REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 547 OF 2020 (ARISING OUT OF SLP (CIVIL) NO.18659 OF 2019)

KEISHAM MEGHACHANDRA SINGH            …APPELLANT

VERSUS

THE HON’BLE SPEAKER MANIPUR LEGISLATIVE ASSEMBLY & ORS.                 ...RESPONDENTS

WITH

CIVIL APPEAL NO. 548 OF 2020 (ARISING OUT OF SLP (CIVIL) NO.18763 OF 2019)

CIVIL APPEAL NO. 549 OF 2020 (ARISING OUT OF SLP (CIVIL) NO.23703 OF 2019)

CIVIL APPEAL NO. 550 OF 2020 (ARISING OUT OF SLP (CIVIL) NO.24146 OF 2019)

J U D G M E N T

R.F. Nariman, J.  

1. Leave granted.

2. The  Appeals  in  the  present  case  raise  important  questions

relating  to  the  Tenth  Schedule  to  the  Constitution  of  India

(hereinafter  referred to as “Tenth Schedule”).  The election for  the

11th Manipur Legislative Assembly was conducted in March, 2017.

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The said Assembly election produced an inconclusive result as none

of the political parties were able to secure a majority i.e. 31 seats in

a Legislative Assembly of 60 seats in order to form the Government.

The Indian National Congress (hereinafter referred to as “Congress

Party”)  emerged  as  the  single  largest  party  with  28  seats,  the

Bharatiya  Janata  Party  (hereinafter  referred  to  as  “BJP”)  coming

second with 21 seats.  The Respondent  No.3,  in  the Civil  Appeal

arising out of SLP(C) No. 18659 of 2019, contested as a candidate

nominated and set up by the Congress Party and was duly elected

as such.  On 12.03.2017,  immediately  after  the declaration of  the

results, Respondent No.3 along with various BJP members met the

Governor  of  the  State  of  Manipur  in  order  to  stake  a  claim  for

forming  a  BJP-led  Government.  On  15.03.2017,  the  Governor

invited the group lead by the BJP to form the Government in the

State. On the same day, the Chief Minister-Designate sent a letter to

the Governor  for  administering oath as Ministers to eight  elected

MLAs including Respondent No.3. On the same day,  Respondent

No.3 was sworn in as a Minister  in the BJP-led government and

continues as such till date.

3. As  many  as  thirteen  applications  for  the  disqualification  of

Respondent  No.3  were  filed  before  the  Speaker  of  the  Manipur

Legislative  Assembly  between  April  and  July,  2017  stating  that

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Respondent No.3 was disqualified under paragraph 2(1)(a) of the

Tenth Schedule. The present petition that was filed by the Appellant,

in the Civil  Appeal arising out of SLP(C) No. 18659 of 2019, was

dated 31.07.2017.    

4. Since  no  action  was  taken  on  any  of  these  petitions  by  the

Speaker, one T.N. Haokip filed a writ petition being Writ Petition (C)

No.353 of 2017 before the High Court of Manipur at Imphal, in which

the  Petitioner  prayed  that  the  High  Court  direct  the  Speaker  to

decide  his  disqualification  petition  within  a  reasonable  time.  On

08.09.2017, the High Court stated that as the issue of whether a

High Court can direct a Speaker to decide a disqualification petition

within a certain timeframe is pending before a Bench of 5 Hon’ble

Judges of the Supreme Court the High Court cannot pass any order

in the matter, and the matter was ordered to be listed so as to await

the outcome of the cases pending before the Supreme Court.    

5. After waiting till January, 2018, on 29.01.2018, the Appellant, in

the Civil Appeal arising out of SLP(C) No. 18659 of 2019, filed Writ

Petition (C) No.17 of 2018 before the same High Court asking for

the following reliefs:

“i. Issue Rule Nisi;

ii. To issue an appropriate Writ, Order or Direction as to this Hon’ble Court may deem fit and proper;

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iii. To  declare  that  Respondent  No.  3  has  incurred disqualification  for  being  a  member  of  the  Manipur Legislative  Assembly  under  para  2(1)  (a)  of  the  Xth Schedule to the Constitution of India in terms of law laid down by the Constitution Bench of the Hon’ble Supreme Court  in  Rajendra  Singh  Rana  and  Ors.  -Vrs-  Swami Prasad Maurya and Ors. reported in (2007) 4 SCC 270.

iv. If the Hon’ble High Court is pleased to consider that the prayer  made in para no.  (ii)  and (iii)  above deserve merit  for  a favourable order,  a writ  in the nature of  Quo Warranto  be  issued ousting Respondent  No.  3  from the post/office of Minister.”

6. The writ petition was taken up and heard by the High Court and

disposed  of  by  the  impugned  judgment  dated  23.07.2019.  The

questions that  the High Court  posed before itself,  which required

consideration at its hands, were stated as follows:

“(a) Whether,  in  the  facts  and  circumstances  of  the present case, the respondent No. 1 can be said to have failed  to  discharge  its  duties  as  enjoined  in  the  Tenth Schedule  to  the  Constitution  of  India  to  decide  the petitions?

(b) If the above issue (a) is answered in the affirmative, whether  the  respondent  No.  3  has  prima  facie  incurred disqualification?

(c) If the respondent No. 3 is found to have incurred a prima facie disqualification, whether this Court can issue an order  disqualifying  the  respondent  No.  3  from  being  a member  of  the  Manipur  Legislative  Assembly  or alternatively,  whether  this  Court  has  the  power  and jurisdiction to issue a writ  of  quo warranto declaring the holding of the post of a Minister by the respondent No. 3 as illegal, as it being without any authority of law?”

