On 10 January this year, in a huge setback to Thackeray, Speaker Rahul Narwekar rejected the disqualification petitions against 30 Shiv Sena MLAs from both factions and accepted Bharat Gogawale of the Shinde group as the authorised whip. The petition challenging Narwekar’s decision on Shinde MLAs has been pending in the Supreme Court since January this year.

Meanwhile, the feud between rival factions of the NCP also returned to the Supreme Court in March this year, when Jayant Patil, a leader of the Sharad Pawar faction, challenged the Maharashtra speaker’s decision not to disqualify MLAs from its rival Ajit Pawar group for joining hands with the BJP and Shinde Sena in the Mahayuti government.

The court issued notice on this petition on 29 July and further tagged it with the petitions seeking disqualification of MLAs of the Shinde-led faction.

However, both these petitions are set to be rendered infructuous if they are not decided before the ensuing elections because a 2019 Supreme Court judgment says lawmakers can only be disqualified till they are re-elected again to the House.

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‘Blame the lawyers’

Commenting on the delay in deciding disqualification petitions, senior advocate Saurabh Kirpal told ThePrint that while the Supreme Court has set a deadline of three months for Speakers to decide disqualification petitions, “the courts will have to lead by example”.

“There is no point in telling the speaker that you decide it fast, but when it comes to us, we will decide at a different space,” he said, adding, “We often say that bail petitions are matters of liberty, and you must hear them with urgency. Well, so is the matter as fundamental as disqualification petitions or election petitions, as the very basis of democracy.”

Meanwhile, senior advocate Gopal Sankarnarayanan asserted that the “lion’s share of the blame” for such delay often falls on the lawyers and not the judges.

“When big political parties are involved, they are going to engage big teams of lawyers, many of whom have political affiliations and inclination. These lawyers (including very often senior counsel) do their best to filibuster, to delay hearings, to seek accommodation for various reasons. When you have all these issues, then you are bound to have delays, and you can’t blame the court,” he told ThePrint.

‘Pained’ by delays

In fact, back in November 2020, senior advocate Kapil Sibal also raised concerns over the delay in hearing disqualification matters before the Supreme Court.

Sibal, representing Madhya Pradesh Congress MLA Vinay Saxena, complained about the speaker not having decided on disqualification pleas against 22 MLAs whose defection to the BJP led to the fall of the Kamal Nath-led government and the formation of a BJP government led by Shivraj Singh Chouhan in March 2020 in its stead.

According to court records, the petition was filed on 7 July, 2020, but notice was issued on it a month later, on 17 August. The petition also demanded a restriction on 12 of the 22 rebel MLAs, who were inducted into the Council of Ministers by Chouhan, from functioning as ministers till the disqualification pleas against them were decided.

The matter came up three more times in 2020—on 22 September, 6 October, and 4 November. In the 22 September hearing, Saxena’s lawyer told the court that the disqualification petitions were pending with the speaker since 12 March that year. The court then sought a response from the Madhya Pradesh Assembly speaker on the petition.

On the last date of the hearing, Sibal informed the court that the matter had become infructuous because by-elections to 28 seats allowed these MLAs to contest afresh on BJP tickets.

“Delay has rendered the entire case infructuous. Matters like this become infructuous because requests are made in court for time [seeking of adjournments]…There should be some element of urgency shown in cases concerning disqualification… Disqualification cases need to be taken up with some urgency,” Sibal was quoted as saying.

In response, the Hindustan Times reported, then Chief Justice of India S.A. Bobde retorted, “Time is sought by both sides. Even you ask for adjournment.”

The deadlines

In January 2020, when the Supreme Court set an upper limit of three months for speakers to act on disqualification petitions, the move was hailed as one that would ensure enforcement of the anti-defection law in letter and spirit.

However, a month later, the top court did not set a deadline for Tamil Nadu Assembly Speaker P. Dhanapal when it disposed of an appeal filed by the Dravida Munnetra Kazhagam (DMK) on the disqualification of 11 All India Anna Dravida Munnetra Kazhagam (AIADMK) MLAs—including former deputy chief minister O. Panneerselvam—for voting against then Chief Minister Edappadi K. Palaniswami in a confidence motion in 2017.

The disqualification petitions against the MLAs had been pending since March 2017. The Madras High Court in April 2018 rejected a petition filed by DMK leader R. Sakkarapani seeking disqualification of the MLAs, asserting that it would not be appropriate for the court to take over the function of the speaker, in view of separation of powers. Sakkarapani then approached the Supreme Court on 9 May, 2018.

The DMK’s petition was listed 18 times from July 2018 to February 2020. The court issued notice on the petition in July 2018. But it was only in February 2020 that the court was informed that the speaker had issued notice on the disqualification petitions and so, the appeals had become infructuous.

