Madras High court ruling on disqualification row, a labyrinth of justice?

Chennai: The Madras High court verdict on Friday dismissing a petition by the DMK, seeking disqualification of the Tamil Nadu Deputy Chief Minister, O. Pannerselvam and ten other AIADMK MLAs' for having voted against the Edappadi K Palaniswami government in the confidence vote of February 17, 2017, when they were in the rebel camp, mainly on the ground that a petition in the Supreme Court on the powers of the court to issue directions to the Speaker of a Legislative Assembly is pending, seems to be an instance of "abdicating its (HC's) duty" in this case.

All the important and crucial arguments presented before the High court by high-profile lawyers on both sides in this case, on the petitions filed by the main opposition DMK's whip, Mr Sakkarapani and four MLAs' owing allegiance to the dissident MLA, T T V Dhinakaran-, seeking the disqualification as Mr. Pannerselvam and ten other AIADMK MLAs' had then defied the party whip after their initial plea to the Assembly Speaker, Mr. P. Dhanapal went unheeded last year-, seems futile now.

First, Mr. Pannerselvam and the other MLAs' who voted against did attract disqualification from the membership of the Assembly under the Anti-Defection Law, for their action was not condoned by the AIADMK whip within 15 days of that event. Mr. Pannerselvam's defense that the 'whip' was issued only to the 122 MLAs' who were then staying in a resort near Chennai and not to him and his supporters in the House, holds no water for any 'whip' is a directive to all party MLAs, elected on its symbol to the House. 

Such exception of inapplicability of a 'whip' to a small group is not provided for under the ambit of the Anti-Defection Law. Nor was there a 'split' within the AIADMK, that is at least one-third of its members breaking away, for Mr. Pannerselvam and the ten others to claim the 'whip' did not apply to them.

Fearing that their "disqualification" was imminent, they had through one of their MLAs', Mr. Semmalai moved the Supreme Court, to stay the Madras High court proceedings, asking it to be tagged along with the case of Sampath Kumar Vs Kale Yadaiah and Others of Telangana state, which had been referred to a larger Constitution bench 2016, to examine the issue of whether a High court can direct the Speaker of an Assembly to disqualify a certain member from the House.

However, the Supreme Court bench hearing Semmalai's petition, led by Chief Justice Deepak Misra, did not grant stay of proceedings before the Madras High court. The bench instead allowed for hearing of the case without the petitioners specifically asking for a directive to the Assembly Speaker to disqualify the MLAs' in question. It was in that backdrop the DMK modified its petition, deleting its earlier plea for a specific directive to the Speaker and instead pleading that the High Court itself directly "disqualify" the 11 AIADMK MLAs' for defying the whip.

Though it was being said that courts could not interfere with the rights of the Speaker, deriving from powers vested by the tenth schedule of the Constitution, it must be pointed out that in the 1992 Nagaland Assembly disqualification case (Kihoto Hollohan Vs Zachillhu And Others), a Constitution bench of the Supreme court, including Justices Venkatachalaiah, Jayachandra Reddy and Verma, had ruled that, "democracy is a part of the basic structure of our Constitution and rule of law, and that free and fair elections are basic features of democracy."

The SC bench had then said, "One of the postulates of free and fair elections is provision of resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority."

Just as the "final authority" for removal of Judge of the Supreme court and High court lies outside the judiciary in the Parliament under Article 124(4), that Constitution bench had said by the same principle, the "authority to decide the disqualification of an MLA is outside the House as by Articles 103 and 192."

In the light of the above, even if the question of powers of the court to issue a specific directive to the presiding officer of a legislature has been referred for 'finality' to another Constitution Bench, that was no bar on the Madras High court deciding directly in this instance. Despite these precedents, the High court's ruling today makes us wonder, "Is this labyrinth of Justice?"