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2022 Supreme(SC) 744
SUPREME COURT OF INDIA
N.V. RAMANA, CJI., KRISHNA MURARI, HIMA KOHLI, JJ.
Subhash Desai – Petitioner
Versus
Principal Secretary, Governor of Maharashtra and Others – Respondents
Writ Petition (Civil) Nos. 468, 469, 470, 479, 493, 538 of 2022
Decided On : 23-08-2022
For the Petitioner(s): Mr. Kapil Sibal, Sr. Adv. Mr. Devadatt Kamat, Sr. Adv. Mr. Rajesh Inamdar, Adv. Mr. Amit Anand Tiwari, Adv. Mr. Anish R. Shah, AOR Mr. Javedur Rehman, Adv. Mr. Rohit Sharma, Adv. Mr. Harsh Pandey, Adv. Mr. Revanta Solanki, Adv. Mr. Sunny Jain, Adv. Mr. Nishanth Patil, Adv. Mr. Nizam Pasha, Adv. Ms. Devyani Gupta, Adv Ms. Tanvi Anand, Adv. Mr. Gaurav Belsare, Adv. Mr. Javedur Rahman, AOR Mr. Neeraj Kishan Kaul, Sr.Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Abhikalp Pratap Singh, AOR Ms. Gunjan Mangla, Adv. Ms. Aagam Kaur, Adv. Ms. Shreya Saxena, Adv. Ms. Aarzoo Aneja, Adv. Mr. Dhruv Sharma, Adv. Ms. Ira Mahajan, Adv. Ms. Pracheta K., Adv. Mr. Aditya S., Adv. Mr. Neeraj Kishan Kaul, Sr. Adv. Mr. Siddharth Bhatnagar, Sr. Adv. Mr. Chirag Shah, Adv. Mr. Utsav Trivedi, Adv. Mr. Nihar Thakeray, Adv. Mr. Abhinay, AOR Ms. Manini Roy, Adv. Mr. Himanshu Sachdeva, Adv. Ms. Shivani Bhushan, Adv. Mr. Pooran Chand Roy, Adv. Ms. Malvika Trivedi, Sr. Adv. Ms. Siya, Adv. Mr. Nadeem Afroz, Adv. Mr. Aditya S., Adv. Ms. Pracheta Kar, Adv.
For the Respondent(s): Mr. Pai Amit, AOR Ms. Pankhuri Bhardwaj, Adv. Mr. Rohit R. Saboo, Adv. Mr. Abhiyudaya Vats, Adv. Ms. Astha Prasad, AOR Mr. Abhikalp Pratap Singh, AOR Mr. Rahul Chitnis, Adv. Mr. Sachin Patil, AOR Mr. Aaditya A. Pande, Adv. Mr. Geo Joseph, Adv. Ms. Shwetal Shepal, Adv. Mr. Durgesh Gupta, Adv. Mr. Abhinay, AOR Mr. Javedur Rahman, AOR Mr. Ankit Yadav, AOR Mr. Ratnesh Sharma, Adv. Mr. Shreyas Gacche, Adv. Mr. Rajsaheb Patil, Adv. Mr. Kishor Lambat, Adv. Mr. T. R. B. Sivakumar, AOR Mr. Arvind P. Datar, Sr. Adv. Mr. Amit Sharma, Adv. Mr. Dipesh Sinha, Adv. Ms. Pallavi Barua, Adv. Mr. Ashok Kumar Gupta II, AOR Mr. Mahendra Vishwanath K., Adv. Mr. Vijay Pal, Adv. Mr. Rakesh Kumar, Adv. Mr. Pramod Kr. Singh, Adv. Mr. Kundal Lal, Adv. Mr. Arvind Kumar, Adv. Kajal Singh, Adv. Mr. Kailash Prashad Pandey, AOR
IMPORTANT POINT
Power of Speaker/Deputy Speaker to initiate disqualification proceedings – Matter referred to Constitution Bench for requisite gap filling exercise to be conducted.
