In its recent verdict, the Telangana High Court directed the Telangana Legislative assembly speaker to decide the disqualification petitions pending against the defecting Bharatiya Rashtra Samiti (BRS) MLAs into the ruling Congress Party within four weeks. The judgment, Kuna Pandu Vivekanand v. State of Telangana, pronounced by a Single-judge bench of Hon’ble Justice Vijaysen Reddy underscored that a complete abdication of judicial review concerning the inaction of speaker, as a constitutional functionary, is an anathema and repugnant to the greater democratic values.
“To contend that indecision/inaction is not subject to judicial review, one has to ask for how long. It cannot be said that the Speaker can wait for five years, until the completion of the term of the house and still Court should lay off its hands. Such an approach would be against Constitutional mandate and antithetical to democratic principles.”
Pragmatic Application of Judicial Precedents
The principal issue before the High Court was whether a court, exercising the power of judicial review, can issue direction to the Speaker of Legislative Assembly of the State to decide disqualification petitions within a fixed time frame. In reviewing the arguments and precedents cited by the parties, the High Court faced the unique challenge of determining which judicial precedents to follow and, more critically, how to navigate through conflicting yet binding rulings. The judgment reflects four key aspects where the court crafted a constitutionally sound and pragmatic approach, demonstrating a balanced application of judicial reasoning:
Pre-decisional Review by setting a Timeframe
While the larger issue of adjudication was that of bringing the legislative functions of the speaker under the scrutiny of judicial review, a connected question for consideration was at which stage a court could intervene. It was a principled objection from the respondents, relying on the common law injunction doctrine of “Quia Timet” action which is aimed at putting an interlocutory “stay” for restraining any wrongful acts. Intervention by court by ordering the speaker to decide the pleas of disqualification was wrongfully read by respondents as amounting to seeking an interlocutory injunction. Therefore, the court did not address whether directing the speaker to decide the pleas within a definite timeframe amounts to quia timet (stay of proceedings), as such an indulgence would unnecessarily digress from the focal issue of protecting the ideals of Parliamentary Democracy – which was the objective of 10th Schedule in conferring such power to the Speaker.
In Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly, a 3-judge bench of the Apex Court ruled that a direction can be issued to the Speaker to decide disqualification petition within a reasonable time frame which can be, based on the specific facts, a maximum of three months. Moreover, Kihoto Hollohan v. Zachillhu, which was contented by the State to have disallowed Judicial review at a pre-decision stage, was in fact referred to in Keisham Meghachandra and also the 5-judge bench ruling in Rajendra Singh Rana v. Swami Prasad Maurya, and held to have meant that the very holding of office by party defectors due to speaker’s delay even for a single day is illegal and unconstitutional, and therefore, the Court is bound to protect the principles of democracy as a basic feature of the Constitution. In fact, emphasis was placed on the observations made in Rajendra Singh Rana by the three Judges in Keisham Meghachandra. The mandate in Kihoto Hollohan was neither overruled nor was diluted, but was, in fact, applied to read “inaction” akin to “breaking the Constitutional mandate” and hence, ruled to allow judicial review even in pre-decision stage to compel the speaker to act on the petitions.
The binary presented was testing the “decision” of speaker after it being rendered against “inaction” of the speaker in deciding in the first place. The High Court, adopting a progressive lens, equated the “inaction” to acting against the constitutional mandate – as it has been clearly held in Kihoto that failure to exercise Constitutional mandate by the Speaker is subject to judicial review. This was in essence what was also done in Rajendra Singh Rana where the UP Assembly Speaker’s order refusing to disqualify 13 BSP defectors was set aside on the ground that he had failed to exercise his jurisdiction.
Pragmatic Application of Stare Decisis- Differentiating Kihoto Hollohan with Keisham Meghachandra
It is a rule of thumb that the “ratio” of a judicial pronouncement emanates from the “issues” or the substantive questions of law framed by the court. Any other opinion is only an “obiter” and merely an observation which doesn’t have any precedential value because such observations are not specific to the facts and contentions before that court. Every part of a judgment is intricately linked to others and thus, must be read keeping the logical thread intact. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment. Therefore, a selective pick and choose does not constitute applying a ratio under the principle of Stare decisis to the facts of a future case.
