Back
1992 Supreme(Gau) 17
GAUHATI HIGH COURT
U.L.Bhat, J.M.Srivastava, JJ.
Zachilhu -Appellant
Versus
Thenucho, Speaker, Nagaland Legislative Assembly, Kohima, Nagaland -Respondent
Civil Rule No. 2421 of 1990
Decided On : 27-01-1992
N.M.Lahiri, V.Hansaria, S.Sorabjee, S.Mitra, S.Hegde, S.C.Gupta, N.N.Saikia, N.Dutta, G.N.Sahewalla, E.Maqbool, A.Dutta, A.B.Rohatgi, R.Gogoi
The Speaker's decision under the Tenth Schedule is subject to judicial review, but only on limited grounds such as violation of constitutional mandates, mala fides, non-compliance with rules of natural justice, and perversity.
Headnote:
CONSTITUTIONAL LAW - TENTH SCHEDULE - DISQUALIFICATION OF MEMBERS - JURISDICTION OF SPEAKER - JUDICIAL REVIEW - MALAFIDES - VIOLATION OF RULES OF NATURAL JUSTICE - INTERPRETATION OF PROVISIONS.
Fact of the Case:
Five members of the Nagaland Legislative Assembly filed a writ petition challenging the order of the Speaker disqualifying them under the Tenth Schedule of the Constitution of India for alleged defection.
Finding of the Court:
The Supreme Court held that the Speaker's decision is subject to judicial review, but only on limited grounds such as violation of constitutional mandates, mala fides, non-compliance with rules of natural justice, and perversity. The Court found that the Speaker's decision in this case was not perverse, mala fide, or in violation of the rules of natural justice.
Issues: 1. Whether the Speaker's decision disqualifying the members was perverse, mala fide, or in violation of the rules of natural justice. 2. Whether the Speaker had jurisdiction to decide the question of disqualification.
Ratio Decidendi: 1. The Speaker's decision was not perverse as there was evidence to support the finding that the members had voluntarily given up their membership of their political party. 2. The Speaker had jurisdiction to decide the question of disqualification as the Tenth Schedule empowers the Speaker to adjudicate on such matters.
Final Decision: The Court dismissed the writ petition and upheld the Speaker's order disqualifying the members.
Five members of the Nagaland Legislative Assembly have filed writ petition, Civil Rule No. 2421 of 1990 under Article 226 of Constitution of India seeking a writ of Mandamus directing first respondent, Speaker, Nagaland Legislative Assembly, second respondent, Secretary, Nagaland Legislative Assembly, and third respondent, State of Nagaland to cancel, withdraw or forbear from giving effect to order dated 15.12.90 passed by the first respondent, a copy of which is appended in Annexure 6, whereby he declared that the petitioners have become subject to disqualification under the Tenth Schedule of the Constitution of India.
2. The petitioners on 21.12.90 filed Transfer Petition (Civil) No. 40 of 1991 and the Supreme Court stayed the proceedings in this Court until further orders. Constitutionality of the ouster of jurisdiction of Courts to review order passed by Speaker under Tenth Schedule, availability of judicial review and other questions, arising in this and other similar petitions pending before several High Courts were considered and the Supreme Court through a Constitutional Bench laid down the law by order dated 12.11.91. The Supreme Court also observed that the factual controversies raised in the writ petition have to be decided by the High Court applying the law so laid down and remitted the writ petition to this High Court for disposal.
3. This Court by order dated 9.12.91 stayed the order of the first respondent disqualifying the petitioners as also another order dated 16.12.90 disqualifying ten other Members of the Legislative Assembly. This order was challenged before the Supreme Court in Petition for Special Leave to Appeal (Civil) Nos. 18928 of 1991 and connected SLPs. The Supreme Court has adjourned the SLPs to 17.1.92 in the hope that the writ petitions pending in the High Court may be disposed of at the earliest and directing the parties to appear before the High Court on 17.12.91 to enable the Court to fix a date of hearing. On that day the date of hearing was fixed and the case has since been heard.
Factual Backdrop
4. In the elections held in 1989 to the 60 Member Nagaland Legislative Assembly, Congress (I) Party secured 36 seats and Nagaland People's Council (NPC) secured 24 seats and Shri S.C. Jamir, the Leader of the Congress (I) Legislature Party formed the Council of Ministers. In May, 1990 on account of certain developments in the Congress (I) Legislature Party 12 MLAs broke away from the party and formed a Regional Party and two of them were expelled. The Congress (I) Ministry was dismissed on 4.5.90. The then Speaker disqualified 10 among the 12 MLAs and declared the other two to be unattached. This order is under challenge in Civil Rule No. 1778 of 1990. Thus, the effective strength of the House became 50. Shri K.L. Chishi, leader of the`NPC Legislature Party with the support of 24 MLAs of NPC and two unattached MLAs formed a new Ministry on 15.5.90. On 13.6.90, 17 among the MLAs of the NPC withdrew support to Shri K.L. Chishi who resigned and with their support and support of Congress (I) Party, Shri Vamuzo (a non -MLA) of NPC who was elected leader of Joint Legislative Party formed a new Ministry. He had the support of 24 Congress (I) Members and 17 members of the NPC group. On 19.7.90 the present Speaker first respondent) was elected Speaker. On 9.8.90 the first respondent passed an order revoking the earlier order dated 14.5.90 disqualifying 10 Congress (I) MLAs and declaring two Congress (I) MLAs unattached. The order of disqualification as well as the order of revocation are challenged in other writ petitions. With this order, the strength of the House was restored to 60. This was followed by a formal split in the NPC. On 9.11.90 Sri Vamuzo was elected MLA. 3& On 16.11.90, Shri Chishi was expelled from NPC and was declared unattached. The Governor on 22.11.90 summoned the Legislative Assembly to meet on 18.12.90, On 2.12.90 the Congress (I) Party with 24 MLAs withdrew support to S
