constitutional intendment and
the status of the repository of the adjudicatory power i.e.
Speaker/ Chairman, judicial review cannot be available at a
stage prior to the making of a decision by the Speaker/
Chairman and a quia timet action would not be permissible.
Nor would interference be permissible at an interlocutory
stage of the proceedings. Exception will, however, have to be
made in respect of cases where disqualification or
suspension is imposed during the pendency of the
proceedings and such disqualification or suspension is likely
to have grave, immediate and irreversible repercussions and
consequence.
111. In the result, we hold on contentions (E) and (F):
That the Tenth Schedule does not, in providing for an
additional grant (sic ground) for disqualification and for
adjudication of disputed disqualifications, seek to create a
non-justiciable constitutional area. The power to resolve
such disputes vested in the Speaker or Chairman is a
judicial power.
That Paragraph 6(1) of the Tenth Schedule, to the extent
it seeks to impart finality to the decision of the
speakers/Chairmen is valid. But the concept of statutory
finality embodied in Paragraph 6(1) does not detract from or
abrogate judicial review under Articles 136, 226 and 227 of
the Constitution insofar as infirmities based on violations of
constitutional mandates, mala fides, non-compliance with
Rules of Natural Justice and perversity, are concerned.
That the deeming provision in Paragraph 6(2) of the
Tenth Schedule attracts an immunity analogous to that in
Articles 122(1) and 212(1) of the Constitution as understood
and explained in Keshav Singh case [(1965) 1 SCR 413 : AIR
1965 SC 745] to protect the validity of proceedings from
mere irregularities of procedure. The deeming provision,
having regard to the words 'be deemed to be proceedings in
Parliament' or 'proceedings in the legislature of a State'
confines the scope of the fiction accordingly.
The Speakers/Chairmen while exercising powers and
discharging functions under the Tenth Schedule act as
Tribunal adjudicating rights and obligations under the Tenth
Schedule and their decisions in that capacity are amenable
to judicial review.
However, having regard to the Constitutional Schedule in
the Tenth Schedule, judicial review should not cover any
stage prior to the making of a decision by the
Speakers/Chairmen. Having regard to the constitutional
intendment and the status of the repository of the
adjudicatory power, no quia timet actions are permissible,
the only exception for any interlocutory interference being
cases of interlocutory disqualifications or suspensions which
may have grave, immediate and irreversible repercussions
and consequence."
37. The Constitution Bench of the Supreme Court in Kihoto
Hollohan (supra), while upholding the validity of the Tenth
Schedule appended to the Constitution inter alia held as follows:
(i) The object of the amendment is to curb the evil of
political defections motivated by lure of office or other similar
consideration which endanger the foundations of our
democracy.
(ii) The Speaker is a Tribunal for the purposes of Tenth
Schedule and therefore, the exercise of power by the Speaker
under Tenth Schedule is subject to judicial review under Articles
136, 226 and 227 of the Constitution of India.
(iii) The finality clause contained in paragraph 6(2) of the
Tenth Schedule does not exclude the jurisdiction of the Courts,
but limits the scope of judicial review as the Constitution
envisages the Speaker to be repository of adjudicatory powers
under the Tenth Schedule.
(iv) The exclusive power to decide the issue of
disqualification under the Tenth Schedule vests with the
Speaker of the House. The power to resolve the issue of
disqualification is a judicial power which is exercised by the
Speaker.
(v) The power of judicial review is not available at a stage
anterior to making of a decision by the Speaker/Chairman and a
quia timet action would not be permissible.
(vi) No interference is permissible at an interlocutory
stage of the proceeding except when the disqualification or
suspension is imposed during the pendency of the proceeding
and such disqualification or suspension is likely to have grave,
immediate and irreversible repercussions and consequences.
(vii) The judicial review under Articles 136, 226 and 227
of the Constitution of India, in respect of an order passed by the
Speaker under paragraph 6 of the Tenth Schedule, is confined to
jurisdictional errors only i.e., infirmities based on violation of
constitutional mandates, mala fides, non-compliance with rules
of natural justice and perversity.
(b) RAJENDRA SINGH RANA:
38. Another Constitution Bench of the Supreme Court in
Rajendra Singh Rana vs. Swami Prasad Maurya 63 considered
the decision rendered by its previous Constitution Bench in
Kihoto Hollohan vs. Zachillhu 64 . The factual backdrop in
Rajendra Singh Rana (supra) needs mention. The elections held
to the fourteenth Legislative Assembly of State of Uttar Pradesh
resulted in formation of a coalition government headed by
Bahujan Samaj Party (BSP). On 25.08.2023, the Cabinet of the
government headed by Ms. Mayawati recommended dissolution
of the State Assembly and on 26.08.2003, the Cabinet resigned.
In the meanwhile, Samajwadi Party (SP) staked a claim to form
the government. On 27.08.2003, thirteen MLAs elected on BSP
ticket met the Governor and asked the Governor to invite SP to
form the government. The Governor refused the recommendation
of the BSP Cabinet to dissolve the Assembly. Thereafter,
Governor on 29.08.2003 administered the oath to SP led
63 (2007) 4 SCC 270
64 1992 Supp (2) SCC 651
Cabinet, with a direction to prove the majority within a period of
two weeks.
39. Thereupon, one Swami Prasad Maurya filed a petition
before the Speaker of the Assembly on 04.09.2003 to disqualify
thirteen MLAs belonging to BSP party who had defected to SP.
On 06.09.2004, thirty seven MLAs requested the office of the
Speaker to recognise a split in BSP party, as they constituted
one-third of the total elected members from BSP. The Speaker by
an order dated 06.09.2003 decided the issue of merger and
postponed the decision on the plea of disqualification presented
by aforesaid Sri Swami Prasad Maurya and held that newly
formed party, i.e., Lok Tantrik Bahujan Dal merged into SP.
