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2016 DIGILAW 138 (UTT)

Amrita Rawat v. Speaker Legislative Assembly

2016-03-25

SUDHANSHU DHULIA

body2016
JUDGMENT : Sudhanshu Dhulia, J. 1. These writ petitions are being heard together and decided by a common order, as the issue is the same in the two petitions. For the sake of convenience, however, the facts referred here in this order have been taken from WPMS No. 792 of 2016. 2. The petitioners are the Members of the Uttarakhand Legislative Assembly (MLAs) and belong to the Indian National Congress party. They have primarily challenged the show cause notice dated 19.03.2016 given by the Speaker of the House (respondent No. 1), which is annexure No. 1 to the writ petition. The notice seeks an explanation from the petitioners as to why they should not be disqualified as Members of the Assembly and the petitioners have to give their reply to this show cause notice by 05:00 p.m. on 26.03.2016. 3. The learned counsel for the petitioners would argue that the notice is given under paragraph 2(1)(a) of the 10th Schedule of the Constitution of India, which reads as under:- “2. Disqualification on ground of defection – (1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House – (a) if he has voluntarily given up his membership of such political party: or (b) …..” 4. In short the allegations are that the petitioners have voluntarily given up their membership of the political party, which is, the Indian National Congress, and hence, why should they not be disqualified from the membership of the House! Admittedly the Indian National Congress is the party in power in Uttarakhand and has its Government in the State. 5. The petitioners have filed this writ petition before this Court seeking following relief:- a. Writ order or direction in the nature of certiorari be issued quashing the notice dated 19.03.2016 annexed as Annexure 1. b. Writ order or direction requiring the Speaker to adjourn the proceedings in pursuance of notice dated 19.03.2016 for couple of days. c. Writ order or direction requiring the Speaker to permit Petitioners to have personal hearing alongwith their Lawyers in the matter and to cross-examine the witnesses as indicated above in the writ petition and their representations. b. Writ order or direction requiring the Speaker to adjourn the proceedings in pursuance of notice dated 19.03.2016 for couple of days. c. Writ order or direction requiring the Speaker to permit Petitioners to have personal hearing alongwith their Lawyers in the matter and to cross-examine the witnesses as indicated above in the writ petition and their representations. d. Writ order or direction directing the speaker to adjourn the matter to enable the Petitioners to consult their lawyers and to submit his reply in order to facilitate reasonable and fair hearing. e. Such further order or directions as the Hon’ble Court may deem fit and proper. 6. The show cause notice dated 19.03.2016, which is annexure 1 to the petition, alleges various acts of commissions and omissions at the hands of the petitioners, including their conduct inside, as well as outside the House, on 18.03.2016, when the Assembly was in Session. It is alleged that the petitioners raised slogans expressing their solidarity with the Opposition Party i.e. Bhartiya Janta Party (in short “BJP”), while expressing their anger on the arrest of Sri Ganesh Joshi a sitting MLA of BJP. It is also alleged that the same day, the petitioners, who are all Members of Indian National Congress, and have been elected on the symbol of Congress Party, went before His Excellency the Governor of Uttarakhand and gave a memorandum to the Governor, a memorandum signed along with the Members of the Opposition Party i.e. BJP, declaring their distrust against the Government and the Chief Minister! 7. The learned Senior Counsel for the petitioner – Mr. Dinesh Dwivedi would argue that none of the allegations contained in the show cause notice dated 19.03.2016, would constitute what can be termed as voluntarily giving up the membership of the party, as visualized in para 2(1)(a) of the 10th Schedule of the Constitution of India, and hence the Speaker does not even have a jurisdiction to give this show cause notice to the petitioners and consequently another argument has been advanced by the counsel, which is that by doing so i.e. by giving the show cause notice the Speaker has “usurped” powers which he does not have under the Constitution! Sri Dwivedi would hence urge that for this reason it is a fit case where the Court must interfere and immediately stay the proceedings scheduled for 26.03.2016 before the Speaker or at least postponed the date (i.e. 26.03.2016) by a few days, as that would give the petitioners some reasonable time to prepare their reply, considering what is at stake is the membership of the House of the petitioners, which is extremely valuable. In order to convince this court Sri Dwivedi referred extensively to a judgment of Hon’ble Apex Court, namely, Balchandra L. Jarkiholi & others vs. B.S. Yeddyurappa & others reported in 2011 (7) SCC 1 . 