Headnote:
Constitution of India – Schedule X read with Articles 32 and 226 – Power of Speaker/Deputy Speaker to initiate disqualification proceedings – One particular question raised in these batch of matters relating to power of Speaker/Deputy Speaker to initiate disqualification proceedings, when proceedings for removal from said office has been initiated against them – These questions need reference to Constitution bench for requisite gap filling exercise to be conducted:-
a. Whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution?
b. Whether petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by High Courts or Supreme Court, as the case may be?
c. Can a Court hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by Speaker?
d. What is status of proceedings in the House during pendency of disqualification petitions against members?
e. If decision of a Speaker that a member has incurred disqualification under Tenth Schedule relates back to date of action complained of, then what is status of proceedings that took place during pendency of a disqualification petition?
f. What is the impact of removal of Paragraph 3 of Tenth Schedule?
g. What is scope of power of Speaker to determine the Whip and leader of house legislature party? What is interplay of same with respect to the provisions of the Tenth Schedule?
h. Are intra-party decisions amenable to judicial review? What is the scope of the same?
i. What is the extent of discretion and power of Governor to invite a person to form the Government, and whether the same is amenable to judicial review?
j. What is the scope of powers of Election Commission of India with respect to determination of split within a party?
Matter referred to Constitution Bench. (Paras 3, 4 and 5)
Facts of the case:
Present batch of petitions raise important constitutional questions relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and Governor and power of judicial review thereof.
Findings of Court:
These matters merit reference under Article 145(3) of Constitution to a Five Judges Bench as they raise other substantial questions of law as to the interpretation of the Constitution.
Result – Matter referred to Constitution Bench.
ORDER :
1. We have heard learned senior counsels appearing on both sides and perusing the material available on record.
2. This Court is of opinion that the present batch of petitions raise important constitutional questions relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof.
3. At the outset, it may be necessary to highlight one particular question raised in these batch of matters relating to the power of the Speaker/Deputy Speaker to initiate disqualification proceedings, when proceedings for removal from the said office has been initiated against them. In Nabam Rebia and Bamang Felix vs. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, a Constitution bench of this Court held as follows:
“193........We are, therefore, of the view that constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge. This would also, allow the two provisions [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.”
4. We may prima-facie observe that the proposition of law laid down by the Constitution bench in Nebam Rebia (supra), stands on contradictory reasoning, which requires gap filling to uphold the constitutional morality. As such, this question needs a reference to a Constitution bench for the requisite gap filling exercise to be conducted.
5. Further, these matters merit reference under Article 145(3) of the Constitution to a 5Judge bench as they raise other substantial questions of law as to the interpretation of the Constitution, which are:
(a) Whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this Court in Nebam Rebia (supra)?
(b) Whether a petition under Article 226 or Article 32 lies, inviting a decision on a disqualification petition by the High Courts or the Supreme Court, as the case may be?
(c) Can a Court hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by the Speaker?
(d) What is the status of proceedings in the House during the pendency of disqualification petitions against the members?
(e) If the decision of a Speaker that a member has incurred disqualification under the Tenth Schedule relates back to the date of the action complained of, then what is the status of proceedings that took place during the pendency of a disqualification petition?
(f) What is the impact of the removal of Paragraph-3 of the Tenth Schedule?
(g) What is the scope of the power of the Speaker to determine the Whip and the leader of the house legislature party? What is the interplay of the same with respect to the provisions of the Tenth Schedule?
(h) Are intra-party decisions amenable to judicial review? What is the scope of the same?
(i) What is the extent of discretion and power of the Governor to invite a person to form the Government and whether the same is amenable to judicial review?
(j) What is the scope of the powers of the Election Commission of India with respect to determination of a split within a party?
6. The papers may be placed before the Hon’ble the Chief Justice for appropriate orders, immediately.
