REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 547 OF 2020

(ARISING OUT OF SLP (CIVIL) NO.18659 OF 2019)

KEISHAM MEGHACHANDRA SINGH …APPELLANT

VERSUS

THE HON’BLE SPEAKER MANIPUR

LEGISLATIVE ASSEMBLY & ORS. ...RESPONDENTS

WITH

CIVIL APPEAL NO. 548 OF 2020

(ARISING OUT OF SLP (CIVIL) NO.18763 OF 2019)

CIVIL APPEAL NO. 549 OF 2020

(ARISING OUT OF SLP (CIVIL) NO.23703 OF 2019)

CIVIL APPEAL NO. 550 OF 2020

(ARISING OUT OF SLP (CIVIL) NO.24146 OF 2019)

J U D G M E N T

R.F. Nariman, J.

1.Leave granted.

2.The Appeals in the present case raise important questions

relating to the Tenth Schedule to the Constitution of India

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

11

th

Manipur Legislative Assembly was conducted in March, 2017.

1

The said Assembly election produced an inconclusive result as none

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

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

The Indian National Congress (hereinafter referred to as “Congress

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

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

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

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

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

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

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

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

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

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

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

the Governor for administering oath as Ministers to eight elected

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

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

continues as such till date.

3.As many as thirteen applications for the disqualification of

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

Legislative Assembly between April and July, 2017 stating that

2

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

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

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

dated 31.07.2017.

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

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

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

the Petitioner prayed that the High Court direct the Speaker to

decide his disqualification petition within a reasonable time. On

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

High Court can direct a Speaker to decide a disqualification petition

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

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

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

the outcome of the cases pending before the Supreme Court.

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

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

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

the following reliefs:

“i. Issue Rule Nisi;

ii. To issue an appropriate Writ, Order or Direction as

to this Hon’ble Court may deem fit and proper;

3

iii. To declare that Respondent No. 3 has incurred

disqualification for being a member of the Manipur

Legislative Assembly under para 2(1) (a) of the Xth

Schedule to the Constitution of India in terms of law laid

down by the Constitution Bench of the Hon’ble Supreme

Court in Rajendra Singh Rana and Ors. -Vrs- Swami

Prasad Maurya and Ors. reported in (2007) 4 SCC 270.

iv. If the Hon’ble High Court is pleased to consider that

the prayer made in para no. (ii) and (iii) above deserve

merit for a favourable order, a writ in the nature of Quo

Warranto be issued ousting Respondent No. 3 from the

post/office of Minister.”

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

disposed of by the impugned judgment dated 23.07.2019. The

questions that the High Court posed before itself, which required

consideration at its hands, were stated as follows:

“(a) Whether, in the facts and circumstances of the

present case, the respondent No. 1 can be said to have

failed to discharge its duties as enjoined in the Tenth

Schedule to the Constitution of India to decide the

petitions?

(b) If the above issue (a) is answered in the affirmative,

whether the respondent No. 3 has prima facie incurred

disqualification?

(c) If the respondent No. 3 is found to have incurred a

prima facie disqualification, whether this Court can issue an

order disqualifying the respondent No. 3 from being a

member of the Manipur Legislative Assembly or

alternatively, whether this Court has the power and

jurisdiction to issue a writ of quo warranto declaring the

holding of the post of a Minister by the respondent No. 3 as

illegal, as it being without any authority of law?”

4

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

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

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

take a decision within a reasonable time, such reasonable time

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

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

remedy provided in the Tenth Schedule is in essence an alternative

remedy to be exhausted before approaching the High Court, and

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

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

Speaker, the Court cannot be denied jurisdiction to issue an

appropriate writ to the Speaker. Consequently, the preliminary

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

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

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

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

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

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

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

of the Congress Party would make it clear that the disqualification

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

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

5

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

same issue was pending before a Constitution Bench of the

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

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

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

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

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

of which the Appellant is before us.

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

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

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

deliberately refused to decide the disqualification petitions before

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

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

clear that notice in the present disqualification petition was issued by

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

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

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

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

exhorted us to issue a writ of quo warranto against Respondent

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

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

6

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

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

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

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

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

interdicted by that judgment was the grant of interlocutory stays

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

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

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

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

constitutional objective of checking defections is to be achieved,

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

interdicted. He also strongly relied upon the observations of this

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

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

impugned judgment and then issue a writ of quo warranto against

Respondent No.3.