40. Subsequently, a writ petition was filed before Allahabad
High Court challenging the proceeding before the Speaker. The
Speaker instead of deciding the plea of disqualification
adjourned it sine die on the ground that the issue is pending
before the High Court. The Speaker on 08.09.2005 rejected the
plea of disqualification of thirteen MLAs. The High Court by a
majority of 2:1 set aside the order of the Speaker and directed
him to re-consider the plea of disqualification afresh. The
decision of the High Court was assailed in Special Leave Petition
before the Supreme Court. A Constitution Bench of the Supreme
Court in paragraphs 25, 29 and 40 and held as under:
"25. In the context of the introduction of sub-article (2)
of Article 102 and Article 191 of the Constitution, a
proceeding under the Tenth Schedule to the Constitution is
one to decide whether a member has become disqualified to
hold his position as a Member of Parliament or of the
Assembly on the ground of defection. The Tenth Schedule
cannot be read or construed independent of Articles 102 and
191 of the Constitution and the object of those articles. A
defection is added as a disqualification and the Tenth
Schedule contains the provisions as to disqualification on
the ground of defection. A proceeding under the Tenth
Schedule gets started before the Speaker only on a
complaint being made that certain persons belonging to a
political party had incurred disqualification on the ground of
defection. To meet the claim so raised, the Members of
Parliament or Assembly against whom the proceedings are
initiated have the right to show that there has been a split in
the original political party and they form one-third of the
members of the legislature of that party, or that the party
has merged with another political party and hence para 2 is
not attracted. On the scheme of Articles 102 and 191 and
the Tenth Schedule, the determination of the question of
split or merger cannot be divorced from the motion before
the Speaker seeking a disqualification of a member or
members concerned. It is therefore not possible to accede to
the argument that under the Tenth Schedule to the
Constitution, the Speaker has an independent power to
decide that there has been a split or merger of a political
party as contemplated by paras 3 and 4 of the Tenth
Schedule to the Constitution. The power to recognise a
separate group in Parliament or Assembly may rest with the
Speaker on the basis of the Rules of Business of the House.
But that is different from saying that the power is available
to him under the Tenth Schedule to the Constitution
independent of a claim being determined by him that a
member or a number of members had incurred
disqualification by defection. To that extent, the decision of
the Speaker in the case on hand cannot be considered to be
an order in terms of the Tenth Schedule to the Constitution.
The Speaker has failed to decide the question, he was called
upon to decide, by postponing a decision thereon. There is
therefore some merit in the contention of the learned
counsel for BSP that the order of the Speaker may not enjoy
the full immunity in terms of para 6(1) of the Tenth Schedule
to the Constitution and that even if it did, the power of
judicial review recognised by the Court in Kihoto
Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC 412 :
(1992) 1 SCR 686] is sufficient to warrant interference with
the order in question.
29. In the case on hand, the Speaker had a petition
moved before him for disqualification of 13 members of BSP.
When that application was pending before him, certain
members of BSP had made a claim before him that there has
been a split in BSP. The Speaker, in the scheme of the Tenth
Schedule and the rules framed in that behalf, had to decide
the application for disqualification made and while deciding
the same, had to decide whether in view of para 3 of the
Tenth Schedule, the claim of disqualification had to be
rejected. We have no doubt that the Speaker had totally
misdirected himself in purporting to answer the claim of the
37 MLAs that there has been a split in the party even while
leaving open the question of disqualification raised before
him by way of an application that was already pending
before him. This failure on the part of the Speaker to decide
the application seeking a disqualification cannot be said to
be merely in the realm of procedure. It goes against the very
constitutional scheme of adjudication contemplated by the
Tenth Schedule read in the context of Articles 102 and 191
of the Constitution. It also goes against the rules framed in
that behalf and the procedure that he was expected to
follow. It is therefore not possible to accept the argument on
behalf of the 37 MLAs that the failure of the Speaker to
decide the petition for disqualification at least
simultaneously with the petition for recognition of a split
filed by them, is a mere procedural irregularity. We have no
hesitation in finding that the same is a jurisdictional
illegality, an illegality that goes to the root of the so-called
decision by the Speaker on the question of split put forward
before him. Even within the parameters of judicial review
laid down in Kihoto Hollohan [1992 Supp (2) SCC 651 : AIR
1993 SC 412 : (1992) 1 SCR 686] and in Jagjit Singh v. State
of Haryana [(2006) 11 SCC 1 : (2006) 13 Scale 335] it has to
be found that the decision of the Speaker impugned is liable
to be set aside in exercise of the power of judicial review.
40. Coming to the case on hand, it is clear that the
Speaker, in the original order, left the question of
disqualification undecided. Thereby he has failed to exercise
the jurisdiction conferred on him by para 6 of the Tenth
Schedule. Such a failure to exercise jurisdiction cannot be
held to be covered by the shield of para 6 of the Schedule.
He has also proceeded to accept the case of a split based
merely on a claim in that behalf. He has entered no finding
whether a split in the original political party was prima facie
proved or not. This action of his, is apparently based on his
understanding of the ratio of the decision in Ravi S. Naik
case [1994 Supp (2) SCC 641 : (1994) 1 SCR 754] . He has
misunderstood the ratio therein. Now that we have approved
the reasoning and the approach in Jagjit Singh case [(2006)
11 SCC 1 : (2006) 13 Scale 335] and the ratio therein is
clear, it has to be held that the Speaker has committed an
error that goes to the root of the matter or an error that is so
fundamental, that even under a limited judicial review the
order of the Speaker has to be interfered with. We have,
therefore, no hesitation in agreeing with the majority of the
High Court in quashing the decisions of the Speaker."
41. Thus it is evident that the Constitution Bench of the
Supreme Court in Rajendra Singh Rana vs. Swami Prasad
Maurya 65 was dealing with the validity of the order dated
06.09.2003 by which decision on the issue of merger was taken
and the decision on the disqualification petition was postponed.
