SC again Raps Maharashtra Assembly Speaker for Delaying Disqualification Petitions

Manas Dasgupta

NEW DELHI, Oct 13: For the second time in a month, the Supreme Court on Friday rapped the Maharashtra state Assembly speaker Rahul Narwekar for dragging on without even a hearing the applications for disqualifications from membership of both the Shinde and Thackeray factions of Shiv Sena following the split in the party last year.

The apex court slammed the speaker for reducing the anti-defection proceedings against the chief minister Eknath Shinde and his supporters to a “charade” allowing a government to continue in the office unhindered despite having the possibility of it may be declared an illegal government. Asking the speaker for the second time to decide a time-schedule to complete the hearings on the issue, the apex court said he could not “merrily” defer hearings and has to decide before the next elections.

Chief Justice DY Chandrachud, heading a three-judge Bench, expressed the anguish that the speaker had disregarded the apex court’s order on September 18 to prepare a time-schedule to complete the disqualification proceedings under the Tenth Schedule of the Constitution against the Shinde camp. The Bench had at the time given Mr. Narwekar a week to prepare the timeline and file it before the apex court.

On Friday the CJI said “since nothing happened in the disqualification proceedings (against the Shinde camp) all these months, we will be constrained to say that he must take a decision in two months.” The court even considered ordering day-to-day hearings before the Speaker.

“Somebody has to advice the Speaker that he cannot defeat the orders of the Supreme Court like this… He is acting as an election tribunal when he is hearing disqualification petitions under the Tenth Schedule. He is amenable to the jurisdiction of this court…. What kind of time schedule has he prescribed so far? Nothing has happened in the proceedings… Whenever the matter is scheduled before the court, he (Speaker) holds some kind of a hearing… Tenth Schedule proceedings before the Speaker acting as an election tribunal should not be reduced to a charade,” CJI Chandrachud addressed Solicitor General Tushar Mehta, appearing for the Speaker.

The Chief Justice asked Mr Mehta and the Advocate General of Maharashtra to “advice” the Speaker. “Sit down with him. Advice him on how to proceed. It is obvious he needs some assistance,” Chief Justice said.

Senior advocates Kapil Sibal and AM Singhvi, for petitioner and Uddhav Thackeray loyalist Sunil Prabhu, said the court had to decide the responsibilities of the Speaker while acting as an election tribunal under the Tenth Schedule. Mr Mehta in turn blamed the Uddhav Thackeray camp for rushing to the Supreme Court like “school children complaining to the teacher”.

The court categorically said it would not allow the Speaker to drag on the disqualification proceedings till the next elections and make the Tenth Schedule proceedings against the Shinde camp infructuous. “We expected the Speaker to do his job. If he is not doing it, we will hold him accountable as an election tribunal… you must apprise the Speaker. We are giving you an opportunity until October 16. If we do not find a proper time schedule set out, we will issue a peremptory order fixing a time period (for the disqualification proceedings),” the Chief Justice told Mr Mehta, fixing the next hearing on October 17.

On May 11, a five-judge Bench had directed the Maharashtra Speaker, in his capacity as tribunal under the Tenth Schedule (anti-defection law) of the Constitution, to hear and decide the disqualification petitions within a “reasonable time.” A total of 56 MLAs are facing disqualification under the Tenth Schedule. There are 34 disqualification petitions pending, waiting for Speaker Narwekar to hear and decide.

In his petition, Mr Prabhu had said the Supreme Court, in its May 11 judgment on the Thackeray-Shinde battle for control over Shiv Sena, had trusted Mr Narwekar to impartially hear and decide the anti-defection proceedings. The Supreme Court, in its January 2020 judgment in the Keisham Meghachandra Singh case, had held three months as a “reasonable time” for Speakers to decide disqualification petitions under the Tenth Schedule.

The court was hearing applications filed by the Shiv Sena (UBT) group against alleged delay in deciding petitions seeking disqualification of MLAs of the Eknath Shinde camp. Appearing for the petitioners, senior advocates Kapil Sibal and A M Singhvi pointed out that speaker was dragging on the matter and at this rate no decision would be taken on the disqualification and legitimacy of the Shinde government till the next Assembly elections due next year reducing the entire process to a farce.

As per the Speaker’s time schedule, “cross examination shall commence on November 23 and further date shall be given as per date convenient to parties and their counsel. As far as possible, cross examination shall be allowed twice a week. After completion of two weeks from recording of evidence, it shall be listed for final hearing.” Sibal told the bench also comprising Justices J B Pardiwala and Manoj Misra that it would have to lay down what is the role of the Speaker acting as a tribunal under the 10th schedule to decide disqualification petitions.