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

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

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

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

7

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

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

mutually destructive pleas and prayers made in the two writ

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

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

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

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

possibly be granted without first deciding whether Respondent No.3

stands disqualified, which is within the exclusive jurisdiction of the

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

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

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

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

Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal

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

the Speaker has exclusive jurisdiction to decide disqualification

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

Three Judge Bench cannot decide the present case and has to

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

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

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

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

8

there were completely different and that ultimately judicial review

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

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

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

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

petition for disqualification itself. Both these features are absent in

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

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

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

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

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

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

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

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

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

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

“We have considered the aforesaid submissions of both the

learned Attorney General and the learned counsel

appearing on behalf of the petitioner. We feel that a

substantial question as to the interpretation of the

Constitution arises on the facts of the present case. It is

true that this Court in Kihoto Hollohan's case laid down that

a quia timet action would not be permissible and Shri

Jayant Bhushan, learned senior counsel appearing on

behalf of some of the respondents has pointed out to us

9

that in P. Ramanatha Aiyar's Advanced Law Lexicon a quia

timet action is the right to be protected against anticipated

future injury that cannot be prevented by the present

action. Nevertheless, we are of the view that it needs to be

authoritatively decided by a Bench of five learned Judges

of this Court, as to whether the High Court, exercising

power under Article 226 of the Constitution, can direct a

Speaker of a legislative assembly (acting in quasi judicial

capacity under the Tenth Schedule) to decide a

disqualification petition within a certain time, and whether

such a direction would not fall foul of the quia timet action

doctrine mentioned in paragraph 110 of Kihoto Hollohan's

case. We cannot be mindful of the fact that just as a

decision of a Speaker can be corrected by judicial review

by the High Court exercising jurisdiction under Article 226,

so prima facie should indecision by a Speaker be

correctable by judicial review so as not to frustrate the

laudable object and purpose of the Tenth Schedule, which

has been referred to in both the majority and minority

judgments in Kihoto Hollohan's case. The facts of the

present case demonstrate that disqualification petitions had

been referred to the Hon'ble Speaker of the Telangana

State Legislative Assembly on 23rd August, 2014, and

despite the hopes and aspirations expressed by the

impugned judgment, the Speaker has chosen not to render

any decision on the said petitions till date. We, therefore,

place the papers before the Hon'ble Chief Justice of India

to constitute an appropriate Bench to decide this question

as early as possible.”

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

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

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

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

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

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

has already been answered. Unfortunately, the decision contained in

10

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

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

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

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

notice of the Division Bench of this Court.

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

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

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

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

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

set out and which read as follows:

“24. On the contentions raised and urged at the hearing the

questions that fall for consideration are the following:

xxx xxx xxx

(E) That the deeming provision in Paragraph 6(2) of the

Tenth Schedule attracts the immunity under Articles 122

and 212. The Speaker and the Chairman in relation to the

exercise of the powers under the Tenth Schedule shall not

be subjected to the jurisdiction of any Court.

The Tenth Schedule seeks to and does create a new and

non-justiciable area of rights, obligations and remedies to

be resolved in the exclusive manner envisaged by the

Constitution and is not amenable to, but constitutionally

immune from, curial adjudicative processes.

(F) That even if Paragraph 7 erecting a bar on the

jurisdiction of Courts is held inoperative, the Courts'

11

jurisdiction is, in any event, barred as Paragraph 6(1) which

imparts a constitutional ‘finality’ to the decision of the

Speaker or the Chairman, as the case may be, and that

such concept of ‘finality’ bars examination of the matter by

the Courts.”

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

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

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

recommendations of the Committee on Defections to enact an anti-

defection law. The first was the Constitution (Thirty Second

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

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

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

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

Second Amendment) Act, 1985 as follows:

“9. This brings to the fore the object underlying the

provisions in the Tenth Schedule. The object is to curb the

evil of political defections motivated by lure of office or

other similar considerations which endanger the

foundations of our democracy. The remedy proposed is to

disqualify the Member of either House of Parliament or of

the State Legislature who is found to have defected from

continuing as a Member of the House. The grounds of

disqualification are specified in Paragraph 2 of the Tenth

Schedule.

xxx xxx xxx

13. These provisions in the Tenth Schedule give

recognition to the role of political parties in the political

process. A political party goes before the electorate with a

particular programme and it sets up candidates at the

12

election on the basis of such programme. A person who

gets elected as a candidate set up by a political party is so

elected on the basis of the programme of that political

party. The provisions of Paragraph 2(1)(a) proceed on the

premise that political propriety and morality demand that if

such a person, after the election, changes his affiliation and

leaves the political party which had set him up as a

candidate at the election, then he should give up his

membership of the legislature and go back before the

electorate. The same yardstick is applied to a person who

is elected as an Independent candidate and wishes to join

a political party after the election.”