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7. In answer to a preliminary objection taken by the Speaker that

judicial review is shut out in cases like the present, the High Court

held that the Speaker is a quasi-judicial authority who is required to

take  a  decision  within  a  reasonable  time,  such  reasonable  time

obviously being a time which is much less than five years since the

life  of  the  House  was  five  years.  The  High  Court  held  that  the

remedy provided in the Tenth Schedule is in essence an alternative

remedy to be exhausted before approaching the High Court,  and

this  being  the  case,  if  such  alternative  remedy  is  found  to  be

ineffective due to deliberate inaction or indecision on the part of the

Speaker,  the  Court  cannot  be  denied  jurisdiction  to  issue  an

appropriate  writ  to  the  Speaker.  Consequently,  the  preliminary

objection was dismissed and the Court  went  on to  hear  the writ

petition on merits. On the facts as stated above, following  Ravi S.

Naik v. State of Maharashtra 1994 Supp. (2) SCC 641, the Court

found that the voluntary giving up of the membership of a political

party  may  be  express  or  implied  by  conduct,  and  that  the

unequivocal conduct of the Respondent No.3 becoming a Minister in

a BJP-led Government after fighting the election by being a member

of the Congress Party would make it clear that the disqualification

contained  in  paragraph  2(1)(a)  of  the  Tenth  Schedule  is  clearly

attracted. The High Court then cited several judgments on the writ of

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quo warranto but ultimately came to a finding that since the very

same  issue  was  pending  before  a  Constitution  Bench  of  the

Supreme Court, it  would not be appropriate for the High Court to

pass  any  order  for  the  time  being,  which  would  include  orders

relating to the inaction or indecision on the part of the Speaker, as

well as the issuing of a writ of  quo warranto. The High Court thus

ultimately declined to grant any relief in the writ petition, as a result

of which the Appellant is before us.

8. Shri Kapil Sibal, learned Senior Advocate appearing on behalf of

the Appellant, in the Civil Appeal arising out of SLP(C) No. 18659 of

2017,  has  argued  that  the  Speaker  in  the  present  case  has

deliberately  refused to  decide  the  disqualification  petitions  before

him. This is evident from the fact that no decision is forthcoming till

date on petitions that were filed way back in April, 2017. Further, it is

clear that notice in the present disqualification petition was issued by

the Speaker only on 12.09.2018, long after the petition had been

filed,  and  as  correctly  stated  by  the  High  Court,  it  cannot  be

expected that the Speaker will decide these petitions at all till the life

of the Assembly of 5 years expires. In these circumstances, he has

exhorted  us  to  issue a  writ  of  quo warranto against  Respondent

No.3  stating  that  he  has  usurped  a  constitutional  office,  and  to

declare that he cannot do so. For this purpose, he has cited several

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judgments of this Court. He has also argued that though it is correct

to state that whether a writ petition can at all be filed against inaction

by a Speaker is pending before a Bench of 5 Judges of this Court,

yet, it is clear from a reading of paragraph 110 of Kihoto Hollohan

v. Zachillhu & Ors. (1992) Supp. (2) SCC 651, that all  that was

interdicted  by  that  judgment  was  the  grant  of  interlocutory  stays

which would prevent a Speaker from making a decision and not the

other  way  around.  For  this  purpose,  he  read  to  us  Black’s  Law

Dictionary on the meaning of a quia timet action, and argued that the

judgment  read  as  a  whole  would  make  it  clear  that  if  the

constitutional  objective  of  checking  defections  is  to  be  achieved,

judicial review in aid of such goal can obviously not be said to be

interdicted.  He  also  strongly  relied  upon  the  observations  of  this

Court in Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4

SCC 270 and exhorted us to uphold the reasoning contained in the

impugned judgment and then issue a writ of  quo warranto against

Respondent No.3.

9. Mrs. Madhavi Divan, learned Addl. Solicitor General appearing

for the Hon’ble Speaker of the Manipur Legislative Assembly, has

argued that  the reliefs  prayed for  in  the writ  petition  filed  by the

Appellant,  in the Civil  Appeal arising out of  SLP(C) No. 18659 of

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2017,  are  diametrically  opposed  to  the  relief  asked  for  in  Writ

Petition  (C)  No.353  of  2017,  as  a  result  of  which,  there  being

mutually  destructive  pleas  and  prayers  made  in  the  two  writ

petitions, no relief ought to be granted in the present case. In any

case,  the  prayers  asked  for  in  the  present  case  are  directly

interdicted by the judgment of a Constitution Bench of this Court in

Kihoto Hollohan (supra) inasmuch as a writ of quo warranto cannot

possibly be granted without first deciding whether Respondent No.3

stands disqualified, which is within the exclusive jurisdiction of the

Speaker.  She argued that  the High Court  was wholly incorrect  in

holding that the Speaker’s decision under the Tenth Schedule would

be in the nature of an alternative remedy and held that this would be

directly  contrary  to  several  judgments  of  this  Court,  in  particular,

Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal

Pradesh Legislative Assembly (2016) 8 SCC 1, which states that

the  Speaker  has  exclusive  jurisdiction  to  decide  disqualification

questions that are referred to him. In any case, she argued that a

Three  Judge Bench  cannot  decide  the  present  case  and  has  to

await the judgment of a Five Judge Bench which has been made on

a specific reference made by a Two Judge Bench of this Court.  She

also  distinguished  the  sheet  anchor  of  Shri  Sibal’s  case  i.e.  the

judgment in Rajendra Singh Rana (supra) by stating that the facts

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there  were completely  different  and that  ultimately  judicial  review

took place only because there was a final decision of the Speaker in

that case. Further, because of the fact that the life of the Assembly

was about to end, this Court using its powers under Article 142 of

the Constitution of India in an extra-ordinary situation decided the

petition for disqualification itself. Both these features are absent in

the  present  case.  Thus,  according  to  her,  while  the  ultimate

conclusion in the High Court judgment is correct, all the findings in

favor of the Appellant fly in the face of judgments of this Court.