The Constitution Bench placed reliance on the decision in
Kihoto Hollohan vs. Zachillhu 66 and inter alia held as follows:
(i) The Speaker has failed to decide the question which
he was called to decide by postponing the decision thereon. The
Speaker may not enjoy full immunity in terms of paragraph 6(1)
of the Tenth Schedule to the Constitution and power of judicial
review recognised by Kihoto Hollohan (supra) is sufficient to
warrant interference with the order in question. (paragraph 25)
65 (2007) 4 SCC 270
66 1992 Supp (2) SCC 651
(ii) The failure on the part of the Speaker not to decide
the application seeking disqualification cannot be said to be in
the realm of procedure and is against the constitutional scheme
of adjudication contemplated by Tenth Schedule. The inaction
on the part of the Speaker goes against the rules framed as well
as the procedure prescribed under Tenth Schedule. (paragraph
29)
(iii) The action of the Speaker in not deciding the petition
for disqualification along with the petition for recognition of a
split in the party is a jurisdictional illegality and goes to the root
of the decision made by the Speaker with regard to split and
interference is permissible in exercise of powers of judicial review
even within parameters of judicial review laid down in Kihoto
Hollohan (supra). (paragraph 29)
(iv) The Speaker in the original order has left the
question of disqualification undecided which amounts to failure
to exercise jurisdiction under paragraph 6 of the Tenth Schedule
and cannot be said to be covered under shield of paragraph 6 of
the Tenth Schedule. The Speaker has committed an error which
is fundamental. (paragraph 40)
(v) The Court is bound to protect the Constitution, its
values and principles of democracy which is the basic feature of
the Constitution. It was noted that the term of Assembly was
coming to an end, therefore, the Court itself decided the issue of
disqualification. (paragraph 45)
(c) ERRABELLI DAYAKAR RAO:
42. A Division Bench decision of erstwhile High Court of
Andhra Pradesh dealt with the issue whether the High Court in
exercise of powers under Article 226 of the Constitution can
issue mandatory direction to the Speaker of a Legislative
Assembly to dispose of disqualification petition within a time
frame, in Errabelli Dayakar Rao vs. Talasani Srinivas Yadav67.
The Division Bench in the light of the decision of the
Constitution Bench of the Supreme Court in Kihoto Hollohan
(supra) held that the scope of judicial review, as set out in the
aforesaid decision does not cover any stage prior to making of a
decision by the Speaker. It was further held that Speaker while
exercising the powers and discharging the function under the
Tenth Schedule acts as a Tribunal and its decision is amenable
to judicial review. It was also held that no quia timet action is
67 2015 SCC OnLine Hyd 418
permissible in any stage prior to decision of the Speaker and the
scope of judicial review in respect of an order made under
Paragraph 6 is confined to jurisdictional errors only, namely
infirmities based on violation of constitutional mandate, mala
fides, non compliance of rules of natural justice and perversity.
The writ petition was, therefore, dismissed. However, the
Division Bench of the Andhra Pradesh High Court expressed
hope and trust that the Speaker shall decide the disqualification
petitions expeditiously.
(d) S.A.SAMPATH KUMAR:
43. One of the parties to the writ petition in Errabelli Dayakar
Rao (supra), namely S.A.Sampath Kumar filed Special Leave
Petition before the Supreme Court against the aforesaid order
passed by the Division Bench of the erstwhile Andhra Pradesh
High Court in Errabelli Dayakar Rao (supra).
A two-Judge Bench of the Supreme Court in S.A.Sampath
Kumar vs. Kale Yadaiah 68 held as under:
"4. We feel that a substantial question as to the
interpretation of the Constitution arises on the facts of
the present case. It is true that this Court in Kihoto
Hollohan case [Kihoto Hollohan v. Zachillhu, 1992 Supp
68 (2021) 16 SCC 528
(2) SCC 651] laid down that a quia timet action would
not be permissible and Shri Jayant Bhushan, learned
Senior Counsel appearing on behalf of some of the
respondents has pointed out to us that in P. Ramanatha
Aiyar's Advanced Law Lexicon a quia timet action is the
right to be protected against anticipated future injury
that cannot be prevented by the present action.
Nevertheless, we are of the view that it needs to be
authoritatively decided by a Bench of five learned
Judges of this Court, as to whether the High Court,
exercising power under Article 226 of the Constitution,
can direct a Speaker of a Legislative Assembly (acting in
quasi-judicial capacity under the Tenth Schedule) to
decide a disqualification petition within a certain time,
and whether such a direction would not fall foul of
the quia timet action doctrine mentioned in para 110
of Kihoto Hollohan case [Kihoto Hollohan v. Zachillhu,
1992 Supp (2) SCC 651] . We cannot be mindful
(sic unmindful) of the fact that just as a decision of a
Speaker can be corrected by judicial review by the High
Court exercising jurisdiction under Article 226, so prima
facie should indecision by a Speaker be correctable by
judicial review so as not to frustrate the laudable object
and purpose of the Tenth Schedule, which has been
referred to in both the majority and minority judgments
in Kihoto Hollohan case [Kihoto Hollohan v. Zachillhu,
1992 Supp (2) SCC 651] .
5. The facts of the present case demonstrate that
disqualification petitions had been referred to the
Hon'ble Speaker of the Telangana State Legislative
Assembly on 23-8-2014, and despite the hopes and
aspirations expressed by the impugned judgment
[Errabelli Dayakar Rao v. Talasani Srinivas Yadav, 2015
SCC OnLine Hyd 418] , the Speaker has chosen not to
render any decision on the said petitions till date. We,
therefore, place the papers before the Hon'ble Chief
Justice of India to constitute an appropriate Bench to
decide this question as early as possible.
6. This Court had passed an order dated 26-10-2016
[S.A. Sampath Kumar v. Kale Yadaiah, 2016 SCC
OnLine SC 1874] directing the Speaker to file an
affidavit stating therein how much time is required to
dispose of the petition filed by the petitioner. Since the
Speaker contests the very jurisdiction of the High Court
and consequently this Court to pass any such order, we
keep this order in abeyance."
Admittedly, the aforesaid reference has not been answered
and is pending consideration.