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

“95. In the present case, the power to decide disputed

disqualification under Paragraph 6(1) is pre-eminently of a

judicial complexion.

96. The fiction in Paragraph 6(2), indeed, places it in the

first clause of Article 122 or 212, as the case may be. The

words “proceedings in Parliament” or “proceedings in the

legislature of a State” in Paragraph 6(2) have their

corresponding expression in Articles 122(1) and 212(1)

respectively. This attracts an immunity from mere

irregularities of procedures.

97. That apart, even after 1986 when the Tenth Schedule

was introduced, the Constitution did not evince any

intention to invoke Article 122 or 212 in the conduct of

resolution of disputes as to the disqualification of members

under Articles 191(1) and 102(1). The very deeming

provision implies that the proceedings of disqualification

are, in fact, not before the House; but only before the

Speaker as a specially designated authority. The decision

under Paragraph 6(1) is not the decision of the House, nor

is it subject to the approval by the House. The decision

operates independently of the House. A deeming provision

cannot by its creation transcend its own power. There is,

therefore, no immunity under Articles 122 and 212 from

13

judicial scrutiny of the decision of the Speaker or Chairman

exercising power under Paragraph 6(1) of the Tenth

Schedule.

xxx xxx xxx

100. By these well known and accepted tests of what

constitute a Tribunal, the Speaker or the Chairman, acting

under Paragraph 6(1) of the Tenth Schedule is a Tribunal.

xxx xxx xxx

109. In the light of the decisions referred to above and the

nature of function that is exercised by the

Speaker/Chairman under Paragraph 6, the scope of judicial

review under Articles 136, and 226 and 227 of the

Constitution in respect of an order passed by the

Speaker/Chairman under Paragraph 6 would be confined

to jurisdictional errors only viz., infirmities based on

violation of constitutional mandate, mala fides, non-

compliance with rules of natural justice and perversity.

110. In view of the limited scope of judicial review that is

available on account of the finality clause in Paragraph 6

and also having regard to the constitutional intendment and

the status of the repository of the adjudicatory power i.e.

Speaker/Chairman, judicial review cannot be available at a

stage prior to the making of a decision by the

Speaker/Chairman and a quia timet action would not be

permissible. Nor would interference be permissible at an

interlocutory stage of the proceedings. Exception will,

however, have to be made in respect of cases where

disqualification or suspension is imposed during the

pendency of the proceedings and such disqualification or

suspension is likely to have grave, immediate and

irreversible repercussions and consequence.

14

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

That the Tenth Schedule does not, in providing for an

additional grant (sic ground) for disqualification and for

adjudication of disputed disqualifications, seek to create a

non-justiciable constitutional area. The power to resolve

such disputes vested in the Speaker or Chairman is a

judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent it

seeks to impart finality to the decision of the

speakers/Chairmen is valid. But the concept of statutory

finality embodied in Paragraph 6(1) does not detract from

or abrogate judicial review under Articles 136, 226 and 227

of the Constitution insofar as infirmities based on violations

of constitutional mandates, mala fides, non-compliance

with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in Paragraph 6(2) of the Tenth

Schedule attracts an immunity analogous to that in Articles

122(1) and 212(1) of the Constitution as understood and

explained in Keshav Singh case [(1965) 1 SCR 413 : AIR

1965 SC 745] to protect the validity of proceedings from

mere irregularities of procedure. The deeming provision,

having regard to the words ‘be deemed to be proceedings

in Parliament’ or ‘proceedings in the legislature of a State’

confines the scope of the fiction accordingly.

The Speakers/Chairmen while exercising powers and

discharging functions under the Tenth Schedule act as

Tribunal adjudicating rights and obligations under the Tenth

Schedule and their decisions in that capacity are amenable

to judicial review.

However, having regard to the Constitutional Schedule in

the Tenth Schedule, judicial review should not cover any

stage prior to the making of a decision by the

Speakers/Chairmen. Having regard to the constitutional

15

intendment and the status of the repository of the

adjudicatory power, no quia timet actions are permissible,

the only exception for any interlocutory interference being

cases of interlocutory disqualifications or suspensions

which may have grave, immediate and irreversible

repercussions and consequence.”