“Needless to say that the Speaker will take a decision in accordance with law,” the short order had said, without setting any deadline on the speaker’s decision.

However, Sakkarapani had to approach the Supreme Court once again in June 2020 after the speaker failed to decide on the disqualification plea in the months after the February order of the apex court. By then, Covid-19 had already taken over the country, and according to news reports, Speaker Dhanapal conducted an online enquiry into the disqualification petitions.

It is unclear though if he ever made a final decision on the disqualification petitions. Meanwhile, according to the court website, the issue is still pending in the Supreme Court. In 2021, ousted AIADMK leader V.K. Sasikala claimed that it was she who stopped the disqualification of the 11 MLAs.

‘A larger malaise’

The Supreme Court’s January 2020 judgment “is being followed in breach”, according to senior advocate Sankarnarayanan. In the judgment, the court had also suggested that the Parliament may consider setting up independent tribunals to deal with disqualification disputes, instead of Speakers. However, Sankaranarayanan says that this suggestion has also been ignored.

“So what takes place, unfortunately, is that if the Speaker is well-disposed towards the party that benefits from the disqualification, he will drag his feet, but if he isn’t, then he is very prompt in taking steps,” he told ThePrint.

As for the delay in the courts hearing these petitions, he said that delay “plagues every type of case”.

“Even if it’s bail, you’re seeing the kind of delays that are taking place, so that is a part of a larger malaise. The delays in court, unless they are unusual, I don’t think there is any motive to it or any reason for that,” he said.

However, Kirpal drew a comparison between election petitions and disqualification petitions. He pointed out that there are several directives and judgments asserting that election petitions must be given priority, “because failure to decide election petitions expeditiously results in a democracy itself being subverted, because some of those who are not entitled to be there, are there, and those who are entitled, aren’t there”.

“A disqualification petition is exactly the same. It is a question of democratic accountability by a person who is legitimately entitled to represent a community,” he said.

“It is exactly the same as an election petition and in fact, it should be much easier, because in an election petition, there needs to be a trial, there is a strict rule of pleading and procedure, and adjudication followed by appellate procedures. If courts can say they have to be heard expeditiously, there is no reason why a disqualification petition which generally requires very little evidence, should not be done even more expeditiously,” Kirpal further explained.

‘Academic exercise’

The politics of horse trading has also reared its head in Goa after the last two assembly elections.

Political instability engulfed Goa in 2019 when 10 Congress MLAs, of a total of 15, broke away to join the ruling BJP. Under the tenth schedule of the Constitution—the anti-defection law—voluntarily giving up the membership of the original party or voting against the whip of the party can be treated as defection. Members indulging in such practices can be disqualified.

According to the rules, the only way legislators can avoid disqualification is if the legislator’s party merges with another party and not less than two thirds of them agree to the merger and walkout of the original party—which is what the INC rebels claimed they did.

The speaker accepted this reasoning and rejected the disqualification petitions filed against them in April 2021, after which Goa Congress chief Girish Chodankar approached the Bombay High Court in June 2021.

The HC verdict came only on 24 February 2022, after the legislative assembly elections were held in Goa. This verdict upheld the state assembly speaker’s order and dismissed Chodankar’s plea for the disqualification of Congress MLAs who had switched over to the BJP.

Chodankar approached the Supreme Court challenging the HC verdict in March. When it came up in court for the first time in April 2022, it noted that in view of the subsequent election, “the issue has become academic”.

However, the hearing even in this academic exercise has also remained pending in the Supreme Court. The court took note of the submissions by Chodankar’s lawyers that the issue involved was an important question of law and issued notice on the plea. In December 2022, the case was adjourned for an entire year with the court noting that there didn’t appear to be any “urgency” in the matter.

The pending question

When the petition came up again in January this year, senior advocate P. Chidambaram, appearing for Chodankar, told the court that the question to be considered by the court is whether members of a legislative party can validly merge with another party without any evidence of a split in their political party.

In his plea, Chodankar asserted, “The first condition is that there must be a merger of the original political party with another political party and the second condition is that subsequent to the decision of such merger of the original political party, 2/3rd members of the legislature party should agree with and adopt such merger”.

In Goa, the answer to this question, again, assumed significance after Goa Assembly Speaker Ramesh Tawadkar, on 1 November, dismissed the pleas seeking disqualification of eight MLAs who joined BJP from Congress in 2022.

The eight MLAs switched parties in September 2022, months after the assembly elections in which 11 MLAs were elected on Congress tickets. The MLAs claimed that they formed two-thirds of the legislature party of the Congress and had merged with the BJP.

In this case, Congress leader Dominic Noronha on 4 November approached the Goa bench of the Bombay High Court challenging the speaker’s decision.

(Edited by Sanya Mathur)

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