Full Judgment Text
1
N THE UPREME OURT OF NDIA
I S C I
O RIGINAL C IVIL J URISDICTION
W RIT P ETITION (C IVIL ) N O . 493/2022
ETITIONER S
SUBHASH DESAI …P ( )
VERSUS
PRINCIPAL SECRETARY,
GOVERNOR OF MAHARASHTRA & ORS. …R ESPONDENT ( S )
With
W.P.(C) No.469/2022
W.P.(C) No.468/2022
W.P.(C) No.470/2022
W.P.(C) No.479/2022
W.P.(C) No.538/2022
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
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2022.08.23
20:33:44 IST
Reason:
question raised in these batch of matters relating to the power of
the Speaker/Deputy Speaker to initiate disqualification
2
proceedings, when proceedings for removal from the said office has
been initiated against them. In
Nabam Rebia & Bamang Felix v.
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 ( ), stands
Nebam Rebia supra
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
3
Tenth Schedule of the Constitution, as held by this
Court in ( supra )?
Nebam Rebia
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?
4
h.
Are intraparty 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.
...........................CJI.
(N.V. RAMANA)
...........................J.
(KRISHNA MURARI)
...........................J.
(HIMA KOHLI)
NEW DELHI;
AUGUST 23, 2022.