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IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, ABDUL QUDDHOSE, JJ.
R. Sakkrapani, Whip, Dravida Munnetra Kazhagam, Tamil Nadu Legislative Assembly, Chennai & Others - Petitioner
Versus
The Secretary, Tamil Nadu Legislative Assemblym Chennai & Others - Respondent
W.P. Nos. 26017, 27853 to 27856 of 2017
Decided On : 27-04-2018
Constitution of India, 1950 – Articles 226, 227, 10th schedule – Disqualification on Ground of Voting Contrary – Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 – Writ petition has been filed seeking disqualification of 11 MLAs, being respondent Nos.3 to 13, of the All India Anna Dravida Munnetra Kazhagam Party under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, for voting contrary to the direction issued by the Chief Government Whip on 18.02.2017 – Held, There is no decision – May be, there is inaction. None of the authorities cited on behalf of the petitioners propound the proposition that the High Court can in exercise of power under Article 226 of the Constitution of India to take over the duty of the Speaker and disqualify MLAs without a hearing as envisaged under the Tenth Schedule of the Constitution. – Court is constrained to hold that even assuming that this Court might embark upon the exercise of taking over the functions of the Speaker in exceptional circumstances and even assuming that those circumstances exist, by seeking the relief of an order of this Court disqualifying the respondent MLAs, the petitioners are inviting this Court to do indirectly what it has been restrained by the Supreme Court from doing directly – In view of the fact that the question of issuance of mandamus on the Speaker is pending consideration of the Supreme Court, it is difficult to conceive how this Court can disqualify the concerned MLAs and render the proceedings in the Supreme Court infructuous. – Passing of such orders would only not amount to judicial overreach, it would also amount to gross breach of judicial discipline, if not contempt. – Writ Petitions Dismissed
INDIRA BANERJEE, J.
1. The writ petition being W.P.No.26017 of 2017 has been filed seeking disqualification of 11 MLAs, being respondent Nos.3 to 13, of the All India Anna Dravida Munnetra Kazhagam Party under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, for voting contrary to the direction issued by the Chief Government Whip on 18.02.2017.
2. In W.P.Nos.27853, 27855 and 27856 of 2017, the petitioners sought issuance of writ of mandamus directing the first respondent to consider and pass orders forthwith on the petition dated 20.03.2017 filed by the petitioners herein seeking to disqualify respondent Nos.2 and 3 in each of these petitions, under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Rule 6 of the Members of the Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, hereinafter referred to as “the Disqualification Rules”.
3. In the writ petition, being W.P.No.27854 of 2017, the petitioner prayed for issuance of a writ of mandamus directing the first respondent to consider and pass orders forthwith on the petition dated 20.03.2017 filed by him seeking disqualification of respondent No.2 in this petition under Paragraph 2(1)(b) of the Tenth Schedule of the Constitution of India read with Rule 6 of the Disqualification Rules.
4. On 05.12.2016, the former Chief Minister of Tamil Nadu, Ms.J.Jayalalithaa died, after which, Mr.O.Panneerselvam of All India Anna Dravida Munnetra Kazhagam (AIADMK) was elected as Chief Minister of Tamil Nadu. On 05.02.2017, Mr.Panneerselvam resigned from the post of Chief Minister. Thereafter on 16.2.2017, Mr.Edappadi K.Palaniswami was sworn in as Chief Minister. On the same day, i.e., 16.2.2017, the then Governor of Tamil Nadu directed Mr.Palaniswami to prove majority support in his favour by way of floor test.
5. According to the petitioner, a whip was issued under the AIADMK party's seal directing the MLAs of AIADMK party to vote in favour of Mr.Palaniswami. On 18.2.2017, the Tamil Nadu Legislative Assembly was convened for the purpose of floor test. Mr.Palaniswami, the Chief Minister and the Leader of the Legislative Party, moved the motion “that this house expresses its confidence on the Cabinet headed by the Chief Minister Mr.Palaniswami”. The motion was put to vote and carried by 122 MLAs of the AIADMK who voted in favour of the motion.
6. It is a matter of record that 11 MLAs, namely (i) Mr.O.Paneerselvam; (ii) Mr.A.Arukutty; (iii) Mr.Shanmuganathan; (iv) Mr.Manickam; (v) Mr.Manoharan; (vi) Mr.K.Pandiarajan; (vii) Mr.Manoranjitham; (viii) Mr.Saravanan; (ix) Mr.Semmalai; (x) Mr.Chinnaraj; and (xi) Mr.R.Nataraj, belonging to AIADMK party, hereinafter referred to as “the respondent MLAs”, voted against the motion. This is also not disputed.
7. On 20.3.2017, some MLAs of AIADMK presented petitions to the Speaker under the Members of the Tamil Nadu Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 seeking disqualification of the respondent MLAs for voting against the confidence motion, contrary to the direction issued by the AIADMK Whip.
8. In the meanwhile, on 14.3.2017, three members of the AIADMK filed a petition, being Dispute No.2 of 2017, before the Election Commission of India under Paragraph15 of the Elections Symbols (Reservation and Allotment) Order, 1968, hereinafter referred to as “the Symbols Order”.
9. It is the case of the petitioner that no action has, till date, been taken by the Speaker on the said petitions for disqualification of the respondent MLAs. No notice has even been issued.
10. On 25.9.2017, the writ petition, being W.P.No.26017 of 2017., was filed seeking a writ of mandamus directing the second respondent, being the Speaker of the Tamil Nadu Legislative Assembly, to disqualify the respondent MLAs, who had voted contrary to the direction issued by the
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