Supreme Court of India
Padi Kaushik Reddy vs The State Of Telangana on 31 July, 2025
Author: B.R. Gavai
Bench: B.R. Gavai
2025 INSC 912 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL/ORIGINAL APPELLATE JURISDICTION
CIVIL APPEAL NOS.___________ OF 2025
(Arising out of SLP(C) Nos. 2353-54 of 2025)
PADI KAUSHIK REDDY ETC.
…APPELLANT(S)/PETITIONER(S)
VERSUS
THE STATE OF TELANGANA AND
OTHERS ETC. …RESPONDENTS
WITH
WRIT PETITION (CIVIL) NO. 82 OF 2025
CIVIL APPEAL NO.___________ OF 2025
(Arising out of SLP(C) No. __________of 2025)
DIARY NO.14577 OF 2025
JUDGMENT
B.R. GAVAI, CJI
1. Leave granted in SLP (C) Nos. 2353-2354 of 2025 and SLP
(C) Diary No. 14577 of 2025.
2. The appeals in the present set of matters challenge the
judgment and final order dated 22nd November 2024 passed by
a Division Bench of the High Court for the State of Telangana
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2025.07.31
11:29:18 IST
at Hyderabad1 in Writ Appeal Nos. 1157, 1158 and 1160 of
Reason:
1 Hereinafter referred to as “the High Court”.
1
2024 whereby the Division Bench of the High Court set aside
the judgment and final order dated 9th September 2024 passed
by a learned Single Judge of the High Court in a batch of Writ
Petitions.
FACTS
3. Shorn of unnecessary details, the facts leading to the
appeals are as under:
3.1. On 3rd November 2023, on the recommendation of the
Election Commission of India, the Hon’ble Governor of the
State of Telangana issued the notification for General Election
to the State Legislative Assembly.
3.2. Pursuant to the notification, one Danam Nagender filed
his nomination as a candidate of the Bharat Rashtra Samithi2
from the Khairatabad Assembly Constituency on 6th November
2023. Similarly, two others namely Venkata Rao Tellam and
Kadiyam Srihari filed their nomination from Bhadrachalam
Assembly Constituency and Ghanpur Station Constituency as
candidates of BRS on 9th November 2023.
3.3. Thereafter, on 30th November 2023, the elections were
held and the results were declared on 3rd December 2023.
2 Hereinafter referred to as “BRS”.
2
3.4. The aforementioned Danam Nagender, Venkata Rao
Tellam and Kadiyam Srihari won the election from their
respective constituency. The Indian National Congress3
emerged as the single largest party and it along with its ally
formed the Government.
3.5. It is the allegation of the appellants that on 15th March
2024, Danam Nagender joined the INC. It is further their
allegation that the other two BRS Members of Legislative
Assembly4 namely Kadiyam Srihari and Venkata Rao Tellam
also joined the INC on 31st March 2024 and 7th April 2024
respectively.
3.6. Subsequently, the Appellants in the lead matter namely
Padi Kaushik Reddy and Kuna Pandu Vivekanand, who are
themselves MLAs belonging to BRS, filed separate petitions
under Paragraph 2(1) of the Tenth Schedule read with Article
191(2) of the Constitution of India and Rules 6(1) and 6(2) of
the Members of Telangana Legislative Assembly
(Disqualification on ground of Defection) Rules, 19865 before the
Telangana State Legislative Assembly on 18th March 2024,
3 Hereinafter referred to as “INC”.
4 Hereinafter referred to as “MLA”.
5 Hereinafter referred to as “Disqualification Rules 1986”.
3
2nd April 2024 and 8th April 2024. The common prayer in all
the three petitions was for a declaration from the Speaker of
the Telangana Legislative Assembly that the MLAs from BRS
who joined the INC be declared as disqualified from continuing
as members of the Telangana Legislative Assembly.
3.7. The Appellant in the connected matter, namely
Alleti Maheshwar Reddy, who is an MLA belonging to
Bharatiya Janata Party6, also filed a petition seeking the
disqualification of Danam Nagender on 1st July 2024.
3.8. Thereafter, aggrieved by the inaction/delay on part of the
Speaker in deciding the disqualification petitions, the
Appellants filed three separate Writ Petitions before the High
Court being Writ Petition Nos. 9472, 11098 & 18553 of 2024.
The first two Writ Petitions were filed on 10th April 2024 and
24th April 2024 and the third Writ Petition was filed on 9th July
2024.
3.9. On 9th September 2024, the learned Single Judge of the
High Court by a common judgment and order directed the
Secretary of the Telangana Legislative Assembly to forthwith
place the disqualification petitions before the Speaker for fixing
6 Hereinafter referred to as “BJP”.
4
a schedule of hearing (filing of pleadings, documents, personal
hearing etc.) within a period of four weeks. It was further
directed that the schedule so fixed, shall be communicated to
the Registrar (Judicial) of the High Court. It was further
clarified by the learned Single Judge of the High Court that if
nothing is heard within four weeks, then the matter would be
reopened suo motu and appropriate orders would be passed.
3.10. Taking exception to the judgment and order passed
by the learned Single Judge of the High Court, the Secretary of
the Telangana Legislative Assembly preferred three separate
intra-court appeals being Writ Appeal No. 1157, 1158 & 1160
of 2024.
3.11. On 22nd November 2024, the Division Bench of the
High Court by a common judgment and final order disposed of
the Writ Appeals by setting aside the judgment and order
passed by the learned Single Judge of the High Court.
3.12. Aggrieved thereby, the present appeals pertaining to
disqualification petitions pending against three MLAs came to
be filed by way of special leave.
3.13. A Writ Petition has also been filed before this Court
by the Appellants in the lead matter along with a few others
5
pertaining to disqualification petitions pending against
another seven MLAs. The prayer in the Writ Petition is on the
same lines as the prayer by the original writ-petitioners before
the High Court i.e., to direct the Speaker to decide the
disqualification petitions in a time-bound manner and
preferably within an outer limit of 4 weeks. Accordingly, the
Writ Petition was tagged and heard along with the present
appeals.
SUBMISSIONS
4. We have heard Shri C. Aryama Sundaram, Shri Dama
Seshadri Naidu and Shri Gandra Mohan Rao, learned Senior
Counsel appearing on behalf of the Appellants/Petitioners and
Shri Mukul Rohatgi, Dr. Abhishek Manu Singhvi, Shri Ravi
Shankar Jandhyala, Shri Gaurav Agrawal, Shri S. Niranjan
Reddy, learned Senior Counsel appearing on behalf of the
Respondents.
5. Shri Sundaram, learned Senior Counsel appearing on
behalf of the Appellants submitted that till the time the learned
Single Judge of the High Court decided the writ petition on 9th
September 2024 i.e., after a period of almost five months from
the date of filing, the Speaker had not even issued a notice in
6
the disqualification petitions filed by the Appellants.
It is submitted that taking into consideration this factual
aspect of the matter, the learned Single Judge had issued a
direction only to the effect that the Speaker should fix a
schedule of hearing within a period of 4 weeks from the date
of the said order. It is therefore submitted that, as such, there
was no occasion for the learned Judges of the Division Bench
to have interfered with the order of the learned Single Judge.
6. Shri Sundaram submitted that even after the order of the
learned Single Judge, for a period of more than 4 months, the
Speaker did not take any action. It is further submitted that
only after the present set of appeals came to be filed before this
Court on 15th January 2025, a notice has been issued to the
delinquent MLAs on 16th January 2025. The learned Senior
Counsel submitted that under Rule 7 of the Disqualification
Rules, 1986, a copy of the Disqualification Petition is required
to be forwarded to the member in relation to whom the petition
has been made or the Leader of the Legislature Party to which
the member belongs. It is submitted that in spite of a lapse of
a period of more than 11 months from the filing of
disqualification petitions, even the statutory requirement as
7
per Rule 7 of the Disqualification Rules 1986 has not been
complied with. It is further submitted that since the Speaker
was acting in such a lackadaisical manner, the learned Single
Judge of the High Court was completely justified in issuing
directions to the Secretary of the Telangana Legislative
Assembly to place the matter before the Speaker for fixing of
the schedule of the hearing within a period of 4 weeks.
7. Shri Sundaram submitted that the learned Single Judge
of the High Court had rightly applied the principles as laid
down by the Constitution Bench of this Court in the cases of
Kihoto Hollohan v. Zachillhu and Others7, Rajendra
Singh Rana and Others v. Swami Prasad Maurya and
Others8 and Subhash Desai v. Principal Secretary,
Governor of Maharashtra and Others9. The learned Senior
Counsel further submitted that the facts in the present case
are squarely identical to the facts in the case of Keisham
Meghachandra Singh v. Speaker, Manipur Legislative
Assembly and Others10. It is submitted that applying the said
case, the learned Single Judge of the High Court would have
7
1992 Supp (2) 651
8
(2007) 4 SCC 270
9
(2024) 2 SCC 719
10
(2021) 16 SCC 503
8
been justified even in directing the disqualification petitions to
be decided within a specified period. However, the learned
Single Judge of the High Court, exercising restraint and
showing respect to the high constitutional functionary, had
only issued a direction to the Secretary of the Telangana
Legislative Assembly to place the matter before the Speaker for
fixing up the schedule of the hearing.
