The much awaited decision in the disqualification of 18 MLAs is out. The 18 MLAs are out, not in. But out, only until this split verdict of Thursday, 14 June, in P. Vetrivel case – all of 327 pages - shall be decided by a third Judge, to be nominated within a day or two. Chief Justice Ms. Indira Banerjee has chosen to uphold the orders dated September 18, 2017 of the Tamil Nadu Speaker P. Dhanapal, disqualifying 18 MLAs, belonging to TTV Dhinakaran group. Her companion judge Mr. Justice M. Sundar has dissented to set aside the orders of the Speaker as being “ultra vires and unconstitutional”.
Typically, even recently, we had a similar spectacle in the matter of Star India’s plea against TRAI’s regulations of March 2017, where the same learned judges delivered a split verdict and it had to be referred to a third Judge Mr. Justice M.M. Sundresh, who chose to go with the learned Chief Justice. Likewise, in this matter also, there would be a reference to a third Judge. For now, status quo shall continue.
There have now been three decisions from the Chief Justice Ms. Indira Banerjee led bench of the Madras High Court, in relation to the power of the Speaker of a Legislative Assembly. In the first, the decision of the Speaker to question the nomination of three MLAs, at the instance of the Lt. Governor of Puducherry, was set aside on March 22. That was in the context of the provisions of the Constitution, relating to a Union territory, as distinct from the Assembly of a State.
In the second- in R. Sakkarapani- dated April 27, the judges declined to interfere in the discretion of the Speaker of the TN Assembly to ‘not act’ on the application of some MLAs to disqualify 11 MLAs belonging to OPS group, despite the fact that the said 11 MLAs had voted against the confidence motion moved by EPS led Ministry, on the ground that the Court cannot usurp the role of the Speaker.
In the third, dated June 14, we have a split verdict. Politically, the EPS led ministry may have got a huge breather, with no imminent challenge to its majority. It may be quite a while before a third Judge is nominated, which would be by the second in command by Mr. Justice Huluvadi G. Ramesh, since the Chief Justice is party to the judgment under reference. Counsel for each party may have to re-argue the entire case, and their availability and appearance, with Supreme Court on vacation, could necessarily lead to delay in disposal. For all practical purposes, the present pause or interregnum could be construed as an order of status quo, until the third Judge delivers his clinching verdict.
Legally, the issue relating to disqualification of the 18 MLAs has its parallels with the B.S. Yeddyurappa case (2011 – SC) (BSY). It too was a case of disgruntled MLAs issuing a letter to the Governor “expressing no confidence in BSY’s leadership but not in his Government”. This act was construed by the Speaker of the Karnataka Assembly to constitute “defection under Para 2 (1) (a) of the Tenth Schedule of the Constitu-tion of India”, and the said MLAs were disqualified. On a challenge, there was a similar split verdict before the Karnataka High Court and which litigation reached the Supreme Court, after the third Judge agreed with the Chief Justice to uphold the orders of the Speaker.
In BSY’s case, it was argued that the scope of para 2 (1) (a) was complied with, once the member chose to withdraw his support to the Chief Minister, and he was not required to “defect” from the party, by an inference to disqualify him for his conduct. (Argument of Soli Sorabjee in para 100 of BSY Judgment relying on Ravi S. Naik, Jagjit Singh and Rajendra Singh Rana’s cases).
Interestingly, the Supreme Court, in BSY’s judgment, did not answer this specific submission. Instead, it chose to interfere on the ground that the order of the Speaker disqualifying the MLAs “did not meet the twin tests of natural justice and fair play,” holding that “Speaker was hurried and intended to protect the Government facing the confidence vote”.
In fact, if one carefully read the separate judgment of Justice N. Sankar, of the Karnataka High court, which went to Supreme Court, one can easily see that a similar dispute as in the case of these 18 MLAs was held in their favour, by the learned judge. This, on the ground that the disqualification under para 2 (1) (a) would come into play only upon the member “defecting” to another party and it cannot be a matter of inference. The distinction between para 2 (1) (a) - a case of defection and para 2 (1) (b) a case of a member voting against the whip or choosing to abstain etc., was also pointed out. Legally, however, the specific reasons and judgment of Justice N. Sankar, which could have been helpful to the 18 MLAs, cannot be said to be the law laid down in BSY’s case.
In the Vetrivel case, the High Court was dealing with ‘virgin territory’, hitherto unexplored, by the top Court. While the Chief Justice has chosen to take the safe route, her companion judge has made bold like Justice N. Sankar to conclude that there was no “defection” in the eye of law, since the 18 MLAs had only expressed their “no confidence in the leadership of EPS and not in his Ministry”.
In effect, the split verdict has come in a territory, which remains undecided by the Supreme Court. The issue may ultimately have to be settled by the apex court alone. The BSY’s verdict does not contain all the answers relating to the 18 MLA’s disqualification. While the Chief Justice has chosen the placid route recognising the role of a constitutional authority in the Speaker, the younger judge has made bold to pick up the threads from the reasons given by Justice N. Sankar, to disqualify the disqualifications.
Politicians may have a lot to say on this decision. Already, tongues are wagging that the Chief Justice has been inconsistent in her treatment of the orders of the Speaker of an Assembly, ignoring the subtleties and legal nuances, which may be beyond the ken of laymen. This constitutional impasse may even be for the political good in the State. One should not forget that there were reports in the well-informed news weekly Thuklaq that 12 of the 18 MLAs were ready to shift loyalties.
At the end of the day, the EPS government has survived without any immediate challenge, while the legal fraternity engaged in the litigation, may be smiling all the way to the bank, for the rehearing they have been offered. Truth to tell, even the verdict of third Judge may yet not solve the imbroglio, for the Supreme Court yet again holds the key as to the correctness of the orders of the TN Speaker vis-a-vis the judgment in BSY’s case of 2011 vintage. Back to the old adage that the more things change, the more they remain the same.
(The writer is a practicing advocate in Madras High Court)