8. Learned Senior Counsel – Mr. Kapil Sibal, who is appearing for respondent No. 1 i.e. the Speaker, rebuts these argument and submits that this is not a stage where any of the aspects highlighted by the petitioners can be looked into by this Court. The writ petition to say the least is pre-mature, the learned counsel would submit. Even the argument as to whether Speaker has a jurisdiction or not in the matter, has to be examined by the Speaker himself, as Para 6 of the 10th Schedule of the Constitution of India gives this power to the Speaker alone. Para 6 of the 10th Schedule of the Constitution of India reads as under:- “TENTH SCHEDULE Provisions as to disqualification on ground of defection (1) ….. (2) ….. (3) ….. (4) ….. (5) ….. (6) Decision on questions as to disqualification on ground of defection – (1) If any question arises as to whether a member of a House has become subject to disqualification under the Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final: Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final. (2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.” 9. Mr. Kapil Sibal has in fact also made a preliminary objection, which must be noted. He submits that the petitioners have not come before this Court with clean hands, as though the petitioners have denied signing any memorandum along with Members of Assembly belonging to the Opposition i.e. BJP, the said memorandum dated 18.03.2016, which is on a letter head of Mr. Ajay Bhatt, (who is the Leader of the Opposition in the House), and addressed to His Excellency the Governor of Uttarakhand, was indeed signed by 35 Members of House, out of which 26 belongs to BJP i.e. the Opposition party and 9 by the Members of Indian National Congress (out of which 8 are presently petitioners before this Court in the above writ petitions). Mr. Sibal has placed before this Court a copy of this memorandum. This memorandum which is apparently signed by the above 35 Members of the Legislative Assembly, which says to the Governor that on 18.03.2016 when there were only 68 Members present, and the Finance Bill was to be passed, a request was made by the MLAs of BJP and 9 Members of Indian National Congress for division of votes, the Speaker did not accept this demand and instead got the finance bill passed by a voice vote. In reality the Finance Bill has never been passed and therefore a request was made in this joint memorandum that the Governor should exercise his Constitutional powers and dismiss the Government of Sri Harish Rawat – Chief Minister of Uttarakhand. The photo copy of the memorandum dated 18.03.2016 has been given to this Court, which bears the signature of 35 MLA and according to Senior Counsel – Mr. Sibal, of these 26 Members belong to BJP and the remaining 9 Members belong to Indian National Congress. The eight petitioners before this Court are amongst these 9 Members of the Indian National Congress. Mr. Sibal, of these 26 Members belong to BJP and the remaining 9 Members belong to Indian National Congress. The eight petitioners before this Court are amongst these 9 Members of the Indian National Congress. Mr. Sibal would submit that signing the said notice by the petitioners is an act by which the petitioners have voluntarily given up their membership of Congress party, and hence there is nothing wrong with the show cause notice given to the petitioners by the Speaker. 10. After having heard learned counsels for the parties at some length, this Court is of the opinion that it would not be proper for this Court to interfere in any manner, at this stage, with the proceedings, which have been here initiated by the Speaker of the House, as there is absolutely no doubt that it is a matter relating to a question of “disqualification” on grounds of defection and the question of disqualification of a member of House is a question which can only be decided by the Speaker of the House and his decision is final. That the decision of the Speaker would be quasi judicial in nature and it would be open to judicial review of the Superior Courts is a different matter altogether as that is a stage which has not been reached so far. It would therefore be wrong to interfere in any manner in these proceedings, or to express any opinion on any aspect of the matter, either on the submissions made by the petitioners or their rebuttal at the hands of respondent’s counsel. 11. For the same reason, this Court also refrains from expressing any word of caution or advice relating to the proceedings, as doing so to a Constitutional authority, such as the Speaker of the House, who is already seized with the matter would be under the circumstances, wholly unconstitutional. Therefore, in spite of repeated endeavor of the learned Senior counsel for the petitioners Mr. Dinesh Dwivedi urging this Court to make some kind of observations, this Court is not inclined to make these and firmly rejects this plea altogether. 12. Therefore, in spite of repeated endeavor of the learned Senior counsel for the petitioners Mr. Dinesh Dwivedi urging this Court to make some kind of observations, this Court is not inclined to make these and firmly rejects this plea altogether. 12. Needless to say that this would only be in line with the law laid down by the majority in the Constitution Bench decision in Kihoto Hollohan Vs Zachillhu & others reported in 1992 Supp (2) SCC 651 where the Hon’ble Apex Court has held in paragraph 110, as under:- “110. In view of the limited scope of judicial review that is available on account of the finality clause in Paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e. Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.” 13. In view of the above observations, this Court is of the considered view that the relief sought by the petitioners in the present writ petitions cannot be granted to them. 14. Accordingly, the writ petitions stand dismissed, in-limine. No order as to costs. 15. Considering the urgency in the matter, let a certified copy of this order be supplied to the parties today itself on the payment of usual charges, or in case if this is not possible, the same be supplied the next day, at the earliest.