(e) KEISHAM MEGHACHANDRA SINGH:
44. Now we may advert to a decision rendered by a three-
Judge Bench of the Supreme Court in Keisham Meghachandra
Singh vs. Speaker, Manipur Legislative Assembly 69 . The
factual drop, in which the issues for consideration were:
(i) Whether Speaker of the Assembly, in acting as a
tribunal under Schedule X of the Constitution is not
69 (2021) 16 SCC 503
bound to decide disqualification petitions within a
reasonable period.
(ii) What is the scope of judicial review under Article 226
of the High Court and under Article 136 of the
Supreme Court of the exercise of power by Speaker
under Schedule X Para 6 of the Constitution?
45. The elections to the Manipur Assembly were held in March,
2017 which presented a hung Assembly with no political
securing a simple majority. Respondent No.3, a candidate
elected on a Congress Party ticket, allied himself with Bharatiya
Janata Party (BJP), after declaration of results. He was sworn in
as a Minister in the government led by BJP, being a Member of
Assembly on a Congress ticket. A plea of disqualification was
filed against respondent No.3 before the Speaker of the
Assembly. However, the Speaker did not take any action on the
said plea and kept the same pending. Thereupon, one
Mr. Haokip approached the High Court by way of a petition
under Article 226 of the Constitution and sought a direction to
the Speaker of the Assembly to decide the plea in a time bound
manner. The High Court inter alia held that issue with regard to
power of the Court to issue a time bound direction to the
Speaker to decide the disqualification petition was pending
adjudication before the Constitution Bench of the Supreme
Court. The High Court therefore directed the petitioner in the
said petition to await the outcome of the decision of the Supreme
Court.
46. The petitioner Mr. Haokip again approached the High
Court by filing a writ petition with a prayer to disqualify
respondent No.3 as Member of Assembly as he has incurred
disqualification by defecting into BJP, in view of decision of
Supreme Court in Rajendra Singh Rana vs. Swami Prasad
Maurya 70 . The petitioner prayed for a writ of quo-warranto to
remove him from the post of the Minister. The High Court in its
decision inter alia held that the Speaker is a quasi judicial
authority and is required to take a decision on the
disqualification petition within a reasonable time. It was further
held that remedy provided in the Tenth Schedule is an
alternative remedy and if the alternative remedy is ineffective
due to deliberate inaction or indecision on the part of the
Speaker, the Court cannot be denied the jurisdiction to issue an
appropriate writ to the Speaker. However, the High Court
70 (2007) 4 SCC 270
declined to issue the writ of quo-warranto on the ground that the
issue with regard to power of the Court to issue a time bound
direction to the Speaker to decide the disqualification petition
was pending adjudication before the Constitution Bench of the
Supreme Court. The said decision of the High Court was
challenged by way of a Special Leave Petition before the Supreme
Court.
47. The Supreme Court took note of the Constitution Bench
decisions of the Supreme Court in Kihoto Hollohan vs.
Zachillhu 71, Rajendra Singh Rana vs. Swami Prasad Maurya72
and S.A.Sampath Kumar vs. Kale Yadaiah 73, in paragraph 13
of its judgment in Keisham Meghachandra Singh vs. Speaker,
Manipur Legislative Assembly 74 noted that decision rendered
by a Constitution Bench of Supreme Court in Rajendra Singh
Rana (supra) unfortunately was not brought to the notice of a
two-Judge Bench in S.A.Sampath Kumar vs. Swami Prasad
Maurya (supra). In paragraphs 14 to 16, the relevant
paragraphs of decision rendered by a Constitution Bench in
Kihoto Hollohan (supra) were reproduced. In paragraphs 17 to
71 1992 Supp (2) SCC 651
72 (2007) 4 SCC 270
73 (2021) 16 SCC 528
74 (2021) 16 SCC 503
23, the Constitution Bench decision of Supreme Court in
Rajendra Singh Rana (supra) was referred. Thereafter, in
paragraphs 25, 30 and 33 it was held as under:
"25. Indeed, the same result would ensue on a proper
reading of Kihoto Hollohan [Kihoto Hollohan v. Zachillhu,
1992 Supp (2) SCC 651] . Paras 110 and 111 of the said
judgment when read together would make it clear that what
the finality clause in Para 6 of the Tenth Schedule protects
is the exclusive jurisdiction that vests in the Speaker to
decide disqualification petitions so that nothing should come
in the way of deciding such petitions. The exception that is
made is also of importance in that interlocutory interference
with decisions of the Speaker can only be qua interlocutory
disqualifications or suspensions, which may have grave,
immediate, and irreversible repercussions. Indeed, the Court
made it clear that judicial review is not available at a stage
prior to the making of a decision by the Speaker either by a
way of quia timet action or by other interlocutory orders.
30. A reading of the aforesaid decisions, therefore, shows
that what was meant to be outside the pale of judicial review
in para 110 of Kihoto Hollohan [Kihoto Hollohan v. Zachillhu,
1992 Supp (2) SCC 651] are quia timet actions in the sense
of injunctions to prevent the Speaker from making a
decision on the ground of imminent apprehended danger
which will be irreparable in the sense that if the Speaker
proceeds to decide that the person be disqualified, he would
incur the penalty of forfeiting his membership of the House
for a long period. Paras 110 and 111 of Kihoto
Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC
651] do not, therefore, in any manner, interdict judicial
review in aid of the Speaker arriving at a prompt decision as
to disqualification under the provisions of the Tenth
Schedule. Indeed, the Speaker, in acting as a tribunal under
the Tenth Schedule is bound to decide disqualification
petitions within a reasonable period. What is reasonable will
depend on the facts of each case, but absent exceptional
circumstances for which there is good reason, a period of
three months from the date on which the petition is filed is
the outer limit within which disqualification petitions filed
before the Speaker must be decided if the constitutional
objective of disqualifying persons who have infracted the
Tenth Schedule is to be adhered to. This period has been
fixed keeping in mind the fact that ordinarily the life of the
Lok Sabha and the Legislative Assembly of the States is 5
years and the fact that persons who have incurred such
disqualification do not deserve to be MPs/MLAs even for a
single day, as found in Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] , if they
have infracted the provisions of the Tenth Schedule.