10.  Having heard learned counsel for both the parties, it is important

to first set out the reference order of this Court dated 08.11.2016 in

S.A.  Sampath  Kumar  v.  Kale  Yadaiah  and  Ors. SLP(C)  No.

33677/2015.  A  Division  Bench  of  this  Court  after  referring  to

Speaker,  Haryana  Vidhan  Sabha  v.  Kuldeep  Bishnoi  &  Ors.

(2015) 12 SCC 381, and Speaker, Orissa Legislative Assembly v.

Utkal Keshari Parida (2013) 11 SCC 794, then held:

“We have considered the aforesaid submissions of both the learned  Attorney  General  and  the  learned  counsel appearing  on  behalf  of  the  petitioner.  We  feel  that  a substantial  question  as  to  the  interpretation  of  the Constitution arises on the facts of the present case. It  is true that this Court in Kihoto Hollohan's case laid down that a  quia  timet  action  would  not  be  permissible  and  Shri Jayant  Bhushan,  learned  senior  counsel  appearing  on behalf of some of the respondents has pointed out to us

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that in P. Ramanatha Aiyar's Advanced Law Lexicon a quia timet action is the right to be protected against anticipated future  injury  that  cannot  be  prevented  by  the  present action. Nevertheless, we are of the view that it needs to be authoritatively decided by a Bench of five learned Judges of  this  Court,  as  to  whether  the  High  Court,  exercising power under Article 226 of  the Constitution, can direct a Speaker of a legislative assembly (acting in quasi judicial capacity  under  the  Tenth  Schedule)  to  decide  a disqualification petition within a certain time, and whether such a direction would not fall foul of the quia timet action doctrine mentioned in paragraph 110 of Kihoto Hollohan's case.  We  cannot  be  mindful  of  the  fact  that  just  as  a decision of a Speaker can be corrected by judicial review by the High Court exercising jurisdiction under Article 226, so  prima  facie  should  indecision  by  a  Speaker  be correctable  by  judicial  review  so  as  not  to  frustrate  the laudable object and purpose of the Tenth Schedule, which has  been  referred  to  in  both  the  majority  and  minority judgments  in  Kihoto  Hollohan's  case.  The  facts  of  the present case demonstrate that disqualification petitions had been  referred  to  the  Hon'ble  Speaker  of  the  Telangana State  Legislative  Assembly  on  23rd  August,  2014,  and despite  the  hopes  and  aspirations  expressed  by  the impugned judgment, the Speaker has chosen not to render any decision on the said petitions till date. We, therefore, place the papers before the Hon'ble Chief Justice of India to constitute an appropriate Bench to decide this question as early as possible.”

11.  We would have acceded to Mrs. Madhavi Divan’s plea that in

view of this order of a Division Bench of this Court, the hearing of

this case ought to be deferred until  the pronouncement by a Five

Judge  Bench  of  this  Court  on  the  issues  raised  in  the  present

petition. However, we find that this very issue was addressed by a

Five Judge Bench judgment in  Rajendra Singh Rana  (supra) and

has already been answered. Unfortunately, the decision contained in

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the aforesaid judgment was not brought to the notice of the Division

Bench  which  referred  the  matter  to  Five  Hon’ble  Judges  of  this

Court,  though  Rajendra  Singh  Rana  (supra)  was  sought  to  be

distinguished in Kuldeep Bishnoi (supra), which was brought to the

notice of the Division Bench of this Court.    

12.  Backtracking a little,  it  is  important  to  first  set  out  what  was

decided  in  the  majority  decision  in  Kihoto  Hollohan  (supra).  A

Bench of 3 learned Judges of this Court set out, in paragraph 24 of

the judgment, several questions that required decision in that case.

We are directly concerned with questions (E) and (F), which are so

set out and which read as follows:

“24. On the contentions raised and urged at the hearing the questions that fall for consideration are the following:

xxx xxx xxx

(E) That the deeming provision in Paragraph 6(2) of  the Tenth Schedule  attracts  the immunity  under  Articles  122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.

The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be  resolved  in  the  exclusive  manner  envisaged  by  the Constitution  and  is  not  amenable  to,  but  constitutionally immune from, curial adjudicative processes.

(F)  That  even  if  Paragraph  7  erecting  a  bar  on  the jurisdiction  of  Courts  is  held  inoperative,  the  Courts'

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jurisdiction is, in any event, barred as Paragraph 6(1) which imparts  a  constitutional  ‘finality’  to  the  decision  of  the Speaker or the Chairman, as the case may be, and that such concept of ‘finality’ bars examination of the matter by the Courts.”