The respondents relied on Kihoto under the logic that judicial review cannot be available at a stage prior to the making of a decision by the Speaker, (Para 110, Kihoto) which was further contended to have been applied by the same Telangana High Court in Errabelli Dayakar Rao, and by other High Courts as well.[1] Answering to this logic, the High Court clarified that the facts in Keisham Meghachandra are identical, and the “issue” therein is exactly the one before this court, i.e., whether direction can be issued to the Speaker for deciding a disqualification petition. Such an issue was specifically answered in a similar set of facts to hold that inaction of the Speaker to decide the petitions within a reasonable time will be subject to judicial review, hence also negating respondents’ stand that Kesiham is delivered under Article 142 of the Constitution and would not be binding unlike a judgement delivered under Article 141. As shown in the previous section on how Kihoto was in fact applied to read in the “constitutional mandate” logic, the High Court succinctly “distinguishes” authoritative 5-judge ruling of Kihoto with 3-judge bench in Keisham. The court goes further to outrightly and boldly observe that:
“If the contention of the learned Advocate General and other learned senior counsel appearing for the respondents that this Court can never give directions to the Speaker to decide disqualification within a time frame is to be accepted, then the question that would arise is how long the inaction or indecision of the Speaker to be tolerated by this Court.”
Though the Single-judge did not explicitly inculcate this in the text of the judgment, but what logically follows is that Paragraph 110 in Kihoto Hollohan is an obiter dictum but not the ratio, and a meaningful application of a precedent cannot mean cherry picking of a paragraph of the judgment by ignoring the other, but application of its actual substance. Paragraph 109 that provides violation of constitutional mandate as a ground for judicial review must be read with Paragraph 110 to provide a meaningful application. Hence, the essence of Kihoto, which is premised on the violation of the larger constitutional mandate, was rightly appreciated and applied by the Single-judge. Such a pragmatic reasoning depicts harmonious construction of the precedents which were otherwise construed in a democratically self-defeating sense.
Upholding Judicial Propriety
The respondents also emphasized judicial propriety as a tacit reason to strictly follow Kihoto. It was argued that the proper application of precedents requires adherence to the established hierarchy of judicial authority. Article 141 of the Constitution lays down that the “law declared” by the Supreme Court is binding upon all the courts within the territory of India. Specifically, in cases where there is a conflict between two Supreme Court decisions, the ruling of the larger bench must prevail. When conflicting judgments arise among different High Courts, judicial propriety dictates that the matter should be referred to the Supreme Court. Additionally, when conflicting opinions emerge within a divisional bench, the issue should be referred to a larger bench to ensure proper judicial discipline.
Based on this logic, the State contended that the smaller bench ruling in Keisham not be applied, per incurium, when a larger bench verdict already is well-settled in Kihoto. Such a step was contended to have already been taken by the Apex Court divisional bench in S.A. Sampath Kumar v. Kale Yadaiah by referring the matter to a 5-judge bench, which is currently kept in abeyance by the Supreme Court. Yet the Single-Judge quite eloquently negated such a logic through a sound reasoning that the specific question of “inaction of the speaker” as attracting judicial review is clearly answered in Rajendra Singh Rana stating that “a failure to exercise jurisdiction vested in a 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.” This reasoning was quite elaborately discussed in Keisham Meghachandra to clarify that the very question referred by S.A Sampath Kumar has already been clearly answered in Rajendra Singh and any further referral was unnecessary.
By relying on such an extraordinary logic the Telangana High Court ensured that no Speaker could wilfully abstain from acting, shielded by the belief that no court would question his/her inaction and delay in disposal of disqualification matters, as long as the matter was pending before a Constitution Bench.
Issuance of Mandamus to Speaker
While the larger question before the Court was to decide whether Courts can order the Speaker to act within a definite timeframe, the legally-permissible instrument to order the Speaker had to be found in the writ jurisdiction under Articles 32 and 226. While it is a settled position of law that the role of speaker under the 10th Schedule of the Constitution is to act as a tribunal, and perform a quasi-judicial function while deciding the disqualification petition, the appropriate writ to affirmatively direct the speaker to decide the petitions which they are constitutionally obliged to do would be that of Mandamus, which can be issued by a higher court to a tribunal or a lower court to perform the constitutionally obligated duty. It was exactly on this logic that in Keisham Meghachandra, the Apex Court rejected the application of the writ of “quo warranto”. While the Single-judge did not specifically provide a reasoning on the applicability of mandamus, yet to give a meaningful pathway to the law laid down in Keisham, it is undeniable that mandamus is theappropriate remedy under the wide ambit of Article 226.