33. It is not possible to accede to Shri Sibal's submission
that this Court issue a writ of quo warranto quashing the
appointment of Respondent 3 as a minister of a cabinet led
by a BJP Government. Mrs Madhavi Divan is right in stating
that a disqualification under the Tenth Schedule from being
an MLA and consequently minister must first be decided by
the exclusive authority in this behalf, namely, the Speaker of
the Manipur Legislative Assembly. It is also not possible to
accede to the argument of Shri Sibal that the disqualification
petition be decided by this Court in these appeals given the
inaction of the Speaker. It cannot be said that the facts in
the present case are similar to the facts in Rajendra Singh
Rana [Rajendra Singh Rana v. Swami Prasad Maurya, (2007)
4 SCC 270]. In the present case, the life of the Legislative
Assembly comes to an end only in March 2022 unlike
in Rajendra Singh Rana [Rajendra Singh Rana v. Swami
Prasad Maurya, (2007) 4 SCC 270] where, but for this Court
deciding the disqualification petition in effect, no relief could
have been given to the petitioner in that case as the life of
the Legislative Assembly was about to come to an end. The
only relief that can be given in these appeals is that the
Speaker of the Manipur Legislative Assembly be directed to
decide the disqualification petitions pending before him
within a period of four weeks from the date on which this
judgment is intimated to him. In case no decision is
forthcoming even after a period of four weeks, it will be open
to any party to the proceedings to apply to this Court for
further directions/reliefs in the matter."
48. The Supreme Court in the said decision explained the
decision in Kihoto Hollohan vs. Zachillhu 75 and inter alia held
that:
(i) Constitution Bench decision in Kihoto Hollohan (supra)
does not interdict judicial review in aid of the speaker arriving at
a prompt decision as to disqualification petitions under the
Tenth Schedule.
(ii) It was observed that Speaker as a Tribunal is bound to
decide the disqualification petition within a reasonable time and
what would be the reasonable time will depend on facts of each
case. It was further held that except in exceptional
75 1992 Supp (2) SCC 651
circumstances for which there is a good reason, a period of three
months from the date on which the petition is filed is the outer
limit, within which the petitioner for disqualification before the
Speaker must be decided, if the constitutional objective of
disqualifying the person who have infracted the Tenth Schedule
has to be adhered to. (paragraph 30)
(iii) The three-Judge Bench dealt with the relief, which
could be granted to the appellant, who was seeking a writ of quo-
warranto. It was held that the only relief which can be granted in
the appeal is a direction to the Speaker to decide the
disqualification petition within a period of four weeks from the
date of receipt of judgment. (paragraph 33)
(f) SUBHASH DESAI:
49. In a batch of writ petitions filed under Article 32 of the
Constitution of India, a Constitution Bench of Supreme Court in
Subhash Desai vs. Principal Secretary, Government of
Maharashtra 76 inter alia dealt with (a) the issue of reference of
decision rendered by Supreme Court in Nabam Rebia and
Bamang Felix vs. Arunachal Pradesh Legislative Assembly 77
to a Larger Bench, (b) power of Supreme Court to decide petition
76 (2024) 2 SCC 719
77 (2016) 8 SCC 1
for disqualification at the first instance, (c) the scope and ambit
of bar under Article 212 of the Constitution, (d) interpretation of
provisions of Tenth Schedule to the Constitution, Members of
Maharashtra Legislative Assembly (Disqualification on the
ground of defection) Rules, 1986 and Maharashtra Legislature
Members (Removal of disqualification) Act, 1956, (e) the purpose
of Tenth Schedule and the effect of disqualification, (f) the
purpose of Symbols Order and effect of decision under
paragraph 15 of the Symbols Order, (g) impact of deletion of
paragraph 3 of Tenth Schedule etc. The petitioners by placing
reliance on the decision of the Constitution Bench of the
Supreme Court in Rajendra Singh Rana vs. Swami Prasad
Maurya 78 made a prayer before the Constitution Bench either to
decide disqualification petitions itself or alternatively to issue a
direction to the Deputy Speaker to decide the disqualification
petitions.
50. The Constitution Bench of the Supreme Court in Subhash
Desai (supra) took note of its decisions in Kihoto Hollohan vs.
Zachillhu 79 , Rajendra Singh Rana (supra) and Keisham
Meghachandra Singh vs. Speaker, Manipur Legislative
78 (2007) 4 SCC 270
79 1992 Supp (2) SCC 651
Assembly 80. In paragraph 76 of its judgment, the Constitution
Bench referred to its decision rendered in Kihoto Hollohan
(supra) and held as under:
"76. In Kihoto Hollohan [Kihoto Hollohan v. Zachillhu,
1992 Supp (2) SCC 651], this Court held that the Speaker is
a Tribunal for the purposes of the Tenth Schedule.
Therefore, the exercise of power under the Tenth Schedule is
subject to the jurisdiction of courts under Articles 136, 226
and 227 of the Constitution. This Court further observed
that the finality clause contained in Para 6(2) did not
completely exclude the jurisdiction of courts. However, it
was held that such a clause limits the scope of judicial
review because the Constitution intended the Speaker or the
Chairman to be "the repository of adjudicatory powers"
under the Tenth Schedule. This Court held that judicial
review is not available at a stage prior to the decision of the
Speaker or Chairman, save in certain exceptional
circumstances detailed in that case. Thus, Kihoto
Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC
651] makes it evident that the exclusive power to decide the
question of disqualification under the Tenth Schedule vests
with the Speaker or Chairman of the House."