13.  The majority judgment noticed that before the Constitution (Fifty

Second Amendment) Act, 1985 inserting the Tenth Schedule into the

Constitution of India, two abortive attempts were made in view of the

recommendations of the Committee on Defections to enact an anti-

defection  law.  The  first  was  the  Constitution  (Thirty  Second

Amendment) Bill,  1973, which lapsed on account of dissolution of

the  House;  and  the  second  was  the  Constitution  (Forty  Eighth

Amendment)  Bill,  1979  which  also  so  lapsed.  The  Court  in

paragraphs 9 and 13 referred to the object of the Constitution (Fifty

Second Amendment) Act, 1985 as follows:

“9. This  brings  to  the  fore  the  object  underlying  the provisions in the Tenth Schedule. The object is to curb the evil  of  political  defections  motivated  by  lure  of  office  or other  similar  considerations  which  endanger  the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing  as  a  Member  of  the  House.  The  grounds  of disqualification are specified in Paragraph 2 of the Tenth Schedule.

xxx xxx xxx

13. These  provisions  in  the  Tenth  Schedule  give recognition  to  the  role  of  political  parties  in  the  political process. A political party goes before the electorate with a particular  programme  and  it  sets  up  candidates  at  the

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election on the basis of  such programme. A person who gets elected as a candidate set up by a political party is so elected  on  the  basis  of  the  programme  of  that  political party. The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves  the  political  party  which  had  set  him  up  as  a candidate  at  the  election,  then  he  should  give  up  his membership  of  the  legislature  and  go  back  before  the electorate. The same yardstick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.”

14.  The Court dealt with contentions (E) and (F) together as follows:

“95. In  the  present  case,  the  power  to  decide  disputed disqualification under Paragraph 6(1) is pre-eminently of a judicial complexion.

96. The fiction in Paragraph 6(2), indeed, places it  in the first clause of Article 122 or 212, as the case may be. The words “proceedings in Parliament” or “proceedings in the legislature  of  a  State”  in  Paragraph  6(2)  have  their corresponding  expression  in  Articles  122(1)  and  212(1) respectively.  This  attracts  an  immunity  from  mere irregularities of procedures.

97. That apart, even after 1986 when the Tenth Schedule was  introduced,  the  Constitution  did  not  evince  any intention  to  invoke  Article  122  or  212  in  the  conduct  of resolution of disputes as to the disqualification of members under  Articles  191(1)  and  102(1).  The  very  deeming provision  implies  that  the  proceedings  of  disqualification are,  in  fact,  not  before  the  House;  but  only  before  the Speaker as a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is  it  subject  to the approval  by the House.  The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore,  no  immunity  under  Articles  122 and 212 from

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judicial scrutiny of the decision of the Speaker or Chairman exercising  power  under  Paragraph  6(1)  of  the  Tenth Schedule.

xxx xxx xxx

100. By  these  well  known  and  accepted  tests  of  what constitute a Tribunal, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.

xxx xxx xxx

109. In the light of the decisions referred to above and the nature  of  function  that  is  exercised  by  the Speaker/Chairman under Paragraph 6, the scope of judicial review  under  Articles  136,  and  226  and  227  of  the Constitution  in  respect  of  an  order  passed  by  the Speaker/Chairman under Paragraph 6 would be confined to  jurisdictional  errors  only  viz.,  infirmities  based  on violation  of  constitutional  mandate,  mala  fides,  non- compliance with rules of natural justice and perversity.

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.

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111. In the result, we hold on contentions (E) and (F):

That  the  Tenth  Schedule  does  not,  in  providing  for  an additional  grant  (sic ground)  for  disqualification  and  for adjudication of disputed disqualifications, seek to create a non-justiciable  constitutional  area.  The  power  to  resolve such  disputes  vested  in  the  Speaker  or  Chairman  is  a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks  to  impart  finality  to  the  decision  of  the speakers/Chairmen is  valid.  But  the concept  of  statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of  constitutional  mandates,  mala  fides,  non-compliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh case [(1965) 1 SCR 413 : AIR 1965 SC 745] to protect the validity of proceedings from mere  irregularities  of  procedure.  The  deeming  provision, having regard to the words ‘be deemed to be proceedings in Parliament’ or ‘proceedings in the legislature of a State’ confines the scope of the fiction accordingly.

The  Speakers/Chairmen  while  exercising  powers  and discharging  functions  under  the  Tenth  Schedule  act  as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage  prior  to  the  making  of  a  decision  by  the Speakers/Chairmen.  Having  regard  to  the  constitutional

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intendment  and  the  status  of  the  repository  of  the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases  of  interlocutory  disqualifications  or  suspensions which  may  have  grave,  immediate  and  irreversible repercussions and consequence.”

15.  In Rajendra Singh Rana (supra), this Court dealt with an order

made by the Speaker  of  the Uttar  Pradesh Legislative  Assembly

dated  06.09.2003.  On the  facts  in  that  case,  the  14th Legislative

Assembly Election for the State of U.P. was held in February, 2002

and since none of the political parties secured the requisite majority,

a coalition government was formed headed by Ms. Mayawati, leader

of the Bahujan Samaj Party (hereinafter referred to as “BSP”). On

25.08.2003,  the  Cabinet  took  a  unanimous  decision  for

recommending  dissolution  of  the  Assembly,  after  which,  on

27.08.2003, 13 members of the Legislative Assembly elected to the

Assembly on tickets of the BSP met the Governor and requested

him  to  invite  the  leader  of  the  Samajwadi  Party,  namely,  Shri

Mulayam Singh Yadav, to form the Government. On 29.08.2003, the

Governor  invited  the  leader  of  the  Samajwadi  Party  to  form  the

Government and gave him a time of two weeks to prove his majority

in the Assembly. On 04.09.2003, Mr. S.P. Maurya, leader of the BSP

filed a petition before the Speaker under the Tenth Schedule praying

that the 13 BSP MLAs who had proclaimed support to Shri Mulayam

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Singh Yadav before the Governor on 27.08.2003 had incurred the