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

made by the Speaker of the Uttar Pradesh Legislative Assembly

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

th

Legislative

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

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

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

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

25.08.2003, the Cabinet took a unanimous decision for

recommending dissolution of the Assembly, after which, on

27.08.2003, 13 members of the Legislative Assembly elected to the

Assembly on tickets of the BSP met the Governor and requested

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

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

Governor invited the leader of the Samajwadi Party to form the

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

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

filed a petition before the Speaker under the Tenth Schedule praying

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

16

Singh Yadav before the Governor on 27.08.2003 had incurred the

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

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

40 MLAs elected on BSP tickets, requested the Speaker to

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

members of BSP consisting of 109 legislators had separated from

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

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

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

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

Samajwadi Party which merger was then accepted by the very same

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

application seeking disqualification of the 13 MLAs who were part of

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

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

the High Court of Judicature at Allahabad before the Lucknow Bench

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

stating that the order adjourning the petition for disqualification

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

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

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

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

17

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

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

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

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

dated 07.09.2005 would have no independent legs to stand on,

stating as follows:

“30. ...This last order is clearly inconsistent with the

Speaker's earlier order dated 14-11-2003 and still leaves

open the question whether the petition seeking

disqualification should not have been decided first or at

least simultaneously with the application claiming

recognition of a split. If the order recognising the split goes,

obviously this last order also cannot survive. It has perforce

to go.”

[Emphasis Supplied]

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

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

Court held:

“22. …Suffice it to say that the decision of the Speaker

rendered on 6-9-2003 was not immune from challenge

before the High Court under Articles 226 and 227 of the

Constitution of India.”

18. The Court then went on to hold:

“25. …On the scheme of Articles 102 and 191 and the

Tenth Schedule, the determination of the question of split

or merger cannot be divorced from the motion before the

Speaker seeking a disqualification of a member or

members concerned. It is therefore not possible to accede

to the argument that under the Tenth Schedule to the

Constitution, the Speaker has an independent power to

decide that there has been a split or merger of a political

18

party as contemplated by paras 3 and 4 of the Tenth

Schedule to the Constitution. The power to recognise a

separate group in Parliament or Assembly may rest with

the Speaker on the basis of the Rules of Business of the

House. But that is different from saying that the power is

available to him under the Tenth Schedule to the

Constitution independent of a claim being determined by

him that a member or a number of members had incurred

disqualification by defection. To that extent, the decision of

the Speaker in the case on hand cannot be considered to

be an order in terms of the Tenth Schedule to the

Constitution. The Speaker has failed to decide the

question, he was called upon to decide, by postponing a

decision thereon. There is therefore some merit in the

contention of the learned counsel for BSP that the order of

the Speaker may not enjoy the full immunity in terms of

para 6(1) of the Tenth Schedule to the Constitution and that

even if it did, the power of judicial review recognised by the

Court in Kihoto Hollohan [1992 Supp (2) SCC 651 : AIR

1993 SC 412 : (1992) 1 SCR 686] is sufficient to warrant

interference with the order in question.”

[Emphasis Supplied]

19.The Court also hastened to add:

“29. In the case on hand, the Speaker had a petition moved

before him for disqualification of 13 members of BSP.

When that application was pending before him, certain

members of BSP had made a claim before him that there

has been a split in BSP. The Speaker, in the scheme of the

Tenth Schedule and the rules framed in that behalf, had to

decide the application for disqualification made and while

deciding the same, had to decide whether in view of para 3

of the Tenth Schedule, the claim of disqualification had to

be rejected. We have no doubt that the Speaker had totally

misdirected himself in purporting to answer the claim of the

37 MLAs that there has been a split in the party even while

leaving open the question of disqualification raised before

19

him by way of an application that was already pending

before him. This failure on the part of the Speaker to

decide the application seeking a disqualification cannot be

said to be merely in the realm of procedure. It goes against

the very constitutional scheme of adjudication

contemplated by the Tenth Schedule read in the context of

Articles 102 and 191 of the Constitution. It also goes

against the rules framed in that behalf and the procedure

that he was expected to follow. It is therefore not possible

to accept the argument on behalf of the 37 MLAs that the

failure of the Speaker to decide the petition for

disqualification at least simultaneously with the petition for

recognition of a split filed by them, is a mere procedural

irregularity. We have no hesitation in finding that the same

is a jurisdictional illegality, an illegality that goes to the root

of the so-called decision by the Speaker on the question of

split put forward before him. Even within the parameters of

judicial review laid down in Kihoto Hollohan [1992 Supp (2)

SCC 651 : AIR 1993 SC 412 : (1992) 1 SCR 686] and

in Jagjit Singh v. State of Haryana [(2006) 11 SCC 1 :

(2006) 13 Scale 335] it has to be found that the decision of

the Speaker impugned is liable to be set aside in exercise

of the power of judicial review.”