51. The Constitution Bench thereafter referred to its decision
rendered in Rajendra Singh Rana (supra), in paragraphs 78,
79, 86 and 88, which are extracted below for the facility of
reference, held as under :
80 (2021) 16 SC 503
"78. In Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270],
disqualification petitions were filed against thirteen MLAs of
the Bahujan Samaj Party ("BSP") on 4-9-2003. On 26-8-
2003, the Speaker accepted a split in the BSP and
recognised a separate group by the name of Lok Tantrik
Bahujan Dal. The thirteen MLAs against whom
disqualification petitions were instituted were also part of
the Lok Tantrik Bahujan Dal. On 6-9-2003, the Speaker
accepted the merger of the Lok Tantrik Bahujan Dal with the
Samajwadi Party without deciding the disqualification
petitions against the thirteen MLAs. On 7-9-2005, the
Speaker rejected the disqualification petitions against the
MLAs. By its judgment dated 28-2-2006 [Swami Prasad
Maurya v. Speaker, U.P. Legislative Assembly, 2006 SCC
OnLine All 2216] , the High Court quashed the order of the
Speaker rejecting the disqualification petitions against the
MLAs and directed him to reconsider the petitions.
79. On appeal, this Court observed [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] that it
would not be appropriate for it to decide the disqualification
petitions for the first time when the authority concerned had
not taken a decision. It observed that this Court would
normally remit the matter to the Speaker or Chairman to
take a proper decision in accordance with law. However, this
Court decided to adjudicate the disqualification petitions in
view of the following peculiar facts and circumstances :
(i) the Speaker of the Legislative Assembly in that case failed
to decide the question of disqualification in a time-bound
manner; (ii) the Speaker decided the issue of whether there
was a split in the party without deciding whether the MLAs
in question were disqualified; and (iii) the necessity of an
expeditious decision in view of the fact that the
disqualification petitions were not decided by the Speaker for
more than three years and the term of the Assembly was
coming to an end. In view of the above facts and
circumstances, this Court was of the opinion that remanding
the disqualification proceedings to the Speaker would lead to
them becoming infructuous.
86. In Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] , a
Constitution Bench of this Court observed that
disqualification is incurred at the point when the MLA
indulges in conduct prohibited under the Tenth Schedule.
The petitioners rely on this observation to contend that the
validity of the proceedings in the House during the pendency
of the disqualification petitions depends on the outcome of
the disqualification petitions. The petitioners urge that
though the MLAs cannot be barred from participating in the
proceedings of the House merely on the initiation of
disqualification petitions against them, the outcome of such
proceedings will be subject to the decision of the Speaker in
the pending disqualification petitions. It is important to
understand the context in which this Court
decided Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270] to
appreciate the gamut of its observations.
88. This Court held that the Speaker could not have
decided whether a split existed dehors the disqualification
petitions. The Court considered the issue of the point in time
when the defence of a split must have existed. The
respondents in that case contended that the defence of a
split in terms of Para 3 must have existed on the day on
which the MLAs indulged in prohibitory conduct. In
response, the petitioners contended that it is sufficient for
the MLAs to prove a split in terms of Para 3 as on the day
when the disqualification petitions are decided by the
Speaker. It was in this context that this Court observed that
the MLAs incurred disqualification when they indulged in
prohibitory conduct and therefore, the defence to
disqualification (in this case, a split) must also have existed
when the MLAs indulged in prohibitory conduct."
52. In paragraph 84 of its decision, the Supreme Court dealt
with the decision rendered by three-Judge Bench in Keisham
Meghachandra Singh vs. Speaker, Manipur Legislative
Assembly 81. Paragrah 84 reads as under:
"84. A similar submission was made before this Court
in Keisham Meghachandra Singh v. Manipur Legislative
Assembly [Keisham Meghachandra Singh v. Manipur
Legislative Assembly, (2021) 16 SCC 503 : 2020 SCC OnLine
SC 55], wherein it was submitted that this Court should
issue a writ of quo warranto against the appointment of an
MLA as a minister when disqualification petitions are
pending. Rejecting the submission, this Court held as under
: (SCC pp. 513 & 527, paras 10 & 33)
"10. Shri Kapil Sibal, learned Senior Advocate
appearing on behalf of the Appellant, in the Civil
Appeal arising out of SLP (C) No. 18659 of 2017, has
argued that the Speaker in the present case has
deliberately refused to decide the disqualification
petitions before him. ... In these circumstances, he
has exhorted us to issue a writ of quo warranto
against Respondent 3 stating that he has usurped a
81 (2021) 16 SCC 503
constitutional office, and to declare that he cannot do
so. ...
***
33. It is not possible to accede to Shri Sibal's
submission that this Court issue a writ of quo
warranto quashing the appointment of Respondent 3
as a minister of a cabinet led by a BJP Government.
Mrs Madhavi Divan is right in stating that a
disqualification under the Tenth Schedule from being
an MLA and consequently minister must first be
decided by the exclusive authority in this behalf,
namely, the Speaker of the Manipur Legislative
Assembly. It is also not possible to accede to the
argument of Shri Sibal that the disqualification
petition be decided by this Court in these appeals
given the inaction of the Speaker. It cannot be said
that the facts in the present case are similar to the
facts in Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270].
In the present case, the life of the Legislative
Assembly comes to an end only in March 2022 unlike
in Rajendra Singh Rana [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270]
where, but for this Court deciding the disqualification
petition in effect, no relief could have been given to
the petitioner in that case as the life of the Legislative
Assembly was about to come to an end. The only
relief that can be given in these appeals is that the
Speaker of the Manipur Legislative Assembly be
directed to decide the disqualification petitions
pending before him within a period of four weeks
from the date on which this judgment is intimated to
him. In case no decision is forthcoming even after a
period of four weeks, it will be open to any party to
the proceedings to apply to this Court for further
directions/reliefs in the matter."
53. The Constitution Bench in paragraph 85 of its decision
concluded that the Speaker is the appropriate constitutional
authority to decide the disqualification petition under the Tenth
Schedule. Thereafter, the Supreme Court inter alia held that the
decision rendered in Nabam Rebia and Bamang Felix vs.