8. It is submitted by the learned Senior Counsel that since
the directions issued by the Constitution Bench of this Court
on 11th May 2023 in the case of Subhash Desai (supra) were
not complied with by the Speaker, a Full Bench of this Court
in the case of Sunil Prabhu v. The Speaker, Maharashtra
State Legislative Assembly11 on 18th September 2023,
directed to place the proceedings before the Speaker within a
period of one week from that date so as to issue procedural
directions for completing the record and setting down a time
schedule for hearing of the disqualification petitions. It is
further submitted that thereafter vide an order dated 30th
October 2023, this Court in the said case of Sunil Prabhu
(supra) directed the pending proceedings under the Tenth
11
Writ Petition (C) No.685 of 2023
9
Schedule to be concluded and final orders to be passed in
respect of Group A petitions on or before 31st December 2023
and Group B petitions on or before 31st January 2024. The
learned Senior Counsel further submitted that the said
directions were issued by a Bench presided over by the same
learned Judge (D.Y. Chandrachud, C.J.), who had authored
the judgment in the case of Subhash Desai (supra).
9. Shri Sundaram submitted that the learned Judges of the
Division Bench of the High Court, have erred in setting aside
a well-reasoned and fairly balanced judgment of the learned
Single Judge of the High Court. He further submitted that this
is a fit case wherein this Court should issue directions to the
Speaker to decide the disqualification petitions within a
specified period of time. He, therefore, prayed that the appeals
be allowed and appropriate directions be issued.
10. Shri Naidu, learned Senior Counsel appearing on behalf
of the Appellants/Petitioners supported the arguments
advanced by Shri Sundaram.
11. Additionally, Shri Naidu submitted that prolonging the
disqualification proceedings and not taking them to a logical
end would frustrate the very purpose of the Tenth Schedule to
10
the Constitution of India. He submitted that the fear with
regard to the Speaker belonging to a particular political party
and as a result acting in a partisan manner was apprehended
when the Parliament was discussing the insertion of the Tenth
Schedule in the Constitution. It is submitted that Shri A.K.
Sen, the then Law Minister, had stated that the Speaker was
expected to act in an impartial manner and decide the
disqualification proceedings without any delay. Not only that
but Shri A.K. Sen had stated that if the amendment to the
Constitution was to be effective, and if the defection was to be
outlawed effectively, then it was necessary to choose a forum
which would decide the matter fearlessly and expeditiously. He
further stated that the Speaker was the only forum that was
possible. In that light, the learned Senior Counsel submitted
that a situation has now arisen which would require this Court
to reconsider the issue because in many cases the Speaker has
been acting like a member of a political party and not acting
like a Tribunal. He, therefore, reiterated that this Court should
direct the Speaker to decide the disqualification petitions
matter within a specified period of time.
11
12. Shri Rohatgi, learned Senior Counsel appearing on behalf
of the respondents, on the contrary, submitted that the
Division Bench of the High Court has rightly applied the legal
position as emanating from the Constitution Bench decisions
of this Court in the cases of Rajendra Singh Rana (supra),
Kihoto Hollohan (supra) and Subhash Desai (supra) and
held that a court cannot issue timelines to the Speaker for
deciding the matter within a particular period. He submitted
that the High Court does not have the power of judicial
superintendence over the functioning of the Speaker as a
Tribunal under Article 227 of the Constitution. He submitted
that the only power of judicial review that is available with the
High Court is under Article 226 of the Constitution. It is
submitted that while exercising the power of judicial review
under Article 226 of the Constitution, the High Court can only
examine the decision arrived at by the Speaker. It is further
submitted by the learned Senior Counsel that it is not
permissible for the High Court to pass any order which would
amount to Quia Timet action. It is submitted that this Court in
the case of Kihoto Hollohan (supra) has categorically held
that the High Court under Article 226 of the Constitution
12
cannot pass any order which would amount to Quia Timet
action. It is, therefore, submitted that as such any petition
prior to the decision made by the Speaker would not be
tenable.
13. Shri Rohatgi further submitted that the three-Judges
Bench of this Court has wrongly decided the case of Keisham
Meghachandra Singh (supra). In that regard, it is submitted
that this Court in the case of Keisham Meghachandra Singh
(supra) did not take into consideration the law laid down by
the Constitution Bench in the cases of Kihoto Hollohan
(supra) and Rajendra Singh Rana (supra) in the correct
perspective. It is, therefore, submitted that vide the impugned
judgment and final order, the Division Bench of the High Court
has rightly distinguished the judgment of this Court in the
case of Keisham Meghachandra Singh (supra).
14. Shri Rohatgi further submitted that, in any case, judicial
propriety demanded that this Court should not have delivered
a judgment as was delivered in the case of Keisham
Meghachandra Singh (supra) inasmuch as a Bench
comprising of two learned Judges on an earlier occasion had
referred the same issue to a larger Bench by an order dated 8th
13
November 2016 in the case of S.A. Sampath Kumar v. Kale
Yadaiah and Others12. He submitted that as a matter of fact
the judgment in the case of Keisham Meghachandra Singh
(supra) tries to nullify what has been held by the larger
Benches of this Court in the cases of Kihoto Hollohan (supra)
and Rajendra Singh Rana (supra).
15. Shri Rohatgi further submitted that even the
Constitution Bench decision in the case of Subhash Desai
(supra) does not lay down any timeline for the Speaker for
deciding a disqualification petition. It is, therefore, submitted
that the learned Division Bench of the High Court was right in
reversing the direction of the learned Single Judge of the High
Court to the Speaker to decide the disqualification petitions
within a specified period.
16. Dr. Singhvi, Shri Ravi Shankar Jandhyala, and Shri
Gaurav Agrawal, learned Senior Counsel supplemented the
arguments of Shri Rohatgi on the similar lines.
17. Dr. Singhvi submitted that no judgment of this Court,
including the three Constitution Bench judgments, has given
directions to the Speaker for deciding the matter within a
12
(2021) 16 SCC 528
14
specified period. It is submitted by Dr. Singhvi that the only
exception in this regard is the case of Keisham
Meghachandra Singh (supra), however, it is reiterated by the
learned Senior Counsel that Keisham Meghachandra Singh
(supra) does not lay down a good law.
18. Insofar as the orders passed by the Full Bench of this
Court dated 18th September 2023 and 30th October 2023 are
concerned, Dr. Singhvi submitted that the said orders do not
lay down a binding precedent. Next, Dr. Singhvi tried to
distinguish the case of Rajendra Singh Rana (supra) by
stating that the facts in the said case are totally different. It is
submitted that in the case of Rajendra Singh Rana (supra),
because the term of the Assembly was coming to an end, the
Court was justified in directly deciding the disqualification
petition itself. It is further submitted that, in the present case,
there is still a long time for the term to expire and as such,
there is no urgency which requires a direction to be issued to
the Speaker to decide the matter within a particular period of
time.
19. Shri Agrawal submitted that if the Parliament decides
that a particular time limit is required to be laid down for
15
deciding the disqualification petitions, nothing prevents the
Parliament from doing so. However, the Parliament has not yet
chosen to do so and therefore it is neither the High Court nor
this Court that can issue a writ directing the Speaker to decide
the disqualification proceedings within a particular period.
20. Shri Agrawal further submitted that in any case, the
learned Division Bench of the High Court vide the impugned
judgment and final order has itself directed that the matter
should be decided within a reasonable period and as such, no
interference is warranted in the present proceedings.
21. Shri Sundaram, in rejoinder, submitted that in the
present case, the facts are glaring. It is submitted that one of
the MLAs, after being elected to the Legislative Assembly as a
Member of the BRS, contested and lost the Lok Sabha Election
as a Member of the INC but is still enjoying the Office of MLA,
having contested for the same while belonging to the BRS
party. It is submitted that if such a situation is permitted to
continue only on account of not deciding the disqualification
petitions within a particular period, it would be nothing less
than playing a fraud on democracy. The learned Senior
Counsel therefore reiterated that this is a fit case wherein this
16
Court should direct the Speaker to decide the disqualification
petitions within a specified period of time.
22. Before we proceed to decide the matter on merits, we find
it appropriate to revisit how the matter has reached the present
stage.
23. When the matter was firstly listed on 31st January 2025,
taking into consideration that the learned Division Bench of
the High Court had directed the disqualification proceedings
to be decided within a “reasonable period”, we had asked Shri
Rohatgi to take instructions from the Speaker as to within how
much time he would decide the disqualification proceedings.
