The Supreme Court on Thursday said it cannot ordinarily adjudicate disqualification petitions against legislators under the anti-defection law and directed the Maharashtra Assembly speaker to take a decision on such pleas against Chief Minister Eknath Shinde and other MLAs within a reasonable period.
A five-judge bench headed by Chief Justice D Y Chandrachud rejected the submission of the Uddhav Thackeray faction of the Shiv Sena that the top court should adjudicate the pending disqualification petitions against Shinde and others on the ground that the incumbent speaker, Rahul Narwekar, is biased.
”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 the disqualification petitions within a reasonable period,” the bench said.
The bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, in a unanimous verdict said in the absence of exceptional circumstances, the speaker is the appropriate authority to adjudicate petitions for disqualification under the Tenth Schedule of the Constitution.
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”This court should normally refrain from deciding disqualification petitions at the first instance, having due regard to constitutional intendment. The question of disqualification ought to be adjudicated by the constitutional authority concerned, namely the speaker of the Legislative Assembly, by following the procedure prescribed,” the bench said.
CJI Chandrachud, who penned down the 141-page verdict on behalf of the bench, said the disqualification of a person as a member of a House has drastic consequences for the member concerned and by extension, for the citizens of that constituency and therefore, any question of disqualification ought to be decided by following the procedure established by law.
The bench did not agree with the submission of the Thackeray faction that the speaker cannot be entrusted with the adjudication of the disqualification petitions because he is ”biased and partial” as he was appointed with the support of the MLAs against whom such petitions have been filed.
It said in a parliamentary democracy, the speaker is an officer of the Assembly and performs the function of presiding over the House proceedings and representing the House for all intents and purposes.
”The incumbent speaker of the Maharashtra Legislative Assembly has been duly elected by the MLAs in terms of the procedure laid down under the Maharashtra Assembly Rules, 1960,” the court said, adding that the petitioners (the Thackeray faction) have referred to Narwekar’s decision to cancel the recognition of Sunil Prabhu as the Shiv Sena Chief Whip on July 3, 2022 to argue that he is biased and impartial.
”The decision of the speaker to cancel the recognition of Prabhu has also been challenged in the instant proceedings. Even if this court sets aside the decision of the speaker cancelling the recognition of Prabhu on merits, it would not be a sufficient reason for this court to decide the disqualification petitions,” it said.
The bench said it is also unable to accept the alternative submission of the petitioners to direct the deputy speaker to adjudicate the question of disqualification for the simple reason that the Maharashtra Legislative Assembly has duly elected the speaker, who has been entrusted with the authority to decide disqualification petitions under the Constitution.
”The deputy speaker can perform the duties of the speaker only when the office of the speaker is vacant. As observed in Kihoto Hollohan (a 1992 verdict) and Shrimanth Balasaheb Patil (a 2020 verdict), the speaker is expected to act fairly, independently and impartially while adjudicating disqualification petitions under the Tenth Schedule,” it said.
The bench added that ultimately, the speaker’s decision on the question of disqualification is subject to a judicial review and ”therefore, this court is of the opinion that the speaker of the Maharashtra Legislative Assembly is the appropriate constitutional authority to decide the question of disqualification under the Tenth Schedule”.
On June 23, 2022, the then chief whip of the Shiv Sena Legislature Party (SSLP), Sunil Prabhu, filed petitions under the Tenth Schedule for the disqualification of Shinde and 15 other Shiv Sena MLAs.
Deputy Speaker Narhari Zirwal issued notices to Shinde and the other MLAs on June 25, seeking their replies by June 27.
Shinde and the other MLAs then moved the top court, which on June 27 extended the time to respond to the disqualification petitions from June 27 to July 12, 2022.