[Emphasis

Supplied]

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

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

“39. On the side of the 37 MLAs, the scope of judicial

review being limited was repeatedly stressed to contend

that the majority of the High Court had exceeded its

jurisdiction. Dealing with the ambit of judicial review of an

order of the Speaker under the Tenth Schedule, it was held

in Kihoto Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC

412 : (1992) 1 SCR 686] : (SCC p. 706, paras 95-97)

20

“95. In the present case, the power to decide disputed

disqualification under para 6(1) is pre-eminently of a

judicial complexion.

96. The fiction in para 6(2), indeed, places it in the first

clause of Article 122 or 212, as the case may be. The

words ‘proceedings in Parliament’ or ‘proceedings in the

legislature of a State’ in para 6(2) have their

corresponding expression in Articles 122(1) and 212(1)

respectively. This attracts an immunity from mere

irregularities of procedures.

97. That apart, even after 1986 when the Tenth Schedule

was introduced, the Constitution did not evince any

intention to invoke Article 122 or 212 in the conduct of

resolution of disputes as to the disqualification of

Members under Articles 191(1) and 102(1). The very

deeming provision implies that the proceedings of

disqualification are, in fact, not before the House; but only

before the Speaker as a specially designated authority.

The decision under para 6(1) is not the decision of the

House, nor is it subject to the approval by the House. The

decision operates independently of the House. A deeming

provision cannot by its creation transcend its own power.

There is, therefore, no immunity under Articles 122 and

212 from judicial scrutiny of the decision of the Speaker or

Chairman exercising power under para 6(1) of the Tenth

Schedule.”

After referring to the relevant aspects, it was held: (SCC p.

707, para 100)

“100. By these well known and accepted tests of what

constitute a Tribunal, the Speaker or the Chairman,

acting under para 6(1) of the Tenth Schedule is a

Tribunal.”

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

“109. In the light of the decisions referred to above and

the nature of function that is exercised by the

Speaker/Chairman under para 6, the scope of judicial

review under Articles 136 and 226 and 227 of the

Constitution in respect of an order passed by the

21

Speaker/Chairman under para 6 would be confined to

jurisdictional errors only viz. infirmities based on violation

of constitutional mandate, mala fides, non-compliance

with rules of natural justice and perversity.”

The position was reiterated by the Constitution Bench

in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha [(2007) 3

SCC 184 : JT (2007) 2 SC 1] . We are of the view that

contours of interference have been well drawn by Kihoto

Hollohan [1992 Supp (2) SCC 651 : AIR 1993 SC 412 :

(1992) 1 SCR 686] and what is involved here is only its

application.

40. Coming to the case on hand, it is clear that the

Speaker, in the original order, left the question of

disqualification undecided. Thereby he has failed to

exercise the jurisdiction conferred on him by para 6 of the

Tenth Schedule. Such a failure to exercise jurisdiction

cannot be held to be covered by the shield of para 6 of the

Schedule. He has also proceeded to accept the case of a

split based merely on a claim in that behalf. He has entered

no finding whether a split in the original political party was

prima facie proved or not. This action of his, is apparently

based on his understanding of the ratio of the decision

in Ravi S. Naik case [1994 Supp (2) SCC 641 : (1994) 1

SCR 754] . He has misunderstood the ratio therein. Now

that we have approved the reasoning and the approach

in Jagjit Singh case [(2006) 11 SCC 1 : (2006) 13 Scale

335] and the ratio therein is clear, it has to be held that the

Speaker has committed an error that goes to the root of the

matter or an error that is so fundamental, that even under a

limited judicial review the order of the Speaker has to be

interfered with. We have, therefore, no hesitation in

agreeing with the majority of the High Court in quashing the

decisions of the Speaker.

41. In view of our conclusions as above, nothing turns on

the arguments urged on what were described as significant

facts and on the alleged belatedness of the amendment to

22

the writ petition. It is indisputable that in the order that was

originally subjected to challenge in the writ petition, the

Speaker specifically refrained from deciding the petition

seeking disqualification of the 13 MLAs. On our reasoning

as above, clearly, there was an error which attracted the

jurisdiction of the High Court in exercise of its power of

judicial review.”