Thereafter, when the matter was listed on 10th February 2025,
Shri Rohatgi submitted that he was not in a position to make
any statement in that regard. The matter, upon being
mentioned on 20th February 2025, was directed to be kept for
hearing on 4th March 2025. On the said date, when the matters
were called out and after we had heard Shri Sundaram and
Shri Naidu, learned Senior Counsel for the
Appellants/Petitioners at some length, an objection was raised
by Dr. Singhvi and Shri Rohatgi, learned Senior Counsel
appearing for the Respondents that no “formal notice” was
17
issued in these matters and therefore the respondents could
not file any reply. It will be relevant to refer to paras 5 and 6 of
the order dated 4th March 2025, which read thus:
“5. No doubt that the objection is hypertechnical,
however we propose to adjourn the matter so that
no objection is raised at a subsequent point of time
by the respondents that the petitions were decided
without following the principles of natural justice.
6. We, therefore, issue a formal notice to the
respondents in both the matters, returnable on
25.03.2025.”
24. Thereafter, the matter was called on 25th March 2025, 2nd
April 2025 and finally on 3rd April 2025 when we concluded
the hearing.
25. In this background, we proceed to consider the rival
contentions.
DISCUSSION AND ANALYSIS
26. To appreciate the rival submissions, it would be apposite
that we first take a close look at the judicial decisions which
hold the field.
27. The Constitution Bench of this Court, in the case of
Kihoto Hollohan (supra), had an occasion to consider the
constitutional validity of the Tenth Schedule of the
Constitution which was introduced by the Constitution (Fifty-
18
second Amendment) Act, 1985. The Constitution Bench, in the
said case specifically considered the validity and scope of
Paragraphs 6 and 7 of the Tenth Schedule to the Constitution.
It will be relevant to refer to the following observations of this
Court:
“13. …. A political party goes before the electorate
with a particular programme and it sets up
candidates at the 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.”
[emphasis supplied]
28. This Court, amongst other questions, framed the
following two questions for its consideration:
“24. …..
(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.
19
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’ 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.
29. One of the arguments that was advanced before this
Court was that the concept of “finality” given to the decision of
the Speaker excluded the court’s jurisdiction. This Court
therefore considered the question as to whether the word
“final” in paragraph 6(1) of the Tenth Schedule rendered the
decision of the Speaker immune from judicial review. The
majority judgment rendered by M.N. Venkatachaliah, J. (as His
Lordship then was), after referring to various earlier judgments
of this Court, observed thus:
“94. It is, therefore, inappropriate to claim that the
determinative jurisdiction of the Speaker or the
Chairman in the Tenth Schedule is not a judicial
power and is within the non-justiciable legislative
area. The classic exposition of Issacs J.,
in Australian Boot Trade Employees
Federation v. Whybrow & Co. [(1910) 10 CLR 266,
317] as to what distinguishes a judicial power from20
a legislative power was referred to with the
approval of this Court in Express Newspaper (P)
Ltd. v. Union of India [AIR 1958 SC 578, 611 : 1959
SCR 12 : (1961) 1 LLJ 339] . Issacs, J., stated:
(CLR p. 317 quoted at AIR p. 611)
“If the dispute is as to the relative rights
of parties as they rest on past or present
circumstances, the award is in the
nature of a judgment, which might have
been the decree of an ordinary judicial
tribunal acting under the ordinary
judicial power. There the law applicable
to the case must be observed. If,
however, the dispute is as to what shall
in the future be the mutual rights and
responsibilities of the parties — in other
words, if no present rights are asserted
or denied, but a future rule of conduct
is to be prescribed, thus creating new
rights and obligations, with sanctions
for non-conformity — then the
determination that so prescribes, call it
an award, or arbitration, determination,
or decision or what you will, is
essentially of a legislative character,
and limited only by the law which
authorises it. If, again, there are neither
present rights asserted, nor a future
rule of conduct prescribed, but merely a
fact ascertained necessary for the
practical effectuation of admitted rights,
the proceeding, though called an
arbitration, is rather in the nature of an
appraisement or ministerial act.”
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” in21
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 judicial scrutiny of the decision of the
Speaker or Chairman exercising power under
Paragraph 6(1) of the Tenth Schedule.
98. But then is the Speaker or the Chairman
acting under Paragraph 6(1) a Tribunal? “All
tribunals are not courts, though all courts are
tribunals”. The word “courts” is used to designate
those tribunals which are set up in an organised
State for the Administration of Justice. By
Administration of Justice is meant the exercise of
judicial power of the State to maintain and uphold
rights and to punish “wrongs”……..”
[emphasis supplied]
30. It can thus be seen that this Court, in unequivocal terms,
has held that it was inappropriate to claim that the
determinative jurisdiction of the Speaker/Chairman in the
22
Tenth Schedule to the Constitution was not a judicial power
and was within the non-justiciable legislative area. This Court,
in no unclear terms, held that the power to decide disputed
disqualification under Paragraph 6(1) of the Tenth Schedule to
the Constitution was pre-eminently of a judicial complexion.
This Court, thereafter, referred to the provision of
Articles 122(1) and 212(1) of the Constitution and the fiction
in Paragraph 6(2) of the Tenth Schedule to the Constitution.
This Court observed that these provisions attract immunity
from mere irregularities of procedures. Then, in paragraph 98,
this Court posed a question as to whether the
Speaker/Chairman, acting in Paragraph 6(1) of the Tenth
Schedule to the Constitution, is a Tribunal or not.
31. Thereafter, this Court referred to various judgments
distinguishing between the Courts and Tribunals and observed
thus:
“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.”
32. It can thus be seen that this Court, in unequivocal terms,
has held that the Speaker/Chairman, acting under Paragraph
6(1) of the Tenth Schedule to the Constitution is a Tribunal.
23
The Constitution Bench thereafter insofar as Questions (E) and
(F) are concerned, came to the following conclusion:
“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.
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. The24
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 Tenth25
Schedule, judicial review should not
cover any stage prior to the making of a
decision by the Speakers/Chairmen.
Having regard to the constitutional
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.”
[emphasis supplied]
33. The Constitution Bench therefore held that in light of the
decisions referred to above and the nature of function that was
exercised by the Speaker/Chairman under Paragraph 6 of the
Tenth Schedule to the Constitution, the scope of judicial review
under Articles 136, 226 and 227 of the Constitution in respect
of an order passed by the Speaker/Chairman under
Paragraph 6 of the Tenth Schedule to the Constitution would
be confined to jurisdictional errors only i.e., infirmities based
on violation of constitutional mandate, mala fides, non-
compliance with rules of natural justice and perversity.
34. This Court thereafter held that in view of the limited
scope of judicial review on account of the finality clause in
Paragraph 6 of the Tenth Schedule to the Constitution and
26
having regard to the constitutional intendment and the status
of the repository of the adjudicatory power i.e., the
Speaker/Chairman, judicial review could not 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. It held that any interference would not be
permissible at an interlocutory stage of the proceedings.
This Court, however, excluded the cases where disqualification
or suspension was imposed during the pendency of the
proceedings and such disqualification or suspension was likely
to have grave, immediate and irreversible repercussions and
consequences.
35. In the present case, heavy reliance is sought to be placed
on paragraph 110 of Kihoto Hollohan (supra) by both the
sides. On the side of the Appellants/Petitioners, it is contended
that judicial restriction against Quia Timet actions does not
interdict in any manner against the judicial review in aid of
Speaker/Chairman to arrive at a prompt decision of the
disqualification petition. Per contra, it is argued on behalf of
the Respondents that no interference would be warranted by
27
the High Court or this Court at any time prior to the final
decision being rendered by the Speaker/Chairman.
36. Insofar as Shri Rohatgi’s submission that the High
Courts cannot exercise powers under Article 227 of the
Constitution is concerned, the said contention, in our view,
lacks merit inasmuch as in Paragraph 109 of Kihoto
Hollohan (supra) itself, the Constitution Bench has referred
to Article 227 along with Articles 136 and 226 of the
Constitution. In any case, the difference between the
jurisdictional exercise under Article 227 of the Constitution
and the jurisdiction of the High Court to issue a writ of
certiorari under Article 226 of the Constitution is very thin as
per the judgment of this Court in the case of Surya Devi Rai
v. Ram Chander Rai and Others13.
37. The next judgment of the Constitution Bench which is
required to be considered by us is the case of Rajendra Singh
Rana (supra).
38. In the said case, on 27th August 2003, 13 MLAs from the
Bahujan Samaj Party14 approached the Hon’ble Governor of
the State of Uttar Pradesh and requested him to call upon the
13
(2003) 6 SCC 675
14
Hereinafter referred to as “BSP”.