disqualification  mentioned  in  paragraph  2(1)(a)  of  the  Tenth

Schedule. Meanwhile, a group of 37 MLAs, said to be on behalf of

40  MLAs  elected  on  BSP  tickets,  requested  the  Speaker  to

recognize the split  in  the BSP on the basis that  one-third  of  the

members of BSP consisting of 109 legislators had separated from

the BSP. On 06.09.2003, therefore, the Speaker did three things –

first,  he  accepted  that  37  out  of  109  comprises  one-third  of  the

members of the BSP, which amounted to a split, this group being

known as the Loktantrik Bahujan Dal.  This Dal had merged with the

Samajwadi Party which merger was then accepted by the very same

order  dated  06.09.2003.  Third,  the  Speaker  did  not  decide  the

application seeking disqualification of the 13 MLAs who were part of

the 37 MLAs who appeared before the Speaker, and adjourned the

disqualification petition. Meanwhile, since a writ petition was filed in

the High Court of Judicature at Allahabad before the Lucknow Bench

against this order, the Speaker passed another order on 14.11.2003,

stating  that  the  order  adjourning  the  petition  for  disqualification

would continue until after the High Court decided the writ petition.

However, on 07.09.2005, even before the writ petition was disposed

of by a Full Bench of the High Court, the Speaker passed an order

rejecting the petition filed for disqualifying of 13 MLAs of the BSP.    

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16.  On these facts, the Court noted in paragraph 17 of the judgment

that the order dated 06.09.2003 is the subject matter of challenge in

the writ petition filed before the High Court. In paragraph 30 of the

judgment,  this  Court  made it  clear  that  the order  of  the Speaker

dated  07.09.2005  would  have  no  independent  legs  to  stand  on,

stating as follows:

“30. ...This  last  order  is  clearly  inconsistent  with  the Speaker's earlier order dated 14-11-2003 and still  leaves open  the  question  whether  the  petition  seeking disqualification  should  not  have  been decided  first  or  at least  simultaneously  with  the  application  claiming recognition of a split. If the order recognising the split goes, obviously this last order also cannot survive. It has perforce to go.” [Emphasis Supplied]

17.  After  referring  to  this  Court’s  decision  in  Kihoto  Hollohan

(supra) and  Ravi S. Naik (supra) in para 22 of the judgment, the

Court held:

“22. …Suffice  it  to  say that  the decision of  the Speaker rendered  on  6-9-2003  was  not  immune  from  challenge before the High Court under Articles 226 and 227 of the Constitution of India.”

18. The Court then went on to hold:

“25. …On the  scheme  of  Articles  102  and  191  and  the Tenth Schedule, the determination of the question of split or merger cannot be divorced from the motion before the Speaker  seeking  a  disqualification  of  a  member  or members concerned. It is therefore not possible to accede to  the  argument  that  under  the  Tenth  Schedule  to  the Constitution,  the  Speaker  has  an  independent  power  to decide that there has been a split or merger of a political

18

party  as  contemplated  by  paras  3  and  4  of  the  Tenth Schedule  to  the  Constitution.  The  power  to  recognise  a separate group in Parliament or  Assembly may rest  with the Speaker on the basis of the Rules of Business of the House. But that is different from saying that the power is available  to  him  under  the  Tenth  Schedule  to  the Constitution independent of a claim being determined by him that a member or a number of members had incurred disqualification by defection. To that extent, the decision of the Speaker in the case on hand cannot be considered to be  an  order  in  terms  of  the  Tenth  Schedule  to  the Constitution.  The  Speaker  has  failed  to  decide  the question, he was called upon to decide, by postponing a decision  thereon.  There  is  therefore  some  merit  in  the contention of the learned counsel for BSP that the order of the Speaker may not enjoy the full  immunity in terms of para 6(1) of the Tenth Schedule to the Constitution and that even if it did, the power of judicial review recognised by the Court  in Kihoto Hollohan [1992 Supp (2)  SCC 651 :  AIR 1993 SC 412 : (1992) 1 SCR 686] is sufficient to warrant interference with the order in question.”         [Emphasis Supplied]

19. The Court also hastened to add:

“29. In the case on hand, the Speaker had a petition moved before  him  for  disqualification  of  13  members  of  BSP. When  that  application  was  pending  before  him,  certain members of BSP had made a claim before him that there has been a split in BSP. The Speaker, in the scheme of the Tenth Schedule and the rules framed in that behalf, had to decide the application for disqualification made and while deciding the same, had to decide whether in view of para 3 of the Tenth Schedule, the claim of disqualification had to be rejected. We have no doubt that the Speaker had totally misdirected himself in purporting to answer the claim of the 37 MLAs that there has been a split in the party even while leaving open the question of disqualification raised before

