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Tamil Nadu MLA's Disqualification Issue: Shakkrapani v. Secretary, Tamil Nadu Legislative Assembly & Ors

The document summarizes a legal issue regarding the disqualification of 11 AIADMK MLAs in Tamil Nadu, including the Deputy Chief Minister, for voting against their party in a confidence motion in 2017. The DMK had filed disqualification petitions with the Speaker, but the Speaker did not make a decision for over 3 years. The DMK challenged this delay in court. While courts cannot direct the Speaker's decision, the Supreme Court said the Speaker must decide within the mandated 3 month period. However, no decision has yet been made, so the DMK has filed another petition asking the Supreme Court to issue a writ of mandamus directing the Speaker to decide. There is debate around whether Speakers can impartially decide dis

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54 views

Tamil Nadu MLA's Disqualification Issue: Shakkrapani v. Secretary, Tamil Nadu Legislative Assembly & Ors

The document summarizes a legal issue regarding the disqualification of 11 AIADMK MLAs in Tamil Nadu, including the Deputy Chief Minister, for voting against their party in a confidence motion in 2017. The DMK had filed disqualification petitions with the Speaker, but the Speaker did not make a decision for over 3 years. The DMK challenged this delay in court. While courts cannot direct the Speaker's decision, the Supreme Court said the Speaker must decide within the mandated 3 month period. However, no decision has yet been made, so the DMK has filed another petition asking the Supreme Court to issue a writ of mandamus directing the Speaker to decide. There is debate around whether Speakers can impartially decide dis

Uploaded by

Nishant
Copyright
© © All Rights Reserved
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Tamil Nadu MLA’s disqualification issue

Introduction:

In our constitutional scheme, the Speaker enjoys a pivotal position. The position is and has
been held by people of outstanding ability and impartiality. In the past, certain questions have
been raised about the confidence in the matter of impartiality on some issues having political
overtones which are decided by the Speaker. The present article puts light on powers of the
Speaker with its limitation and mandatory provisions under our Constitution. Its power to
decide the questions of disqualification of members under Schedule X.

DMK Moves Supreme Court:

Recently DMK moved to Supreme Court against Assembly Speaker of Tamil Nadu
government for the delay in decision against 11 AIADMK MLA’s including Deputy Chief
Minister O. Paneerselvam who voted against Edappadi. K. palaniswami government in a
confidence motion in 2017. By voting against the motion, MLA’s violated the whip and
hence attracted disqualification under anti-defection law. DMK has requested the Supreme
Court to use its extraordinary power.
In September 2017, DMK whip Chief R Chakrapani moved Madras High Court seeking
disqualification of 11 AIADMK MLA’s under anti- defection law. Madras High Court last
year in April declined a plea by DMK to disqualify 11 MLA’s. The High Court held that the
issue as to whether a direction to take timely decision can be issued to the Speaker is still
pending before the Supreme Court. Subsequently, DMK moved to apex court for an appeal.
The order by the Apex court in Shakkrapani v. Secretary, Tamil Nadu Legislative Assembly &
Ors dated 14 February directed Speaker to decide the matter in accordance with the law.
Chief Justice Bobde said the Speakers 3 years delay on deciding the plea was “unnecessary”.
Four months have been passed whereas the law requires decision to be given by the Speaker
within 3 months of a petition as per the recent judgment.1
Facts of the issue:

 On 18th February 2017, 11 MLA’s including Paneerselvam had voted against the vote
of confidence moved by their own party i.e. AIADMK.
 This action was condoned by the Party and accordingly disqualification petitions were
moved before the Speaker.
 The Speaker kept the applications pending.
 In order to direct the Speaker DMK moved to Madras High Court last year.
 However, when Madras High Court declined the plea they went to Apex Court in
February 2020.
 Supreme Court directed the Speaker to decide the disqualification petitions in
accordance with the law which was disposed on 14th February 2020.
 Despite the order the DMK Chief whip contends that no decision has been given by
the Speaker and hence filed a writ petition under Article 32 directing the Apex court
to issue the writ of mandamus against the Speaker of Tamil Nadu.

1
Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur Legislative Assembly & Ors (2020).
Legal provisions involved

Disqualification petition were moved before the Speaker under Paragraph 2 (1)(b) of the 10 th
Schedule better known as anti-defection law. It lays down the process by which member may
be disqualified on grounds of defection by the Presiding Officer of a legislature based on a
petition by any other member of the House. So, if the member decides to abstain or votes
against the party whip on the issue, he can lose the membership of the house.

The law grants special powers to the Speaker or Chairman as the case may be to decide the
matter of disqualification on the grounds of defection mentioned in the 10th Schedule of the
Indian Constitution.

The present petition has been filed against Speaker as his inaction in deciding the matter
violates the rights of petitioner under Article 14, Article 19, Article 164 (1B), Article 191 and
the 10th Schedule of the Constitution.

Critical analysis:

However, the question remains whether Courts have power to direct the Speakers to decide
the petitions seeking disqualification within a fixed time frame?

The question has arisen because several presiding officers have allowed to bolster the
strength of ruling parties and refrained to take any action against the complaints. This was
extensively dealt with in the landmark judgment Kihoto Hollahan v Zachilhu and Ors.
(1992) and reference to larger bench in S.A. Sampath Kumar vs. Kale Yadaiah (2016).
This judgment had also made the Speaker’s order subject to judicial review. However, Court
would not interfere unless Speaker leaves no room for intervention.
If the Speaker fails to decide on the matter Supreme Court under its plenary power should
intervene and decide the matter swiftly. Just in another case wherein removal of Manipur
Forest Cabinet Minister TH Shyamkumar the Apex Court had invoked its plenary power
under Article 142 of the Constitution to remove minister from any government as the Speaker
despite its specific directions could not decide on disqualification.

Conclusion and way forward:

 For proper functioning of Democracy there is a need to decide issues pertaining to


disqualification on the grounds of defection swiftly and impartially.
 Any Presiding Officer should be independent and not be pressurised by any ruling
party. He should give decision against disqualification of MLA’s independently and
fairly.
 Various expert committees have recommended that rather than the Presiding Officer,
the decision to disqualify a member should be made by the President (in case of MPs)
or the Governor (in case of MLAs) on the advice of the Election Commission which
is similar to the case when person holds office of profit.
 Considering the fact that Speaker continues to belong to a particular political party,
Supreme Court recently in Keisham Meghachandra Singh suggested Parliament to
rethink on whether disqualification petitions ought to be entrusted to a Speaker as a
quasi-judicial authority. The court recommended amendment to the 10th Schedule by
substituting Speaker with a permanent tribunal or some independent mechanism.
To conclude, regulation of the 10th Schedule along with the correct working directives that
adhere to transparency and accountability in a democracy is the need of the hour.

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