28
Leader of Opposition i.e., Samajwadi Party to form the
Government. This was despite the fact that the ruling coalition
Government led by BSP had recommended the dissolution of
the Assembly on 25th August 2003. The leader of BSP
Legislature Party on 4th September 2003 filed a petition in
terms of Article 191 read with Paragraph 2 of the Tenth
Schedule of the Constitution for disqualification of the said 13
MLAs. Thereafter, on 6th September 2003, 37 MLAs from BSP,
including the original 13 MLAs, claimed to have “split” from
the BSP. They claimed protection under Paragraph 3 of the
Tenth Schedule to the Constitution since they formed one-
third of the BSP (37 out of 109). The Speaker, instead of
deciding the disqualification petition relating to the original 13
MLAs, decided that the said 37 MLAs had met the
requirements of Paragraph 3 of the Tenth Schedule to the
Constitution and therefore did not incur disqualification under
Paragraph 2 of the Tenth Schedule to the Constitution.
However, the Speaker had kept the petition relating to
disqualification of original 13 MLAs pending.
39. Challenging the decision of the Speaker in accepting this
split while keeping the issue with regard to the disqualification
29
of the original 13 MLAs pending, a writ petition came to be filed
before the Allahabad High Court. The matter was adjourned in
the High Court on a number of occasions. At the same time,
the petition for disqualification of the original 13 MLAs which
was pending was adjourned by the Speaker on the ground that
the matter was pending before the High Court. The said
petition was pending before the High Court from 29th
September 2003 on one pretext or the other. In the meantime,
on 7th September 2005, the Speaker passed an order rejecting
the petition filed for disqualification of the original 13 MLAs.
Thereafter, the appellants therein moved an application for
amendment of the writ petition before the High Court. It
appears that there were certain unpleasant happenings as
recorded in paragraph 9 of the said judgment between two
Members of the Bench. Thereafter, the matter was assigned to
the Full Bench. Ultimately, the matter was decided on 14th
February 2007. The learned Chief Justice had dismissed the
appeals while the other two learned Judges quashed the order
of the Speaker and directed him to reconsider the matter with
particular reference to the petition for disqualification of the
original 13 MLAs. The learned Chief Justice took the view that
30
the Speaker was justified in finding a split on the basis of a
claim of split in the original political party and one-third
members of the legislature party separating, by taking into
account all events up to the time of his taking a decision on
the question of split. However, the other two learned Judges
took a view that the Speaker was in error in not deciding the
petition seeking disqualification of the original 13 MLAs first
and in proceeding to decide the application for recognition of a
split made by the 37 MLAs which included the original 13
MLAs already subject matter of the disqualification petition
before him.
40. Aggrieved by the decision of the Full Bench of the High
Court to remit the matter to the Speaker, the set of 37 MLAs
filed various appeals before this Court. There was also an
appeal before this Court by the original writ petitioner wherein
it was contended that instead of remanding the matter, the
High Court, on the basis of pleadings and material, ought to
have allowed the writ petition and disqualified the original 13
MLAs. This is how the matter reached this Court.
41. Before this Court, it was sought to be urged on behalf of
the 37 MLAs who claimed to have split from the BSP that the
31
two learned Judges who had set aside the decision of the
Speaker had exceeded their jurisdiction. A reliance was sought
to be placed on the judgment of this Court in the case of
Kihoto Hollohan (supra) in support of the said argument.
Justice P.K. Balasubramanyan, speaking for the Constitution
Bench, however, observed thus:
“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.”
42. It can thus be seen that the Constitution Bench came to
the conclusion that since the Speaker in the original order had
32
left the question of disqualification undecided, he had failed to
exercise the jurisdiction conferred on him by Paragraph 6 of
the Tenth Schedule to the Constitution. This Court held that
such a failure to exercise jurisdiction could not be held to be
covered by the shield of Paragraph 6 of the Tenth Schedule to
the Constitution. This Court also came to a finding that the
Speaker had committed an error that goes to the root of the
matter or an error that was so fundamental that it would
enable this Court to interfere with the order of the Speaker
even under a limited judicial review.
43. After observing the aforesaid, this Court itself, in the
peculiar facts and circumstance, proceeded to decide the
question of disqualification. This Court took note of the fact
that the term of the Assembly was coming to an end and an
expeditious decision by the Court was warranted for protection
of the constitutional scheme and constitutional values. This
Court found that the very fact that the original 13 MLAs gave
a letter to the Hon’ble Governor requesting him to call upon
the Leader of Opposition to form the Government was
sufficient enough to incur a disqualification under Paragraph
2(1)(a) of the Tenth Schedule to the Constitution.
33
This Court therefore took an unprecedented step of holding
those 13 MLAs as disqualified.
44. The last of the Constitution Bench judgments which is
required to be considered for the present purpose is that of
Subhash Desai (supra).
45. Insofar as the said case is concerned, the Constitution
Bench firstly held that the finding of another Constitution
Bench in the case of Nabam Rebia and Bamang Felix v.
Deputy Speaker, Arunachal Pradesh Legislative Assembly
and Others, to the effect that a notice for the removal of a
Speaker restricts him from adjudicating disqualification
proceedings under the Tenth Schedule to the Constitution,
was in conflict with another Constitution Bench judgment in
the case of Kihoto Hollohan (supra) and therefore referred the
same to a larger Bench of seven Judges.
46. Thereafter, it can be seen that one of the issues framed
by this Court in the reference order leading to the Constitution
Bench judgment in the said case of Subhash Desai (supra)
was as under:
34
“32. …… The following questions were framed for
consideration:
…….
32.2. (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;”
47. The petitioners therein had urged before this Court that
this Court itself should decide the disqualification petitions at
the first instance. While considering the argument in that
regard, the Constitution Bench observed thus:
“76. In Kihoto Hollohan [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] ,
this Court held that the Speaker is a Tribunal for
the purposes of the Tenth Schedule. Therefore, the
exercise of power under the Tenth Schedule is
subject to the jurisdiction of courts under Articles
136, 226 and 227 of the Constitution. This Court
further observed that the finality clause contained
in Para 6(2) did not completely exclude the
jurisdiction of courts. However, it was held that
such a clause limits the scope of judicial review
because the Constitution intended the Speaker or
the Chairman to be “the repository of adjudicatory
powers” under the Tenth Schedule. This Court
held that judicial review is not available at a stage
prior to the decision of the Speaker or Chairman,
save in certain exceptional circumstances detailed
in that case. Thus, Kihoto Hollohan [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2) SCC 651]
makes it evident that the exclusive power to decide
the question of disqualification under the Tenth
Schedule vests with the Speaker or Chairman of
the House.
……………
35
80. This Court should normally refrain from
deciding disqualification petitions at the first
instance, having due regard to constitutional
intendment. The question of disqualification
ought to be adjudicated by the constitutional
authority concerned, namely, the Speaker of
the Legislative Assembly, by following the
procedure prescribed. Disqualification of a
person for being a Member of the House has
drastic consequences for the Member
concerned and by extension, for the citizens of
that constituency. Therefore, any question of
disqualification ought to be decided by
following the procedure established by law.
In Kshetrimayum Biren Singh [Kshetrimayum
Biren Singh v. Speaker, Manipur Legislative
Assembly, (2022) 2 SCC 759] , a three-Judge
Bench of this Court set aside the order of the
Speaker disqualifying MLAs under Para 2(1)(a) for
not granting an opportunity to them to lead
evidence and present their case. The Speaker was
directed to decide the disqualification petitions
afresh by complying with the principles of natural
justice. Even in cases where the Speaker
decides disqualification petitions without
following the procedure established by law, this
Court normally remands the disqualification
petitions to the Speaker. Therefore, absent
exceptional circumstances, the Speaker is the
appropriate authority to adjudicate petitions
for disqualification under the Tenth Schedule.
…………………
82. In a parliamentary democracy, the Speaker is
an officer of the Assembly. The Speaker performs
the function of presiding over the proceedings of
the House and representing the House for all
intents and purposes. In Kihoto Hollohan [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] , it
was contended that the Speaker does not
represent an independent adjudicatory machinery
since they are elected by the majority of the
36
Assembly. Rejecting the argument, this Court
emphasised that the office of the Speaker is held
in high respect in parliamentary tradition. The
Court held that the Speaker embodies propriety
and impartiality and that it was therefore
inappropriate to express distrust in the office of the
Speaker : (SCC p. 714, para 118)
“118. It would, indeed, be unfair to the
high traditions of that great office to say
that the investiture in it of this
jurisdiction would be vitiated for
violation of a basic feature of
democracy. It is inappropriate to express
distrust in the high office of the Speaker,
merely because some of the Speakers
are alleged, or even found, to have
discharged their functions not in keeping
with the great traditions of that high
office. The robes of the Speaker do
change and elevate the man inside.”
(emphasis supplied)
……………….