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him by  way  of  an  application  that  was  already  pending before  him.  This  failure  on  the  part  of  the  Speaker  to decide the application seeking a disqualification cannot be said to be merely in the realm of procedure. It goes against the  very  constitutional  scheme  of  adjudication contemplated by the Tenth Schedule read in the context of Articles  102  and  191  of  the  Constitution.  It  also  goes against the rules framed in that behalf and the procedure that he was expected to follow. It is therefore not possible to accept the argument on behalf of the 37 MLAs that the failure  of  the  Speaker  to  decide  the  petition  for disqualification at least simultaneously with the petition for recognition of a split  filed by them, is a mere procedural irregularity. We have no hesitation in finding that the same is a jurisdictional illegality, an illegality that goes to the root of the so-called decision by the Speaker on the question of split put forward before him. Even within the parameters of judicial review laid down in Kihoto Hollohan [1992 Supp (2) SCC 651 :  AIR 1993 SC 412 :  (1992)  1 SCR 686]  and in Jagjit  Singh v. State  of  Haryana [(2006)  11  SCC  1  : (2006) 13 Scale 335] it has to be found that the decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review.”                                                               [Emphasis

Supplied]

20.  The Court then adverted to the scope of judicial review being

limited as decided in Kihoto Hollohan (supra) as follows:

“39. On  the  side  of  the  37  MLAs,  the  scope  of  judicial review being limited was repeatedly stressed to contend that  the  majority  of  the  High  Court  had  exceeded  its jurisdiction. Dealing with the ambit of judicial review of an order of the Speaker under the Tenth Schedule, it was held in Kihoto Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC 412 : (1992) 1 SCR 686] : (SCC p. 706, paras 95-97)

20

“95. In the present case, the power to decide disputed disqualification  under  para  6(1)  is  pre-eminently  of  a judicial complexion.

96. The fiction in para 6(2), indeed, places it in the first clause of  Article 122 or 212, as the case may be. The words ‘proceedings in Parliament’ or ‘proceedings in the legislature  of  a  State’  in  para  6(2)  have  their corresponding  expression  in  Articles  122(1)  and  212(1) respectively.  This  attracts  an  immunity  from  mere irregularities of procedures.

97. That apart, even after 1986 when the Tenth Schedule was  introduced,  the  Constitution  did  not  evince  any intention to invoke Article 122 or 212 in the conduct of resolution  of  disputes  as  to  the  disqualification  of Members  under  Articles  191(1)  and  102(1).  The  very deeming  provision  implies  that  the  proceedings  of disqualification are, in fact, not before the House; but only before the Speaker  as a specially  designated authority. The decision under para 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is,  therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under para 6(1) of the Tenth Schedule.”

After referring to the relevant aspects, it was held: (SCC p. 707, para 100)

“100. By these well known and accepted tests of what constitute  a  Tribunal,  the  Speaker  or  the  Chairman, acting  under  para  6(1)  of  the  Tenth  Schedule  is  a Tribunal.”

It was concluded: (SCC p. 710, para 109)

“109. In the light of the decisions referred to above and the  nature  of  function  that  is  exercised  by  the Speaker/Chairman under  para 6,  the scope of  judicial review  under  Articles  136  and  226  and  227  of  the Constitution  in  respect  of  an  order  passed  by  the

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Speaker/Chairman under  para 6 would be confined to jurisdictional errors only viz. infirmities based on violation of  constitutional  mandate,  mala  fides,  non-compliance with rules of natural justice and perversity.”

The  position  was  reiterated  by  the  Constitution  Bench in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha [(2007) 3 SCC 184 : JT (2007) 2 SC 1] .  We are of the view that contours of interference have been well  drawn by Kihoto Hollohan [1992 Supp (2)  SCC 651 :  AIR 1993 SC 412 : (1992) 1 SCR 686] and what is involved here is only its application.

40. Coming  to  the  case  on  hand,  it  is  clear  that  the Speaker,  in  the  original  order,  left  the  question  of disqualification  undecided.  Thereby  he  has  failed  to exercise the jurisdiction conferred on him by para 6 of the Tenth  Schedule.  Such  a  failure  to  exercise  jurisdiction cannot be held to be covered by the shield of para 6 of the Schedule. He has also proceeded to accept the case of a split based merely on a claim in that behalf. He has entered no finding whether a split in the original political party was prima facie proved or not. This action of his, is apparently based  on  his  understanding  of  the  ratio  of  the  decision in Ravi S. Naik case [1994 Supp (2) SCC 641 : (1994) 1 SCR 754] . He has misunderstood the ratio therein. Now that  we have approved the reasoning and the approach in Jagjit  Singh case [(2006) 11 SCC 1 :  (2006) 13 Scale 335] and the ratio therein is clear, it has to be held that the Speaker has committed an error that goes to the root of the matter or an error that is so fundamental, that even under a limited judicial review the order of the Speaker has to be interfered  with.  We  have,  therefore,  no  hesitation  in agreeing with the majority of the High Court in quashing the decisions of the Speaker.

41. In view of our conclusions as above, nothing turns on the arguments urged on what were described as significant facts and on the alleged belatedness of the amendment to

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the writ petition. It is indisputable that in the order that was originally  subjected  to  challenge  in  the  writ  petition,  the Speaker  specifically  refrained  from  deciding  the  petition seeking disqualification of the 13 MLAs. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of  the High Court  in  exercise of  its  power of judicial review.”          [Emphasis Supplied]

21.  Finding that the life of the Assembly was about to end and that if

the 13 members were found to be disqualified their continuance in

the Assembly even for a day would be illegal and unconstitutional,

and that their holding of office as Ministers would also be illegal, the

Court  stated that  it  was bound to protect  the Constitution and its

values, and the principles of democracy, which is a basic feature of

the Constitution, and then went on to declare that the writ petition

will stand allowed with a declaration that the 13 members who met

the  Governor  on  27.08.2003  stand  disqualified  from  the  U.P

Legislative Assembly w.e.f. 27.08.2003 on the ground contained in

paragraph 2(1)(a) of the Tenth Schedule.   