Principle of Balanced Intervention
Judicial review of legislative actions is an important component of the larger concern of separation of powers. Articles 122 and 212 of the Constitution specifically enshrine this concept with regard to judicial intervention in Parliamentary proceedings and bar any intervention from courts on the ground of “irregularity of procedure”. When the Parliament enacted the 85th Constitutional amendment, which added anti-defection law to the 10th schedule, Part 6 of the schedule provided for “finality” of speaker’s decision and deemed such proceedings as those within Parliament/ House of legislature as envisaged in Articles 122 and 212, thereby excluding the Court’s Jurisdiction under Para 7. This was challenged in Kihoto Hollohan for having created a nonjusticiable constitutional area dealing with complex political issues. The five-judge bench upheld the Constitutional validity of the amendment, by inter alia holding that such proceedings are justiciable under Articles 136, 226 and 227, on the ground of “illegality” or perversity to the effect of constituting a violation of the constitutional mandate, in spite of the immunity it enjoys to a challenge on the ground of “irregularity of procedure”.
This constitutionally-sound reasoning was carried forward by the verdict pronounced in the case of Raja Ram Pal v. Hon’ble Speaker, Lok Sabha which distinguished procedural irregularity with a “substantial case of illegality” to hold thus-
“The proceedings which may be tainted on account of “substantive illegality” or unconstitutionality, as opposed to those suffering from merely irregularity thus cannot be held protected from judicial scrutiny by Article 122(1)”.
The Telangana High Court herein indirectly premised its reasoning on the same logic to hold that technical grounds cannot keep the Constitutional courts from intervening, especially when the situation clearly warrants otherwise. While the instant petition involved defection of only 3 BRS MLAs, the actual situation in Telangana shows that 10 BRS MLAs in total, till date, have defected to the ruling Congress party which has explicitly claimed to have adopted a policy to wipe out the opposition, with the CM himself trying to legitimize such actions by getting higher command’s approval to do so. Henceforth, the Single-Judge paves way for a “balanced intervention” by the courts in pendency of defection pleas when speaker is sitting over them to decide, by considering the contemporary democracy-inhibiting factors.
Undesirable, yet Inevitable Components of Defections
Eminent Constitutional Law scholar, Gautam Bhatia explains that there exists three undesirable, yet inevitable circumstances in deciding anti-defection issues per se, which cannot be ignored by the adjudicating courts – One, partisan Governors who are the Central government agents; Two, partisan Speakers who are the members of ruling party itself who subsequently needs to decide against their own party; Three, Horse-trading- party defectors who are paid staggering amounts of money to switch sides and bring down the government, the technique of resignations is used to circumvent the rigours of the anti-defection law.[2] Venturing into this area with a textualist reading of the Constitutional provisions seem to have already made it quite opaque, however a pragmatic judicial intervention must be based on the logic of not determining the substantive outcome, but ensuring the impact of the three undesirables highlighted above upon the democratic process is minimized to the maximum possible extent. This is exactly what the Telangana High Court has done through its balanced intervention in light of the ongoing defections continuing to the ruling party.
Moreover, post 2014, and especially in the last five years, emphasis has shifted from mere advocacy to judicial intervention to questioning the very basis of speaker acting as the adjudicating authority under the anti-defection law, citing the rampant defection pleas pending across numerous High Court. The Apex Court in Keisham Meghachandra went to the extent of suggesting that the Parliament make amendments to the Constitution to establish an impartial tribunal to adjudicate upon defection disqualification petitions. Therefore, the essence of the ruling in Keisham must be interpreted and applied at a higher threshold than the bygone era of Kihoto Hollohan,as has been quite eloquently demonstrated by the Telangana High Court.
Conclusion
The manner in which the respondents tried to shelter under the smoke-screen of Kihoto Hollohan was categorically negated based on a constitutionally sound reasoning by the Single-Judge of the Telangana High Court. An appeal to this single-judge ruling may be obvious, but any subsequent adjudication of this issue must be guided by the larger “spirit and mandate” of the Constitution that fits the constitution’s overall structure and guiding principles. Inaction of the speaker results in a failure of the legislature to hold executive accountable, thus warranting judicial review. Any contrary view, granting carte blanch power by shielding the Speaker for an infinite time will only become a regressive weed in the fabric of democratic accountability, stifling the constitutional progress towards an electoral democracy.
[1] Hoshyar Singh Chambyal v. Hon’ble Speaker, HP Legislative Assembly, 2024 SCC OnLine HP 2479; Mayawati v. Markandeya Chand (1998) 7 SCC 517; Balachandra L. Jarkiholi v. BS Yeddyurappa (2011) 7 SCC 1.
[2] Gautam Bhatia, “Unsealed Covers: A Decade of the Constitution, Courts and the State”, Harper Collins India, pp 288.
The Author is a 4th year student of NALSAR University Of Law, Hyderabad
Image Credit: Official Website, High Court of Telengana
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