84. A similar submission was made before this
Court in Keisham Meghachandra Singh v. Manipur
Legislative Assembly [Keisham Meghachandra
Singh v. Manipur Legislative Assembly, (2021) 16
SCC 503 : 2020 SCC OnLine SC 55] , wherein it
was submitted that this Court should issue a writ
of quo warranto against the appointment of an
MLA as a minister when disqualification petitions
are pending. Rejecting the submission, this Court
held as under : (SCC pp. 513 & 527, paras 10 &
33)
“10. 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
37
him. … In these circumstances, he has
exhorted us to issue a writ of quo
warranto against Respondent 3 stating
that he has usurped a constitutional
office, and to declare that he cannot do
so. …
***
33. It is not possible to accede to Shri
Sibal’s submission that this Court issue
a writ of quo warranto quashing the
appointment of Respondent 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 Rajendra Singh Rana [Rajendra
Singh Rana v. Swami Prasad Maurya,
(2007) 4 SCC 270] . In the present case,
the life of the Legislative Assembly
comes to an end only in March 2022
unlike in Rajendra Singh
Rana [Rajendra Singh Rana v. Swami
Prasad Maurya, (2007) 4 SCC 270]
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
38
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
proceedings to apply to this Court for
further directions/reliefs in the matter.”
85. The incumbent Speaker of the Maharashtra
Legislative Assembly has been duly elected by the
MLAs in terms of the procedure laid down under
the Maharashtra Assembly Rules, 1960. The
petitioners have referred to the decision of the
Speaker to cancel the recognition of Mr Sunil
Prabhu as the Chief Whip of the Shiv Sena on 3-7-
2022 to argue that the Speaker is biased and
impartial. The decision of the Speaker to cancel the
recognition of Mr Prabhu has also been challenged
in the instant proceedings. Even if this Court sets
aside the decision of the Speaker cancelling the
recognition of Mr Prabhu on merits, it would not
be a sufficient reason for this Court to decide the
disqualification petitions. We are also unable to
accept the alternative submission of the
petitioners to direct the Deputy Speaker to
adjudicate the question of disqualification for the
simple reason that the Maharashtra Legislative
Assembly has duly elected the Speaker, who has
been entrusted with the authority to decide
disqualification petitions under the Constitution.
The Deputy Speaker can perform the duties of the
Speaker only when the office of the Speaker is
vacant. [ Article 180 of the Constitution.] As
observed in Kihoto Hollohan [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2) SCC 651]
and Shrimanth Balasaheb Patil [Shrimanth
Balasaheb Patil v. Karnataka Legislative
Assembly, (2020) 2 SCC 595] , the Speaker is
expected to act fairly, independently, and
impartially while adjudicating the disqualification
39
petitions under the Tenth Schedule. Ultimately,
the decision of the Speaker on the question of
disqualification is subject to judicial review.
Therefore, this Court is of the opinion that the
Speaker of the Maharashtra Legislative
Assembly is the appropriate constitutional
authority to decide the question of
disqualification under the Tenth Schedule.”
[emphasis supplied]
48. Finally, in conclusion, this Court observed thus:
“213. In view of the discussion above, the following
are our conclusions:
…………….
213.2. This Court cannot ordinarily adjudicate
petitions for disqualification under the Tenth
Schedule in the first instance. There are no
extraordinary circumstances in the instant case
that warrant the exercise of jurisdiction by this
Court to adjudicate disqualification petitions. The
Speaker must decide disqualification petitions
within a reasonable period;
…………..”
49. It can thus be seen that even in the case of Subhash
Desai (supra), this Court reiterated the position that the
Speaker is a Tribunal for the purposes of the Tenth Schedule
to the Constitution and that the exercise of powers under the
Tenth Schedule to the Constitution was subject to the
jurisdiction of courts under Articles 136, 226 and 227 of the
Constitution. This Court reiterated that the finality clause
40
contained in Paragraph 6(2) of the Tenth Schedule to the
Constitution did not completely exclude the jurisdiction of
courts. This Court further reiterated that judicial review is not
available at a stage prior to the decision of the
Speaker/Chairman, save in certain exceptional
circumstances. The Constitution Bench held that this Court
should normally refrain from deciding disqualification
petitions at the first instance, having regard to the
constitutional intendment. It held that the question of
disqualification ought to be adjudicated by the constitutional
authority concerned i.e., the Speaker.
50. This Court also noticed that in the case of Rajendra
Singh Rana (supra), this Court decided to adjudicate the
disqualification petition since, the Speaker of the Legislative
Assembly had inter-alia failed to decide the same in a time-
bound manner and also took into consideration the necessity
of an expeditious decision.
51. Though the Constitution Bench also noticed the
judgment of three learned Judges in the case of Keisham
Meghachandra Singh (supra), it did not disapprove the view
taken in the said case and in subsequent paragraphs observed
41
that the Speaker should act fairly, independently, and
impartially while adjudicating the disqualification petitions
under the Tenth Schedule to the Constitution. This Court,
therefore, observed that the Speaker of the Maharashtra
Legislative Assembly was the appropriate constitutional
authority to decide the question of disqualification under the
Tenth Schedule to the Constitution which decision was
ultimately subject to judicial review.
52. Having considered the ratio of the Constitution Bench
judgments of this Court, we also find it appropriate to refer to
the judgment of the three learned Judges of this Court in the
case of Keisham Meghachandra Singh (supra).
53. In the said case, Respondent No.3, in one of the appeals,
contested as a candidate nominated and set up by the INC and
was duly elected as such. Immediately after declaration of the
results on 12th March 2017, said Respondent No. 3 along with
various BJP MLAs met the Hon’ble Governor of the State of
Manipur in order to stake a claim for forming a BJP-led
Government. On 15th March 2017, the Governor invited the
group led by the BJP to form the Government in the State.
Respondent No. 3, along with others, was sworn in as a
42
Minister in the BJP-led Government. 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. Since no action was taken on
any of the said petitions by the Speaker, a writ petition came
to be filed in July 2017 before the High Court of Manipur at
Imphal seeking a direction to the Speaker to decide the
disqualification petition within a reasonable time.
On 8th September 2017, the High Court observed that since
the issue as to whether a High Court can direct a Speaker to
decide a disqualification petition within a certain time-frame is
pending before a Bench of Five Judges of this Court, it was
unable to pass any order in the matter. Another writ petition
seeking disqualification of Respondent No. 3 met the same
fate. As a result, the writ petitioners preferred appeals by way
of special leave.
54. Since the facts in the present case are somewhat similar
to the facts in the case of Keisham Meghachandra Singh
(supra), we find it appropriate to refer to the arguments
advanced on behalf of the appellants therein which are
43
recorded in paragraph 10 of the said judgment and which read
thus:
“10. 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-
9-2018, 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 3 stating that
he has usurped a constitutional office, and to
declare that he cannot do so. For this purpose, he
has cited several 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
five Judges of this Court, yet, it is clear from a
reading of para 110 of Kihoto
Hollohan v. Zachillhu [Kihoto
Hollohan v. Zachillhu, 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 also44
strongly relied upon the observations of this Court
in Rajendra Singh Rana v. Swami Prasad
Maurya [Rajendra Singh Rana v. Swami Prasad
Maurya, (2007) 4 SCC 270] and exhorted us to
uphold the reasoning contained in the impugned
judgment [Mohd. Fajur Rahim v. Speaker, Manipur
Legislative Assembly, 2019 SCC OnLine Mani 127]
and then issue a writ of quo warranto against
Respondent 3.”
55. It will also be relevant to refer to paragraph 12 of the said
judgment which sets out the Reference Order made in the case
of S.A. Sampath Kumar (supra) referring the issue to a larger
Bench:
“12. Having heard the learned counsel for both the
parties, it is important to first set out the reference
order of this Court dated 8-11-2016 in S.A.
Sampath Kumar v. Kale Yadaiah [S.A. Sampath
Kumar v. Kale Yadaiah, (2021) 16 SCC 528] . A
Division Bench of this Court after referring
to Speaker, Haryana Vidhan Sabha v. Kuldeep
Bishnoi [Speaker, Haryana Vidhan
Sabha v. Kuldeep Bishnoi, (2015) 12 SCC 381] ,
and Speaker, Orissa Legislative Assembly v. Utkal
Keshari Parida [Speaker, Orissa Legislative
Assembly v. Utkal Keshari Parida, (2013) 11 SCC
794] , then held : (S.A. Sampath Kumar case [S.A.
Sampath Kumar v. Kale Yadaiah, (2021) 16 SCC
528] , SCC p. 532, paras 3-4)
“3. 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 Court45
in Kihoto Hollohan case [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2)
SCC 651] 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 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 para
110 of Kihoto Hollohan case [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2)
SCC 651] . 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
case [Kihoto Hollohan v. Zachillhu, 1992
Supp (2) SCC 651] .
4. The facts of the present case
demonstrate that disqualification46
petitions had been referred to the
Hon’ble Speaker of the Telangana State
Legislative Assembly on 23-8-2014, and
despite the hopes and aspirations
expressed by the impugned judgment
[Errabelli Dayakar Rao v. Talasani
Srinivas Yadav, 2015 SCC OnLine Hyd
418] , 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.””