22. It  is  clear from a reading of  the judgment in  Rajendra Singh

Rana  (supra)  and,  in  particular,  the  underlined  portions  of

paragraphs 40 and 41 that the very question referred by the Two

Judge  Bench  in  S.A.  Sampath  Kumar  (supra)  has  clearly  been

answered stating that a failure to exercise jurisdiction vested in a

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Speaker cannot be covered by the shield contained in paragraph 6

of  the  Tenth  Schedule,  and  that  when  a  Speaker  refrains  from

deciding a petition within a reasonable time, there was clearly an

error which attracted jurisdiction of the High  Court in exercise of the

power of judicial review.

23. Indeed,  the  same result  would  ensue on  a  proper  reading of

Kihoto  Hollohan (supra).  Paragraphs  110  and  111  of  the  said

judgment  when read  together  would  make it  clear  that  what  the

finality clause in paragraph 6 of the Tenth Schedule protects is the

exclusive  jurisdiction  that  vests  in  the  Speaker  to  decide

disqualification petitions so that nothing should come in the way of

deciding  such  petitions.  The  exception  that  is  made  is  also  of

importance in  that  interlocutory  interference with  decisions of  the

Speaker  can  only  be  qua  interlocutory  disqualifications  or

suspensions,  which  may have  grave,  immediate,  and  irreversible

repercussions. Indeed, the Court made it clear that judicial review is

not available at  a stage prior  to the making of  a decision by the

Speaker either by a way of quia timet action or by other interlocutory

orders.    

24. A quia timet action has been described in Black’s Law Dictionary

as follows:

24

“Quia Timet.  Because he fears or apprehends. In equity practice, the technical name of a bill filed by a party who seeks the aid of a court of equity, because he fears some future probable injury to his rights or interests, and relief granted must depend on circumstances.”

25. The leading judgment referred to insofar as  quia timet  actions

are concerned is the judgment in Fletcher v. Bealey (1884) 28 Ch.

D. 688. In this case, a quia timet action was asked for to interdict the

tort of nuisance in order to prevent noxious liquid from flowing into a

river. Pearson, J. after referring to earlier judgments on  quia timet

action then held at page 698:

“I do not think, therefore, that I shall be very far wrong if I lay it down that there are at least two necessary ingredients for a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed,  the damage will  be suffered,  I  think it  must  be shewn that, if  the damage does occur at any time, it  will come in such a way and under such circumstances that it will be impossible for the Plaintiff to protect himself against it if relief is denied to him in a quia timet action.”

26.  This statement of the law has subsequently been followed by

recent English decisions reported as London Borough of Islington

v. Margaret Elliott [2012] EWCA Civ.  56 (See paragraph 30) and

Vastint Leeds BV v. Persons Unknown [2018] EWHC 2456 (Ch.)

in which a quia timet injunction was described in the following terms:

25

“26.  Gee describes a quia timet injunction in the following terms [Gee, Commercial Injunctions, 6th ed (2016) at [2- 035]]:

“A quia  timet  (since  he  fears)  injunction  is  an  injunction granted where no actionable wrong has been committed, to prevent  the  occurrence  of  an  actionable  wrong,  or  to prevent repetition of an actionable wrong.””

The  decision  in  Fletcher  (supra)  was  referred  to  in  approval  in

paragraph 30 of the aforesaid judgment.   

27.  The decision in  Fletcher  (supra) was also referred to by this

Court in  Kuldip Singh v. Subhash Chander Jain (2000) 4 SCC

50 as follows:

“6. A quia  timet action  is  a  bill  in  equity.  It  is  an  action preventive in nature and a specie of precautionary justice intended  to  prevent  apprehended  wrong  or  anticipated mischief and not to undo a wrong or mischief when it has already  been  done.  In  such  an  action  the  court,  if convinced, may interfere by appointment of receiver or by directing security to be furnished or by issuing an injunction or any other remedial process. In Fletcher v. Bealey [(1885) 28 Ch D 688 :  54 LJ Ch 424 :  52 LT 541] ,  Mr Justice Pearson  explained  the  law  as  to  actions quia  timet as follows:

“There are at  least  two necessary  ingredients  for  a quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the  apprehended  damage  will,  if  it  comes,  be  very substantial. I should almost say it must be proved that it will be irreparable, because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed the  damage will  be  suffered,  I  think  it  must  be shown that, if  the damage does occur at any time, it  will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a quia timet action”.”

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28.   A reading of the aforesaid decisions, therefore, shows that what

was meant to be outside the pale of judicial review in paragraph 110

of  Kihoto Hollohan (supra) are  quia timet actions in the sense of

injunctions to prevent the Speaker from making a decision on the

ground of imminent apprehended danger which will be irreparable in

the sense that if the Speaker proceeds to decide that the person be

disqualified, he would incur the penalty of forfeiting his membership

of the House for a long period.   Paragraphs 110 and 111 of Kihoto

Hollohan (supra) do not, therefore, in any manner, interdict judicial

review  in  aid  of the Speaker  arriving at  a  prompt  decision as to

disqualification under the provisions of the Tenth Schedule. Indeed,

the Speaker, in acting as a Tribunal under the Tenth Schedule is

bound to decide disqualification petitions within a reasonable period.