Pointing out that the Assembly elections are due next year, he said what was happening was a farce. The senior counsel pointed out that the Supreme Court had laid down previously that such proceedings shall involve only the summary procedure. Mehta, however, claimed that the speaker was upholding principles of natural justice by stating that it is necessary to give opportunity to parties to lead evidence in the interest of justice and to avoid any miscarriage of justice.

He also asked the court whether it would give directions to the speaker how to deal with the matter to which the bench said, “That’s not the point. We are not going to say how he should decide but he must give the impression that he has taken up the matter seriously. All this time since June, what has happened in this matter, nothing, no action. And when the matter is coming up before this court, some hearing is taking place. You should not make it into a charade. You have to have proper hearing before the Speaker. He must hear it day to day and complete the hearing. He can’t say I will hear twice a week and then after November I will decide when to have the final hearing,” said the CJI.

As Mehta raised objections to suggestions about asking the Speaker to do day to day hearings, the CJI said, “He is an election tribunal exercising his functions as a speaker in the House. A tribunal which is amenable to the jurisdiction of this court.” The Solicitor General insisted that nevertheless, the Speaker is a constitutional functionary and added, “Your Lordships would not do this to other tribunals, that give us a day to day account of what you do or you hear day to day.”

The CJI said, “We issued notice of this on July 14. Thereafter we passed an order on September 18 expecting that the Speaker will set down a reasonable time schedule for completing the hearings. Now, if we find that there is no such effort on the part of the Speaker, we are constrained to say that he must take a decision within a period of two months because you know six months have elapsed. Some measure of seriousness has to be imparted to the tribunal under the 10th schedule. Nobody is telling you how to decide. That’s his discretion. What is happening is this — that these hearings before the tribunal under the 10th schedule, I am not making a generalised statement, they should not be reduced into a charade. These are very serious matters. We have to engender a sense of confidence in the process.”

The court also asked “why are you averse to a decision by the Speaker? In fact, you have filed applications for disqualification also. If you are confident of your applications, you should be keen to go on with your applications also.” “But it should not be that I should argue without evidence as the prayer is seeking,” Rohatgi submitted.

As he raised questions on whether a writ of the court can lie over the Speaker, the CJI said, “The writ of this court is very clear. We pay deference to every co-equal branch of the government. But the writ of this court has to run where we find that there is a decision in breach of constitutional prescriptions. Or if there is a failure to take a decision as is mandated by the Constitution.”

To Rohatgi’s argument that the proceedings before the Speaker in the matter enjoy immunity under Article 212 of the constitution, the CJI said, “These are not proceedings which take place on the floor of the House and hence do not enjoy the immunity.” He said, “We are not even saying don’t let in evidence. They may ask for the moon, we may not grant it. So what we suggest is you and the Advocate General of Maharashtra, please sit down with the Speaker, appraise him now he has to proceed; he requires little bit of assistance is obvious. I am concerned about maintaining the dignity of our court. If our orders are not implemented, it’s a matter of concern for us. We are duty bound to uphold the dignity of our court.” Mehta assured the court that he would take instructions on fixing the time schedule as suggested by the court.

Meanwhile, in Mumbai, the Shiv Sena faction led by Eknath Shinde requested the speaker for separate hearing hearings on disqualification petitions filed against them, but the Uddhav Thackeray-led Sena group argued that all petitions shared the same ground and could be heard together.

Though the hearing was initiated on September 25, no official hearing took place on that day, and only procedural matters were addressed. The Speaker decided to conduct the official hearing on October 13 instead. However, he had advanced the hearing to October 12 as he had to attend the G-20 Parliamentary Speakers’ Summit in Delhi on Friday.

The first actual hearing of disqualification pleas against Mr. Shinde and 15 other MLAs was held at Vidhan Bhavan on Thursday. “Every person who is a party to the disqualification petitions has something to say about it. Thus, we demanded separate hearings of the petitions instead of clubbing them all together,” said senior counsel Anil Sakhare, who is representing the Shinde faction. However, an Uddhav Balasaheb Thackeray (UBT) Sena Rajya Sabha member expressed his faction’s opposition to the demand made by Shinde’s group for independent hearings, and said conducting the hearing accordingly still remains the same as the cause mentioned in every petition is the same.