56. It will also be relevant to refer to paragraph 13 of the said
judgment, which reads thus:
“13. We would have acceded to Mrs Madhavi
Divan’s plea that in view [S.A. Sampath
Kumar v. Kale Yadaiah, (2021) 16 SCC 528] 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 [Rajendra Singh
Rana v. Swami Prasad Maurya, (2007) 4 SCC 270]
and has already been answered. Unfortunately,
the decision contained in the aforesaid judgment
was not brought to the notice of the Division Bench
which referred [S.A. Sampath Kumar v. Kale
Yadaiah, (2021) 16 SCC 528] the matter to five
Hon’ble Judges of this Court, though Rajendra
Singh Rana [Rajendra Singh Rana v. Swami
Prasad Maurya, (2007) 4 SCC 270] was sought to
be distinguished in Kuldeep Bishnoi [Speaker,
Haryana Vidhan Sabha v. Kuldeep Bishnoi, (2015)47
12 SCC 381] , which was brought to the notice of
the Division Bench of this Court.”
57. It is pertinent to note that R.F. Nariman, J. who had
authored the judgment in the case of Keisham
Meghachandra Singh (supra) was also a Member of the
Bench which passed the Reference Order in the case of
S.A. Sampath Kumar (supra). A perusal of paragraph 13 of
the judgment in the case of Keisham Meghachandra Singh
(supra) would clearly reveal that the judgment in the case of
Rajendra Singh Rana (supra) was not brought to the notice
of the Bench that made the Reference Order.
58. This Court, in the said case, thereafter, extensively
referred to the Constitution Bench judgment in the cases of
Kihoto Hollohan (supra) and Rajendra Singh Rana (supra),
which we have already referred to hereinabove.
This Court, thereafter, observed thus:
“25. Indeed, the same result would ensue on a
proper reading of Kihoto Hollohan [Kihoto
Hollohan v. Zachillhu, 1992 Supp (2) SCC 651] .
Paras 110 and 111 of the said judgment when read
together would make it clear that what the finality
clause in Para 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 in48
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.
26. A quia timet action has been described
in Black’s Law Dictionary as follows:
“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.”
27. The leading judgment referred to insofar
as quia timet actions are concerned is the
judgment in Fletcher v. Bealey [Fletcher v. Bealey,
(1884) LR 28 Ch D 688 : 54 LJ Ch 424 : 52 LT 541]
. 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 : (Ch D p. 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,
49
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.”
28. This statement of the law has subsequently
been followed by recent English decisions reported
as London Borough of Islington v. Margaret
Elliott [London Borough of Islington v. Margaret
Elliott, 16 2012 EWCA Civ 56] (see para 30)
and Vastint Leeds BV v. Persons unknown [Vastint
Leeds BV v. Persons unknown, (2019) 4 WLR 2 :
2018 EWHC 2456 (Ch)] in which a quia
timet injunction was described in the following
terms : (Vastint Leeds BV case [Vastint Leeds
BV v. Persons unknown, (2019) 4 WLR 2 : 2018
EWHC 2456 (Ch)] , WLR para 26)
“26. Gee describes a quia
timet injunction in the following terms
[Gee, Commercial Injunctions, 6th Edn.
(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 [Fletcher v. Bealey, (1884)
LR 28 Ch D 688 : 54 LJ Ch 424 : 52 LT 541] was
referred to in approval in para 30 of the aforesaid
judgment.
29. The decision in Fletcher [Fletcher v. Bealey,
(1884) LR 28 Ch D 688 : 54 LJ Ch 424 : 52 LT 541]
was also referred to by this Court in Kuldip
Singh v. Subhash Chander Jain [Kuldip
Singh v. Subhash Chander Jain, (2000) 4 SCC 50]
as follows : (Kuldip Singh case [Kuldip
50
Singh v. Subhash Chander Jain, (2000) 4 SCC 50]
, SCC p. 55, para 6)
“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 [Fletcher v. Bealey
, (1884) LR 28 Ch D 688 : 54 LJ Ch 424
: 52 LT 541] , Pearson, J. explained the
law as to actions quia timet as follows :
(Ch D p. 698)
‘ … 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.’ ”
30. A reading of the aforesaid decisions, therefore,
shows that what was meant to be outside the pale
of judicial review in para 110 of Kihoto
Hollohan [Kihoto Hollohan v. Zachillhu, 1992 Supp
51
(2) SCC 651] 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. Paras 110 and 111 of Kihoto
Hollohan [Kihoto Hollohan v. Zachillhu, 1992
Supp (2) SCC 651] 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 such
disqualification do not deserve to be MPs/MLAs
even for a single day, as found in Rajendra
Singh Rana [Rajendra Singh Rana v. Swami
Prasad Maurya, (2007) 4 SCC 270] , if they
have infracted the provisions of the Tenth
Schedule.”
[emphasis supplied]
52
59. Thereafter, in paragraph 33 in the case of Keisham
Meghachandra Singh (supra), this Court considered and
rejected the contention of the appellants therein for deciding
the disqualification petition itself and observed that the facts
in the said case are not similar to the facts in the case of
Rajendra Singh Rana (supra). This Court also observed that
the life of the Legislative Assembly in the said case would come
to an end only in March 2022. It, therefore, granted relief to
the extent of directing the Speaker of the Manipur Legislative
Assembly to decide the disqualification petitions pending
before him within a period of four weeks from the date on
which that judgment was intimated to him. It also reserved a
remedy to the parties to approach the Court in the event the
decision was not taken within a period of four weeks.
60. Having considered the position of law as has been laid
down by this Court in various judgments, we will now consider
the issue that falls for consideration before us.
61. Noticing the evil of political defections, the Parliament
had found it appropriate to amend the Constitution by the
Constitution (Fifty-Second Amendment) Act, 1985 so as to
provide for the Tenth Schedule to the Constitution of India.
53
The Statement of Objects and Reasons of the Constitution
(Fifty-Second Amendment) Bill, 1984 reads thus:
“Statement of Objects and Reasons
The evil of political defections has been a matter of
national concern. If it is not combated, it is likely
to undermine the very foundations of our
democracy and the principles which sustain it.
With this object, an assurance was given in the
Address by the President to Parliament that the
Government intended to introduce in the current
session of Parliament an anti-defection Bill. This
Bill is meant for outlawing defection and fulfilling
the above assurance.”
62. By the said amendment, certain changes were made to
Articles 101, 102, 190 and 191. Most importantly, the Tenth
Schedule which provided for disqualification on the ground of
defection, came to be added by the said Amendment Act.
63. It will be relevant to note that, when the Bill came up for
discussion before both the Houses of Parliament, the question
as to “whether the adjudication of disqualification petitions
should be left to the discretion of the Speaker/Chairman or to
some other authority” was also extensively debated.
64. It will be relevant to refer to the speech of Shri A.K. Sen,
the then Law Minister, delivered on 30th January 1985 before
the Lok Sabha, which reads thus:
54
“Shri A.K. Sen – …… Once it goes outside the
control of the House, it will take years and years
for the court to come to a decision, because there
will be appeals and further appeals and the matter
will be forgotten, like the Anti-Defection Bills of the
past. Therefore, if we mean business, we must give
authority to decide this serious matter to the
Speaker or the chairman of the House concerned,
who has been elected by the majority vote of the
Hose concerned. With these words, I recommend
to the House the unanimous acceptance of this
Bill.”
65. It can thus be seen that the reason for entrusting this
important task to the Speaker/Chairman was that, once such
a disqualification petition goes outside the control of the
House, it might take years and years for the courts to come to
a decision due to appeals and further appeals ultimately
leading to the matter being forgotten.
66. It will be relevant to refer to the speech of the then
Member of Parliament Shri Rajesh Pilot, made during the same
Lok Sabha debate, which reads thus:
“Shri Rajesh Pilot – …….. I would also like to
make a submission that when we go through this
legislation and analyse it, there is a lurking fear
that the Speaker may have been given
authoritarian powers. The Speaker or the
Chairman is elected through due process and he
belongs to a party. He is elected on the ticket of a
particular party and when he seeks re-election, he
has to look to that party again. A legislation should
be brought in the Parliament that in future nobody
would contest against the Speaker and once his55
non-political character has been recognized, he
will have to sever all connections with his political
party so that nobody may contest election against
him. Then he will contest election as an
independent candidate and return as an
independent candidate to this House. Otherwise, if
such privileges are not given to the Speaker and he
is under pressure from the ruling party, it is feared
that the rights of the Opposition may be adversely
affected.”
67. The then learned Member of Parliament expressed his
fear that the Speaker may have been given authoritarian
powers. He expressed that the Speaker/Chairman belongs to
a particular party and is elected through due process. He also
expressed his fear that, such a Speaker/Chairman has to be
supported by that particular party when he seeks re-election.
He, therefore, suggested enacting a legislation providing for re-
election of the Speaker/Chairman without contest.
He expressed that it was necessary that the
Speaker/Chairman severs all connections with his political
party so that nobody would contest elections against him and
that he contests the election as an independent candidate and
return as an independent candidate to the House. The learned
Member of Parliament expressed that if such privileges were
not given to the Speaker and if he was under pressure from
56
the ruling party, the rights of the members of the Opposition
may be adversely affected.