Arunachal Pradesh Legislative Assembly 82 needs reference to
a Larger Bench of seven-Judges and recorded the conclusions in
paragraph 213 of its judgment. The conclusion recorded by the
Supreme Court, relevant for the purposes of controversy, is
extracted below for the facility of reference:
"213.2. This Court cannot ordinarily adjudicate
petitions for disqualification under the Tenth Schedule in
the first instance. There are no extraordinary circumstances
in the instant case that warrant the exercise of jurisdiction
by this Court to adjudicate disqualification petitions. The
Speaker must decide disqualification petitions within a
reasonable period;"
(xv) PRINCIPLE OF RATIO DECIDENDI:
54. We now deal with the principle of ratio decidendi. It is well
settled that the ratio of a decision has to be understood in the
82 (2016) 8 SCC 1
background of the facts of the case and difference in facts or
additional facts may make a lot of difference in precedential
value of a decision (see Ambica Quarry Works vs. State of
Gujarat and others 83 and Bhavnagar University vs. Palitana
Sugar Mills (Private) Limited 84 ). It is equally well settled
proposition that Court should not place reliance on the decision
without discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance has been
placed. It is trite that observations of the Court are neither to be
read as Euclid's Theorems nor as provisions of the Statute (see
Bharat Petroleum Corporation Limited vs. N.R. Vairamani
and another 85).
55. In Halsbury's Laws of England (fourth edition, para 1237),
the principle has been stated as under:
"The enunciation of the reason or principle which a
question before a Court has been decided is alone binding as
a precedent. This underlying principle is called the 'ratio
decidendi', namely the general reasons given for the decision
or the general grounds upon which it is based, detached or
abstracted from the specific peculiarities of the particular
case which give rise to the decision."
83 (1987) 1 SCC 213
84 (2003) 2 SCC 111
85 AIR 2004 SC 477
56. The said principle has been reiterated and followed in
Deepak Bajaj vs. State of Maharashtra 86 and Madhya Pradesh
Housing and Infrastructure Development Board vs. BSS
Parihar 87 and it has been held that decision is an authority for
what it actually decides. It has further been held that what is of
essence in a decision is its ratio and neither every observation
finds therein nor what logically follows from various observations
in the judgment. It is also held that enunciation of reason or
principle on which a question before the court has been decided
alone is binding as a precedent.
57. The following words of Lord Denning in the matter of
applying precedents, which have been referred to by the
Supreme Court in Madhya Pradesh Housing and
Infrastructure Development Board (supra) have become locus
classicus.
"Each case depends on its own facts and a close
similarity between one case and another is not enough
because even a single significant detail may alter the entire
aspect. In deciding such cases, one should avoid the
temptation to decide cases (as said by Cardozo, J) by
matching the colour of another. To decide, therefore, on
which side of the line a case falls, the broad resemblance to
another case is not at all decisive.
86 (2008) 16 SCC 14
87 (2015) 14 SCC 130
* * *
Precedent should be followed only so far as it marks the
path of justice, but you must cut the dead wood and trim off
the side branches else you will find yourself lost in thickets
and branches. My plea is to keep the path of justice clear of
obstructions which could impede it."
58. At this stage, we may take note of another well settled legal
principle that this Court is required to decide the matter on the
basis of law as it stands and it is not open, unless specifically
directed by the Supreme Court to await the outcome of
Reference or a review petition, as the case may be (see Union
Territory of Ladakh and others vs. Jammu and Kashmir
National Conference and another 88). Thus, it is evident that
notwithstanding the order passed by the Supreme Court in
S.A.Sampath Kumar vs. Kale Yadaiah 89 referring the issue
involved in these appeals to a Larger Bench, this Court has to
decide these appeals on the basis of law as it stands today.
59. In Gonal Bihimappa vs. State of Karnataka 90 , the
Supreme Court has held that in a precedent bound judicial
system binding authorities have got to be respected and the
88 2023 SCC OnLine SC 1140
89 (2021) 16 SCC 528
90 AIR 1987 SC 2359
procedure for developing the law has to be one of evolution. This
Court is bound by the ratio decidendi i.e., the principle of law.
60. Therefore, we are required to ascertain the principle of law
which binds this Court. From perusal of the Constitution Bench
decisions of the Supreme Court in Kihoto Hollohan vs.
Zachillhu 91 and Rajendra Singh Rana vs. Swami Prasad
Maurya 92, a three-Judge Bench decision of the Supreme Court
in Keisham Meghachandra Singh vs. Speaker, Manipur
Legislative Assembly 93 as well as another Constitution Bench
decision of the Supreme Court in Subhash Desai vs. Principal
Secretary, Government of Maharashtra 94, the position in law
which emerges is as under:
(i) In Kihoto Hollohan (supra), the Constitution Bench
of the Supreme Court while upholding the validity of the Tenth
Schedule to the Constitution held that judicial review is not
available at a stage prior to making of the decision by the
Speaker and no interference is called for at interlocutory stage of
the proceeding except where such disqualification or suspension
is imposed during the pendency of the proceeding and such
91 1992 Supp (2) SCC 651
92 (2007) 4 SCC 270
93 (2021) 16 SCC 503
94 (2024) 2 SCC 719
disqualification or suspension is likely to have grave, immediate
and irreversible repercussions and consequences.
(ii) In Kihoto Hollohan (supra), it was further held that
finality clause in Paragraph 6 of the Tenth Schedule to the
Constitution of India does not completely exclude the
jurisdiction of the Court under Articles 136, 226 and 227 of the
Constitution of India, but limits the scope of jurisdiction of the
Courts to jurisdictional errors only, i.e., infirmities based on
violation of constitutional mandates, mala fides, non-compliance
of rules of natural justice and perversity.
(iii) In Rajendra Singh Rana (supra), the Constitution
Bench dealt with validity of the order passed by the Speaker in
deciding the split or merger of a political party and in postponing
the decision on petition for disqualification. While placing
reliance on the decision rendered by the Constitution Bench in
Kihoto Hollohan (supra), it was held that failure on the part of
the Speaker to decide the petition for disqualification
simultaneously with the petition for split or merger of a political
party is a jurisdictional infirmity and the decision of the Speaker
is liable to be set aside in exercise of power of judicial review as
recognised in Kihoto Hollohan (supra). (paragraphs 25 and 29)
(iv) The Constitution Bench decision of the Supreme
Court in Rajendra Singh Rana (supra) did not decide the issue
whether in exercise of power of judicial review under Article 226
of the Constitution of India, the High Court can issue a direction
to the Speaker to decide a petition for disqualification within a
certain time.
