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In 2017 when 11 MLAs voted against the chief minister Edappadi Palaniswami in the confidence motion, Plea for their disqualification was made before the speaker under the paragraph 2(1)(b) of the tenth schedule of the Indian Constitution but no action was taken by the speaker on the disqualification notice. Therefore, a writ petition for mandamus was made for the same before the High Court of Madras which was dismissed by it for which it stated the reason that issuance of mandamus to the speaker was a pending consideration before the Supreme Court. Henceforth, a special leave petition was made in the Supreme Court asking whether a constitutional court can issue a mandamus under the tenth schedule of the constitution to disqualify a member when speaker abandons his duty.
To this the supreme court in February, 2020 closed the case in connection with the disqualification and instructed the speaker of Tamil Nadu Assembly P Dhanapal to take action on the plea as soon as possible and 3 years of delay in taking any action in the matter is unreasonable while it is a constitutional duty of the speaker to take action on such matters. Also, the disqualification case of Manipur where 18 MLAs were disqualified has created law of the land. So according to its judgement the speaker is required to decide the fate of speakers and take action on the matter as soon as possible.
Upon the sudden demise of Dr. J. Jayalalithaa the Chief Minister of the state on 5.12.2016, a Ministry under the head of O. Panneerselvam Swami was sworn in on 6.12.2016. but thereafter due to certain circumstances related to persons who are not a party in this case, the panneerselvam swami government also resigned from the post. After which attempts were made to make Mrs. V.K. Sasikala as the chief minister but those also failed, and thereafter Mr. Edappadi K. Palaniswami sworn in as the leader of AIADMK legislative party at a meeting held on 14.02.2017.
Facts of the issue
When the meeting was held, to vote in the favour of the candidate to become Chief Minister, every party member has to vote in the favour of the whip which is mandatory to prove the floor test in the assembly and win the majority. In this case the 11 respondent MLAs did not vote in the favour of it, Respondent contended that they were not present and were also not issued any notice about the said meeting so they did not vote in the favour of the resolution to appoint Mr. Palaniswami as the Chief Minister. The respondent also contended that they were the original AIADMK party and even when it was alleged that each MLA was issued the whip independently, respondents in this case did not receive any whip from Mr. S Rajendran. When the respondent did not voted in the favour of whip, a plea notice to disqualify them was issued to the speaker by the members to which the speaker did not take any action. Hence the present petition was filed.
Legal provisions involved
The present case comes under the purview of Anti Defection Law also known as the tenth schedule of the constitution which was introduced by the parliament in 2003 by the ninety first amendment. This was introduced to address the problem caused by the instability in the decisions taken by the members of the parliament. Eg. Shifting allegiance from the party they supported at the time of election, to not supporting their fellow party members at the time of taking any decision.
The present case is filed under Article 32 for violating Article 14,19,164(1B) and 191 and tenth schedule of the constitution. Article 14 of the Constitution of India provides for equality before the law or equal protection of the laws within the territory of India. It states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Article 19(1)(a) of the Constitution of India guarantees to all its citizens the right to freedom of speech and expression. The law states that, “all citizens shall have the right to freedom of speech and expression”.
Article 164(1B) of the Indian Constitution states that a member of Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.”
Article 191 mentions that for the purpose of Disqualifications for membership “A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.”
It is a constitutional duty of the speaker to take action as soon as possible in such matter. The delay of 3 years in taking a decision even after receiving an order from the hon’ble court raises question on the system. Legislature of a state is given responsibility to make laws for the well being of its citizen. But if there will be a partiality on the part of the members or the speaker itself, then the people will not be able to trust the system as their will be no fair decisions rendered.
As it is clearly given in the constitution itself that such acts of members will disqualify them for a certain period and speaker will look into the matter and take decision, so a delay for 1 or 2 days or a week would still have been justified but a delay of 3 years is totally not justifiable and speaker must give a valid reason for such delay, and if he fails to do so then court must take an action on it.
The issue raised when 11 MLAs did not gave votes in favour of the whip. They violated the law formulated under the tenth schedule of the Indian Constitution. So a plea to disqualify them was introduced before the speaker to which the speaker did not took any action. So the present petition was filed. Although the respondents contended that they were not informed about the meeting that took place or notice of the whip was not issues to them so they did not vote in the favour of the whip. But still as the dispute raised in the legislature, the speaker must have performed his duty and should have given its decision on the plea. Now after this case, some guidelines must be issued by the court to ask the speaker and the members to perform their constitutional duty seriously.
Author: Pragya Srivastava from UPES, Dehradun.
Editor: Silky Mittal, Junior Editor, Lexlife India.