68. It will also be relevant to refer to the speech made by one
of the Members Shri Priya Ranjan Das Munshi, wherein he
expressed his apprehension that the petition before the
Speaker could face undue delay, which reads thus:
“Shri Priya Ranjan Das Munshi : ……Now, in
regard to a dispute regarding a member, the
matter will be referred to the Presiding Officer, but
no time limit has been fixed. I would request in the
next session the time limit should be fixed within
which the Speaker has to announce his decision.
If he keeps it pending for three to four months, it
should not be allowed.”
69. The learned Member had expressed that no time limit had
been fixed for the Presiding Officer to decide the issue. He
suggested that a time-limit should be fixed, within which the
Speaker must announce his decision. He also expressed that
the Speaker/Chairman should not be allowed to keep the
matter pending for three to four months.
70. It will be relevant to refer to another extract from the
speeches of Shri A.K. Sen, the then Law Minister delivered
during the same debate, which reads thus:
57
“Shri A.K. Sen : …..The other questions are about
the Speaker’s authority. It was our clear intention
from the very beginning that we are not going to
allow this matter to be dilly-dallied and tossed
about in the courts of law or in the Election
Commission’s office. I had myself appeared in the
Courts along with late Kanhaiya Lal Mishra Ji for
winning our symbol. Babuji is there. He was the
President of our party then. We used to go very
regularly and Shri Siddhartha Shankar Ray was
assisting me at that time. But the time we won
back our symbol, it became worthless, because we
had already won the election not on a pair of
bullocks, but on a cow and a calf. Therefore, that
type of delay should not be tolerated any more. We
want a quick decision. If this Bill is to be effective,
and if defection is to be outlawed effectively, then
we must choose a forum which will decide the
matter fearlessly and expeditiously. This is the
only forum that is possible. With these words I
commend the Motion for consideration.”
71. It can therefore be seen that the only purpose of
entrusting the work of adjudicating the disqualification
petitions to the Speaker/Chairman was to avoid dilly-dallying
in the courts of law or the Election Commission’s office.
The then Law Minister, who was himself an eminent lawyer,
referred to a matter in which he had appeared before the courts
seeking restoration of his party’s rights to use a party symbol.
However, by the time his party’s right was restored by the
courts, his party had already won the election on another
symbol. The then Law Minister expressed that such a type of
58
delay should not be tolerated and that they wanted a quick
decision.
72. It can also be seen that the Parliament decided to entrust
the important question of adjudication of disqualification
petitions, on account of defection, to the Speaker/Chairman
expecting him to decide them fearlessly and expeditiously.
As can be seen from the speeches of the then Law Minister and
other Members, Parliament was conscious of the potential long
delays that could arise if the petitions were left to be decided
through court proceedings. To avoid such potential delays,
that would defeat the purpose of the Tenth Schedule, the
Parliament therefore intended to have a forum which
facilitated the quick disposal of the disqualification
proceedings.
73. With the experience of over 30 years of working of the
Tenth Schedule to the Constitution, the question that we will
have to ask ourselves is as to whether the trust which the
Parliament entrusted in the high office of the Speaker or the
Chairman of avoiding delays in deciding the issue with regard
to disqualification has been adhered to by the incumbents in
the high office of Speaker and the Chairman or not?
59
74. We need not answer this question, since the facts of the
various cases we have referred to hereinabove themselves
provide the answer.
75. Now, let us consider the submissions made on behalf of
the rival parties.
76. It has been argued on behalf of the respondents that in
view of the Reference made to a Bench of learned five Judges
in the case of S.A. Sampath Kumar (supra), the question as
to whether this Court can issue a direction to the Speaker to
decide the disqualification proceedings in a time-bound
manner should not be decided in the present proceedings. It
has also been argued on behalf of the respondents that this
Court cannot pass any order which would be in the nature of
Quia Timet action.
77. No doubt that the Bench of learned two-Judges of this
Court in the case of S.A. Sampath Kumar (supra) has referred
the question with regard to the issuance of directions to the
Speaker, to the Bench of learned five-Judges. However, in a
subsequent case of Keisham Meghachandra Singh (supra),
a Bench of learned three-Judges of this Court found that when
the Reference Order came to be passed in the case of S.A.
60
Sampath Kumar (supra), the judgment of the Constitution
Bench of this Court in the case of Rajendra Singh Rana
(supra) was not brought to the notice of the Division Bench of
this Court. It will also be relevant to note that R.F. Nariman,
J., who had authored the judgment in the case of Keisham
Meghachandra Singh (supra) was also a Member of the
Bench which passed the Reference Order in the case of S.A.
Sampath Kumar (supra).
78. Needless to state that in the case of Keisham
Meghachandra Singh (supra), this Court, after referring to
various earlier judgments of this Court, has directed the
Speaker of the Manipur Assembly to decide the disqualification
petitions within a period of three months from date of order.
79. In our considered view, the issue is no more res-integra.
80. The Constitution Bench in the case of Kihoto Hollohan
(supra), while considering the challenge to the constitutional
validity of the Tenth Schedule, has held that the power of the
Speaker/Chairman to decide disqualification petitions under
Paragraph 6(1) of the Tenth Schedule to the Constitution is
pre-eminently of a judicial complexion. In the majority
judgment, M.N. Venkatachaliah, J. (as His Lordship then was)
61
held that the proceedings of disqualification were, in fact, not
before the House, but only before the Speaker as a specially
designated authority. The decision under Paragraph 6(1) of the
Tenth Schedule to the Constitution was not the decision of the
House, nor was it subject to the approval by the House. The
decision operated independently of the House. It was therefore
held that the decision of the Speaker/Chairman exercising
power under Paragraph 6(1) of the Tenth Schedule to the
Constitution does not enjoy immunity from judicial scrutiny
under Articles 122 and 212 of the Constitution.
81. No doubt that the Constitution Bench in the case of
Kihoto Hollohan (supra) observed that the scope of judicial
review under Articles 136, 226 and 227 of the Constitution in
respect of an order passed by the Speaker/Chairman under
Paragraph 6(1) of the Tenth Schedule to the Constitution
would be confined to jurisdictional errors only i.e., infirmities
based on violation of constitutional mandate, mala fides, non-
compliance with rules of natural justice and perversity.
This Court also observed that judicial review would not be
available at a stage prior to the making of a decision by the
Speaker/Chairman and a Quia Timet action would not be
62
permissible. Further, it was observed that an interference
would not be permissible at an interlocutory stage of the
proceedings. However, this Court made an exception in respect
of cases where disqualification or suspension was imposed
during the pendency of the proceedings and such
disqualification or suspension was likely to have grave,
immediate and irreversible repercussions and consequences.
A heavy reliance is sought to be placed on the aforesaid
observations by the Respondents.
82. It can be seen from the judgment of the Constitution
Bench in the case of Kihoto Hollohan (supra) that what was
contemplated by not permitting a Quia Timet action was to
prevent the passing of an order which would have the effect of
protracting, interfering or delaying the proceedings pending
before the Speaker/Chairman. At that point of time, the
Constitution Bench was not expected to anticipate that, in the
future, situations may arise where the high constitutional
functionaries, like the Speaker/Chairman, would keep the
proceedings pending for years together and permit them to die
a natural death at the end of the tenure of the members facing
63
such disqualification proceedings. However, such situations
have subsequently come before this Court in various cases.
83. A glaring example was the case of Rajendra Singh Rana
(supra) which came before the Constitution Bench of this
Court. We have already narrated the facts of the said case. In
the said case, though the proceedings of disqualification and
the split were pending since 4th September 2003 and 6th
September 2003 respectively, the Speaker chose not to decide
the disqualification petition relating to the original 13 MLAs
but decided the question of split under Paragraph 3 of the
Tenth Schedule to the Constitution. Meanwhile, the petition
regarding the disqualification of the original 13 MLAs was kept
pending. The pendency of the writ petition before the
Allahabad High Court was taken as one of the grounds by the
Speaker for not deciding the proceedings pending before him.
Subsequently, the matter was heard by a Full Bench of the
Allahabad High Court. In the Full Bench, the writ petition was
dismissed by the learned Chief Justice, while the other two
learned Judges of the Bench took a view that the Speaker was
in error in not deciding the petition seeking disqualification of
the original 13 MLAs first, and instead, directly deciding the
64
application for recognition of a split made by the 37 MLAs,
which included the original 13 MLAs. Finally, the matter
reached this Court. The Constitution Bench of this Court
ultimately held that the Speaker had committed an error that
goes to the root of the matter or an error that was so
fundamental, that even under a limited judicial review, the
order of the Speaker had to be interfered with.