What  is  reasonable  will  depend  on  the  facts  of  each  case,  but

absent exceptional circumstances for which there is good reason, a

period of three months from the date on which the petition is filed is

the outer limit within which disqualification petitions filed before the

Speaker  must  be  decided  if  the  constitutional  objective  of

disqualifying persons who have infracted the Tenth Schedule is to be

adhered to. This period has been fixed keeping in mind the fact that

ordinarily the life of the Lok Sabha and the Legislative Assembly of

the States is 5 years and the fact that persons who have incurred

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such disqualification do not  deserve to be MPs/MLAs even for  a

single day, as found in Rajendra Singh Rana (supra), if they have

infracted the provisions of the Tenth Schedule.   

29.  In  the  years  that  have  followed  the  enactment  of  the  Tenth

Schedule  in  1985,  this  Court’s  experience  of  decisions  made by

Speakers generally leads us to believe that the fears of the minority

judgment in  Kihoto Hollohan (supra) have actually come home to

roost. Verma, J. had held :

“181. The Speaker being an authority within the House and his  tenure  being  dependent  on  the  will  of  the  majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a Member has adjudicatory  disposition  and,  therefore,  requires  the decision to be rendered in consonance with the scheme for adjudication  of  disputes.  Rule  of  law  has  in  it  firmly entrenched, natural justice, of which, rule against bias is a necessary  concomitant;  and  basic  postulates  of  rule against bias are: nemo judex in causa sua — ‘A Judge is disqualified from determining any case in which he may be, or  may  fairly  be  suspected  to  be,  biased’;  and  ‘it  is  of fundamental  importance  that  justice  should  not  only  be done, but should manifestly and undoubtedly be seen to be done.’ This appears to be the underlying principle adopted by the framers of  the Constitution in not  designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy. There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of  the  Supreme  Court  and  High  Court  is  outside  the

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judiciary  in  the  Parliament  under  Article  124(4).  On  the same  principle  the  authority  to  decide  the  question  of disqualification of a Member of Legislature is outside the House as envisaged by Articles 103 and 192.

182. In the Tenth Schedule, the Speaker is made not only the  sole  but  the  final  arbiter  of  such  dispute  with  no provision for any appeal or revision against the Speaker's decision  to  any  independent  outside  authority.  This departure  in  the  Tenth  Schedule  is  a  reverse  trend  and violates  a  basic  feature  of  the  Constitution  since  the Speaker cannot be treated as an authority contemplated for  being  entrusted  with  this  function  by  the  basic postulates  of  the  Constitution,  notwithstanding  the  great dignity  attaching  to  that  office  with  the  attribute  of impartiality.”

30. It  is  time  that  Parliament  have  a  rethink  on  whether

disqualification petitions ought to be entrusted to a Speaker as a

quasi-judicial authority when such Speaker continues to belong to a

particular political party either de jure or de facto. Parliament may

seriously  consider  amending  the  Constitution  to  substitute  the

Speaker of the Lok Sabha and Legislative Assemblies as arbiter of

disputes  concerning  disqualification  which  arise  under  the  Tenth

Schedule with a permanent Tribunal headed by a retired Supreme

Court Judge or a retired Chief Justice of a High Court, or some other

outside independent mechanism to ensure that such disputes are

decided  both  swiftly  and  impartially,  thus  giving  real  teeth  to  the

provisions contained in the Tenth Schedule, which are so vital in the

proper functioning of our democracy.

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31. It is not possible to accede to Shri Sibal’s submission that this

Court issue a writ of quo warranto quashing the appointment of the

Respondent  No.3  as  a  minister  of  a  cabinet  led  by  a  BJP

government.  Mrs.  Madhavi  Divan  is  right  in  stating  that  a

disqualification under the Tenth Schedule from being an MLA and

consequently  minister  must  first  be  decided  by  the  exclusive

authority  in  this  behalf,  namely,  the  Speaker  of  the  Manipur

Legislative  Assembly.  It  is  also  not  possible  to  accede  to  the

argument of Shri Sibal that the disqualification petition be decided by

this  Court  in  these  appeals  given  the  inaction of  the  Speaker.  It

cannot be said that the facts in the present case are similar to the

facts in Rajinder Singh Rana (supra). In the present case, the life of

the legislative assembly comes to an end only in March, 2022 unlike

in  Rajinder Singh Rana (supra) where, but for this Court deciding

the disqualification petition in effect, no relief could have been given

to the petitioner in that case as the life of the legislative assembly

was about to come to an end. The only relief that can be given in

these  appeals  is  that  the  Speaker  of  the  Manipur  Legislative

Assembly be directed to decide the disqualification petitions pending

before him within a period of four weeks from the date on which this

judgment  is  intimated to  him.  In  case no decision is  forthcoming

even after a period of four weeks, it will be open to any party to the

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proceedings to apply to this Court for further directions/reliefs in the

matter.

32. The impugned judgment of the High Court dated 23.07.2019 is

set aside. The Civil Appeals arising out of SLP(C) No. 18659 of 2019

and  SLP(C)  No.  18763 of  2019 are  partly  allowed and  the  Civil

Appeals arising out of SLP(C) No. 23703 of 2019 and SLP(C) No.

24146 of 2019 are dismissed in terms of this judgment. No order as

to costs.

.……………………………J.   (R.F. Nariman)

.……………………………J.      (Aniruddha Bose)

……………………………J.  (V. Ramasubramanian)  

New Delhi; January 21, 2020.

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