(v) In the peculiar facts of the case, taking into account
the fact that the term of the Assembly was about to expire and
the Court is bound to protect the Constitution, its values and
principles of democracy, the Constitution Bench of the Supreme
Court in Rajendra Singh Rana (supra) decided the
disqualification petition etc.
(vi) A three-Judge Bench of the Supreme Court in
Keisham Meghachandra Singh vs. Speaker, Manipur
Legislative Assembly 95 dealt with a case where a writ of quo-
warranto on account of disqualification incurred under the
Tenth Schedule to the Constitution of the Constitution of India
was sought. The Supreme Court in penultimate paragraph of its
judgment held that the only relief which can be given to the
appellant in that case is a direction to the Speaker to decide the
95 (2021) 16 SCC 503
disqualification petitions pending before him, within a period of
four weeks from the date of receipt of judgment.
(vii) In Keisham Meghachandra Singh (supra), the writ
petitioner had sought a relief of quo-warranto. The Supreme
Court moulded the relief and directed the Speaker to decide the
disqualification petition in a time bound manner. The said
decision is not an authority for the proposition that this Court in
exercise of powers of judicial review under Article 226 of the
Constitution of India can direct the Speaker to decide the
disqualification petition in a time bound manner. For yet
another reason, we say so. The three-Judge Bench of the
Supreme Court was conscious that the aforesaid issue is
pending consideration before the Constitution Bench of five-
Judges in S.A.Sampath Kumar vs. Kale Yadaiah 96.
(viii) In its latest decision, namely Subhash Desai vs.
Principal Secretary, Government of Maharashtra 97 , the
Constitution Bench of the Supreme Court considered its
decisions in Kihoto Hollohan (supra), Rajendra Singh Rana
(supra) and Keisham Meghachandra Singh (supra). In the
aforesaid decisions, one of the reliefs prayed before the Supreme
96 (2021) 16 SCC 528
97 (2024) 2 SCC 719
Court was either to decide the disqualification petition itself or to
issue a direction to the Deputy Speaker to decide the
disqualification petition.
(ix) The Constitution Bench of the Supreme Court in
Subhash Desai (supra) while considering Rajendra Singh Rana
(supra) held that the Constitution Bench in the aforesaid
decision decided the disqualification petition in the peculiar
facts of the case. It was further held that the Speaker has the
exclusive authority to decide the petition for disqualification,
except in exceptional circumstances.
(x) The Constitution Bench of the Supreme Court in
Subhash Desai (supra) concluded in paragraph 213.2 that the
Speaker is bound to decide the disqualification petition within a
reasonable time.
61. The decision of the Constitution Bench of the Supreme
Court in Subhash Desai (supra) considers its previous decisions
in Kihoto Hollohan (supra), Rajendra Singh Rana (supra) and
Keisham Meghachandra Singh (supra) and lays down the legal
principle more elaborately and accurately by stating that the
petition seeking disqualification should be decided by the
Speaker within a reasonable time. Therefore, the ratio of the
decision of the Supreme Court in Subhash Desai (supra) binds
this Court. Insofar as the decision in Errabelli Dayakar Rao vs.
Talasani Srinivas Yadav 98 of the erstwhile High Court of
Andhra Pradesh is concerned, suffice it to say that the aforesaid
decision was rendered prior to the decision in Subhash Desai
(supra).
62. In view of the preceding analysis, it is evident that the
Speaker is the Authority to decide the disqualification petitions,
who exercises the powers under the Tenth Schedule to the
Constitution of India. The Speaker is a high constitutional
functionary. Our society is governed by rule of law and the
Constitution is the supreme. The Speaker exercises power under
the Tenth Schedule and the same is subject to judicial review on
the grounds set out in Kihoto Hollohan (supra) and as referred
to by the Supreme Court in Rajendra Singh Rana (supra) and
Subhash Desai (supra). The Speaker of the Assembly is required
to decide the disqualification petitions within a reasonable time.
What would be the reasonable time depends in the facts and
circumstances of each case.
98 2015 SCC OnLine Hyd 418
63. The learned Single Judge has directed the Secretary,
Telangana Legislative Assembly to place the disqualification
petitions before the Speaker. It is pertinent to note that the
disqualification petitions were filed on 01.07.2024. Thereafter,
the writ petitions were filed on 09.07.2024, which were decided
by the learned Single Judge by a common order dated
09.09.2024. Against the aforesaid common order passed by the
learned Single Judge, these writ appeals are filed on 30.09.2024.
This Court on 03.10.2024 passed the interim order granting
liberty to mention the matter in case any precipitative action is
taken against the appellant on or before 24.10.2024 and the
case was directed to be posted for final disposal on 24.10.2024.
Thus, four and half months have lapsed since filing of the
disqualification petitions. The action on the petition seeking
disqualification has to be taken in consonance with the Rules.
64. For the aforementioned reasons, the common order dated
09.09.2024 passed by the learned Single Judge in
W.P.Nos.9472, 11098 and 18553 of 2024 is set aside. The
Speaker of the Telangana Legislative Assembly must decide the
disqualification petitions filed by the writ petitioners within a
reasonable time. Needless to state that the Speaker while dealing
with the disqualification petitions shall bear in mind the concept
of reasonable time, by taking into account the period of
pendency of the disqualification petitions, the object of inclusion
of the Tenth Schedule to the Constitution of India as well as the
tenure of the Assembly.
65. Accordingly, the writ appeals are disposed of. There shall
be no order as to costs.
Miscellaneous applications, pending if any, shall stand
closed.
_______________________________
ALOK ARADHE, CJ
_______________________________
J.SREENIVAS RAO, J
22.11.2024
Note: LR copy be marked.
(By order)
Pln