84. This Court took into consideration the glaring facts in the
case. It found that the term of the Assembly was coming to an
end and an expeditious decision by the Court was warranted
for the protection of the constitutional scheme and
constitutional values. This Court further found that the very
fact that the original 13 MLAs had given a letter to the Hon’ble
Governor requesting him to call upon the Leader of Opposition
to form the Government was a ground sufficient enough to
incur disqualification under Paragraph 2(1)(a) of the Tenth
Schedule to the Constitution. This Court therefore took an
unprecedented step of holding those 13 MLAs as disqualified.
85. The view taken by another Constitution Bench of this
Court in the case of Subhash Desai (supra) is consistent with
the decisions of the earlier Constitution Bench.
65
86. This Court, in the case of Subhash Desai (supra), held
that the Speaker of the Maharashtra Legislative Assembly was
the appropriate constitutional authority to decide the question
of disqualification under the Tenth Schedule to the
Constitution. It was held that there were no extraordinary
circumstances in the said case that warranted the exercise of
jurisdiction by this Court to adjudicate disqualification
petitions in the first instance. This Court therefore held that
the Speaker must decide disqualification petitions within a
reasonable period. It is to be noted that though the
Constitution Bench in the case of Subhash Desai (supra) had
noticed the judgment of three learned Judges in the case of
Keisham Meghachandra Singh (supra), it did not disapprove
the view taken in the said case. On the contrary, it observed
that the Speaker should act fairly, independently, and
impartially while adjudicating the disqualification petitions
under the Tenth Schedule to the Constitution.
87. We have also extensively referred to the judgment of
learned three Judges in the case of Keisham Meghachandra
Singh (supra). This Court, after referring to the earlier
judgments, found that what was meant by passing an order in
66
Quia Timet action in the case of Kihoto Hollohan (supra) was
passing an order injuncting the Speaker from making a
decision in the disqualification petitions pending before him. It
held that it did not, 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 to
the Constitution. It was observed that the Speaker, in acting
as a Tribunal was bound to decide the disqualification
petitions within a reasonable period.
88. In the present case, the Appellants in the lead matter
namely Padi Kaushik Reddy and Kuna Pandu Vivekanand filed
separate disqualification petitions before the Telangana State
Legislative Assembly on 18th March 2024, 2nd April 2024 and
8th April 2024.
89. Since the petitions for disqualification filed by the
Appellants/Petitioners were kept pending before the Speaker,
writ petitions were filed before the High Court.
90. The learned Single Judge, vide judgment and order dated
9th September 2024, had only asked the Speaker for fixing a
schedule of hearing (filing of pleadings, documents, personal
hearing etc.) within a period of four weeks. The learned Single
67
Judge further clarified that, if nothing was heard within four
weeks, then the matter would be reopened suo motu. Being
aggrieved by the order of the learned Single Judge, the
Secretary of the Telangana Legislative Assembly preferred
three separate appeals. Vide impugned judgment and final
order dated 22nd November 2024, however, the learned
Division Bench of the High Court reversed the order of the
learned Single Judge.
91. When the matter was firstly listed on 31st January 2025
before this Court, taking into consideration that the learned
Division Bench of the High Court had directed the
disqualification proceedings to be decided within a “reasonable
period”, we had asked Shri Rohatgi, learned Senior Counsel for
the Respondents to take instructions from the Speaker as to
within how much time would the disqualification proceedings
be decided by him. Thereafter, when the matter was listed on
10th February 2025, Shri Rohatgi submitted that he was not in
a position to make any statement in that regard. Thereafter,
upon the matter being mentioned on 20th February 2025, it
was directed to be kept for hearing on 4th March 2025. On the
said date, after we had heard Shri Sundaram and Shri Naidu,
68
learned Senior Counsel for the Appellants/Petitioners at some
length, a hyper technical objection was raised by Dr. Singhvi
and Shri Rohatgi, learned Senior Counsel appearing for the
Respondents that no “formal notice” was issued in these
matters and therefore the respondents could not file any reply.
Though we found the objection to be totally hyper technical, in
order to avoid any complications at a subsequent point of time,
where a ground could be raised by the respondents claiming
that the petitions were decided without following the principles
of natural justice, we issued a formal notice to the respondents
returnable on 25th March 2025. It is to be noted that the
Speaker had issued notices to the MLAs pertaining to the lead
matter only on 16th January 2025 i.e., on the next day after
the lead matter was filed before this Court on 15th January
2025. Similarly, notices were issued to the remaining MLAs
pertaining to the connected writ petition on 4th February 2025
i.e., on the next day after the connected matters were heard for
the first time by this Court on 3rd February 2025.
92. It could thus be seen that the Speaker did not even find
it necessary to issue notices in the petitions filed by the present
petitioners for a period of more than seven months and only
69
after the proceedings were filed before this Court, did the
Speaker find it necessary to issue notice.
93. The question, therefore, that we ask ourselves is as to
whether the Speaker has acted in an expeditious manner,
when expedition was one of the main reasons, why the
Parliament had entrusted the important task of adjudicating
disqualification petitions to the Speaker/Chairman.
Non-issuance of any notice for a period of more than seven
months and issuing notice only after either the proceedings
were filed before this Court, or after this Court had heard the
matter for the first time cannot by any stretch be envisaged as
acting in an expeditious manner.
94. Though, we do not possess any advisory jurisdiction, it is
for the Parliament to consider whether the mechanism of
entrusting the Speaker/Chairman the important task of
deciding the issue of disqualification on the ground of
defection, is serving the purpose of effectively combating
political defections or not? If the very foundation of our
democracy and the principles that sustain it are to be
safeguarded, it will have to be examined whether the present
mechanism is sufficient or not. However, at the cost of
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repetition, we observe that it is for the Parliament to take a call
on that.
95. In light of the facts of the present case, however, a failure
to issue any direction to the Speaker, in our view, would
frustrate the very purpose for which the Tenth Schedule has
been brought in the Constitution. If we do not issue any
direction, it will amount to permitting the Speaker to repeat
the widely criticized situation of “operation successful, patient
died”.
96. In any event, we find that there was absolutely no
occasion for the learned Judges of the Division Bench of the
High Court to have interfered with the well-reasoned order of
the learned Single Judge, as learned Single Judge had only
asked the Speaker to fix a schedule of hearing (filing of
pleadings, documents, personal hearing etc.) within a period
of four weeks. The learned Single Judge had not even issued
any direction to decide the disqualification proceedings within
a time-bound period. We, therefore, find that the Division
Bench of the High Court has erred in interfering with the order
of the learned Single Judge of the High Court.
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97. We further find that as a matter of fact, there was no
occasion for the Secretary, Telangana Legislative Assembly to
have challenged the order passed by the learned Single Judge
inasmuch as nothing adverse could be found in the said order.
98. Next, it was sought to be urged on behalf of the appellants
that taking into consideration the glaring facts in the present
case, we ourselves should decide the question with regard to
the disqualification as was done by the Constitution Bench of
this Court in the case of Rajendra Singh Rana (supra).
99. In that respect, it is pertinent to note that all the
judgments of the Constitution Bench, right from Kihoto
Hollohan (supra) to Subhash Desai (supra), consistently hold
that the Speaker is the authority who should decide the issue
with regard to disqualification at the first instance.
We are, therefore, not inclined to accede to the said request.
We, however, find it appropriate to direct the Speaker to decide
the petitions pending before it within a stipulated period.
100. We may clarify that we are inclined to do so in view of the
specific finding of the Constitution Bench of this Court in the
cases of Kihoto Hollohan (supra) and Subhash Desai
(supra), that the Speaker, while acting as an adjudicating
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authority in Paragraph 6(1) of the Tenth Schedule to the
Constitution, acts as a Tribunal amenable to the jurisdiction
of the High Court under Articles 226 and 227 of the
Constitution and of this Court under Article 136 of the
Constitution. While doing so, we are also reminded of the
finding of the Constitution Bench that the Speaker/Chairman,
while acting as an adjudicating authority under Paragraph 6
of the Tenth Schedule to the Constitution does not enjoy the
constitutional immunity as available either under Article 122
or 212 of the Constitution.
101. We are therefore inclined to allow the present
appeals/petition.
102. In the result, we pass the following order:
(i) The present appeals/petition are allowed;
(ii) The impugned judgment and final order dated 22nd
November 2024 passed by the Division Bench of the
High Court is quashed and set aside;
(iii) We direct the Speaker to conclude the disqualification
proceedings pending against the 10 MLAs pertaining
to the present appeals/petition as expeditiously as
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possible and in any case, within a period of threemonths from the date of this judgment; and
(iv) We further direct that the Speaker would not permit
any of the MLAs who are sought to be disqualified to
protract the proceedings. In the event, any of such
MLAs attempt to protract the proceedings,
the Speaker would draw an adverse inference against
such of the MLAs.
103. Pending application(s), if any, shall stand disposed of.
104. In the facts and circumstances, no order as to costs.
…………………………CJI
(B.R. GAVAI)
………………………………………J
(AUGUSTINE GEORGE MASIH)
NEW DELHI;
JULY 31, 2025.
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