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TMI Blog2020 (1) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... Party (hereinafter referred to as "BJP") coming second with 21 seats. The Respondent No.3, in the Civil Appeal arising out of SLP(C) No. 18659 of 2019, contested as a candidate nominated and set up by the Congress Party and was duly elected as such. On 12.03.2017, immediately after the declaration of the results, Respondent No.3 along with various BJP members met the Governor of the State of Manipur in order to stake a claim for forming a BJP-led Government. On 15.03.2017, the Governor invited the group lead by the BJP to form the Government in the State. On the same day, the Chief Minister-Designate sent a letter to the Governor for administering oath as Ministers to eight elected MLAs including Respondent No.3. On the same day, Respondent No.3 was sworn in as a Minister in the BJP-led government and continues as such till date. 3. As many as thirteen applications for the disqualification of Respondent No.3 were filed before the Speaker of the Manipur Legislative Assembly between April and July, 2017 stating that Respondent No.3 was disqualified under paragraph 2(1)(a) of the Tenth Schedule. The present petition that was filed by the Appellant, in the Civil Appeal arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 is found to have incurred a prima facie disqualification, whether this Court can issue an order disqualifying the respondent No. 3 from being a member of the Manipur Legislative Assembly or alternatively, whether this Court has the power and jurisdiction to issue a writ of quo warranto declaring the holding of the post of a Minister by the respondent No. 3 as illegal, as it being without any authority of law?" 7. In answer to a preliminary objection taken by the Speaker that judicial review is shut out in cases like the present, the High Court held that the Speaker is a quasi-judicial authority who is required to take a decision within a reasonable time, such reasonable time obviously being a time which is much less than five years since the life of the House was five years. The High Court held that the remedy provided in the Tenth Schedule is in essence an alternative remedy to be exhausted before approaching the High Court, and this being the case, if such alternative remedy is found to be ineffective due to deliberate inaction or indecision on the part of the Speaker, the Court cannot be denied jurisdiction to issue an appropriate writ to the Speaker. Consequently, the prel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illhu & Ors. (1992) Supp. (2) SCC 651, that all that was interdicted by that judgment was the grant of interlocutory stays which would prevent a Speaker from making a decision and not the other way around. For this purpose, he read to us Black's Law Dictionary on the meaning of a quia timet action, and argued that the judgment read as a whole would make it clear that if the constitutional objective of checking defections is to be achieved, judicial review in aid of such goal can obviously not be said to be interdicted. He also strongly relied upon the observations of this Court in Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270 and exhorted us to uphold the reasoning contained in the impugned judgment and then issue a writ of quo warranto against Respondent No.3. 9. Mrs. Madhavi Divan, learned Addl. Solicitor General appearing for the Hon'ble Speaker of the Manipur Legislative Assembly, has argued that the reliefs prayed for in the writ petition filed by the Appellant, in the Civil Appeal arising out of SLP(C) No. 18659 of 2017, are diametrically opposed to the relief asked for in Writ Petition (C) No.353 of 2017, as a result of which, there being mutually destructive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Attorney General and the learned counsel appearing on behalf of the petitioner. 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's case 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 paragraph 110 of Kihoto Hollohan's case. We cannot be mindful of the fact that just as a decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of any Court. The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to, but constitutionally immune from, curial adjudicative processes. (F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional 'finality' to the decision of the Speaker or the Chairman, as the case may be, and that such concept of 'finality' bars examination of the matter by the Courts." 13. The majority judgment noticed that before the Constitution (Fifty Second Amendment) Act, 1985 inserting the Tenth Schedule into the Constitution of India, two abortive attempts were made in view of the recommendations of the Committee on Defections to enact an antidefection law. The first was the Constitution (Thirty Second Amendment) Bill, 1973, which lapsed on account of dissolution of the House; and the second was the Constitution (Forty Eighth Amendment) Bill, 1979 which also so lapsed. The Court in paragraphs 9 and 13 referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule. xxx xxx xxx 100. By these well known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal. xxx xxx xxx 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, noncompliance with rules o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 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." 15. In Rajendra Singh Rana (supra), this Court dealt with an order made by the Speaker of the Uttar Pradesh Legislative Assembly dated 06.09.2003. On the facts in that case, the 14th Legislative Assembly Election for the State of U.P. was held in February, 2002 and since none of the political parties secured the requisite majority, a coalition government was formed headed by Ms. Mayawati, leader of the Bahujan Samaj Party (hereinafter referred to as "BSP"). On 25.08.2003, the Cabinet took a unanimous decision for recommending dissolution of the Assembly, after which, on 27.08.2003, 13 members of the Legislative Assembly elected to the Assembly on tickets of the BSP met the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open the question whether the petition seeking disqualification should not have been decided first or at least simultaneously with the application claiming recognition of a split. If the order recognising the split goes, obviously this last order also cannot survive. It has perforce to go." [Emphasis Supplied] 17. After referring to this Court's decision in Kihoto Hollohan (supra) and Ravi S. Naik (supra) in para 22 of the judgment, the Court held: "22. ...Suffice it to say that the decision of the Speaker rendered on 6-9-2003 was not immune from challenge before the High Court under Articles 226 and 227 of the Constitution of India." 18. The Court then went on to hold: "25. ...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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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." [Emphasis Supplied] 20. The Court then adverted to the scope of judicial review being limited as decided in Kihoto Hollohan (supra) as follows: "39. On the side of the 37 MLAs, the scope of judicial review being limited was repeatedly stressed to contend that the majority of the High Court had exceeded its jurisdiction. Dealing with the ambit of judicial review of an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : JT (2007) 2 SC 1] . We are of the view that contours of interference have been well drawn by Kihoto Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC 412 : (1992) 1 SCR 686] and what is involved here is only its application. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. 24. A quia timet action has been described in Black's Law Dictionary as follows: "Quia Timet. Because he fears or apprehends. In equity practice, the technical name of a bill filed by a party who seeks the aid of a court of equity, because he fears some future probable injury to his rights or interests, and relief granted must depend on circumstances." 25. The leading judgment referred to insofar as quia timet actions are concerned is the judgment in Fletcher v. Bealey (1884) 28 Ch. D. 688. In this case, a quia timet action was asked for to interdict the tort of nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw as to actions quia timet as follows: "There are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action"." 28. A reading of the aforesaid decisions, therefore, shows that what was meant to be outside the pale of judicial review in paragraph 110 of Kihoto Hollohan (supra) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court is outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a Member of Legislature is outside the House as envisaged by Articles 103 and 192. 182. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity atta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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