[Emphasis Supplied]

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

the 13 members were found to be disqualified their continuance in

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

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

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

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

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

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

the Governor on 27.08.2003 stand disqualified from the U.P

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

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

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

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

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

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

answered stating that a failure to exercise jurisdiction vested in a

23

Speaker cannot be covered by the shield contained in paragraph 6

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

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

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

power of judicial review.

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

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

judgment when read together would make it clear that what the

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

exclusive jurisdiction that vests in the Speaker to decide

disqualification petitions so that nothing should come in the way of

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

importance in that interlocutory interference with decisions of the

Speaker can only be qua interlocutory disqualifications or

suspensions, which may have grave, immediate, and irreversible

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

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

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

orders.

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

as follows:

24

“Quia Timet. Because he fears or apprehends. In equity

practice, the technical name of a bill filed by a party who

seeks the aid of a court of equity, because he fears some

future probable injury to his rights or interests, and relief

granted must depend on circumstances.”

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

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

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

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

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

action then held at page 698:

“I do not think, therefore, that I shall be very far wrong if I

lay it down that there are at least two necessary ingredients

for a quia timet action. There must, if no actual damage is

proved, be proof of imminent danger, and there must also

be proof that the apprehended damage will, if it comes, be

very substantial. I should almost say it must be proved that

it will be irreparable, because, if the danger is not proved to

be so imminent that no one can doubt that, if the remedy is

delayed, the damage will be suffered, I think it must be

shewn that, if the damage does occur at any time, it will

come in such a way and under such circumstances that it

will be impossible for the Plaintiff to protect himself against

it if relief is denied to him in a quia timet action.”

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

recent English decisions reported as London Borough of Islington

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

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

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

25

“26. Gee describes a quia timet injunction in the following

terms [Gee, Commercial Injunctions, 6th ed (2016) at [2-

035]]:

“A quia timet (since he fears) injunction is an injunction

granted where no actionable wrong has been committed, to

prevent the occurrence of an actionable wrong, or to

prevent repetition of an actionable wrong.””

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

paragraph 30 of the aforesaid judgment.

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

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

50 as follows:

“6. A quia timet action is a bill in equity. It is an action

preventive in nature and a specie of precautionary justice

intended to prevent apprehended wrong or anticipated

mischief and not to undo a wrong or mischief when it has

already been done. In such an action the court, if

convinced, may interfere by appointment of receiver or by

directing security to be furnished or by issuing an injunction

or any other remedial process. In Fletcher v. Bealey [(1885)

28 Ch D 688 : 54 LJ Ch 424 : 52 LT 541] , Mr Justice

Pearson explained the law as to actions quia timet as

follows:

“There are at least two necessary ingredients for a quia

timet action. There must, if no actual damage is proved, be

proof of imminent danger, and there must also be proof that

the apprehended damage will, if it comes, be very

substantial. I should almost say it must be proved that it will

be irreparable, because, if the danger is not proved to be

so imminent that no one can doubt that, if the remedy is

delayed the damage will be suffered, I think it must be

shown that, if the damage does occur at any time, it will

come in such a way and under such circumstances that it

will be impossible for the plaintiff to protect himself against

it if relief is denied to him in a quia timet action”.”

26

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

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

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

injunctions to prevent the Speaker from making a decision on the

ground of imminent apprehended danger which will be irreparable in

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

disqualified, he would incur the penalty of forfeiting his membership

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

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

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

disqualification under the provisions of the Tenth Schedule. Indeed,

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

bound to decide disqualification petitions within a reasonable period.

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

absent exceptional circumstances for which there is good reason, a

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

the outer limit within which disqualification petitions filed before the

Speaker must be decided if the constitutional objective of

disqualifying persons who have infracted the Tenth Schedule is to be

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

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

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

27

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

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

infracted the provisions of the Tenth Schedule.

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

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

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

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

roost. Verma, J. had held :

“181. The Speaker being an authority within the House and

his tenure being dependent on the will of the majority

therein, likelihood of suspicion of bias could not be ruled

out. The question as to disqualification of a Member has

adjudicatory disposition and, therefore, requires the

decision to be rendered in consonance with the scheme for

adjudication of disputes. Rule of law has in it firmly

entrenched, natural justice, of which, rule against bias is a

necessary concomitant; and basic postulates of rule

against bias are: nemo judex in causa sua — ‘A Judge is

disqualified from determining any case in which he may be,

or may fairly be suspected to be, biased’; and ‘it is of

fundamental importance that justice should not only be

done, but should manifestly and undoubtedly be seen to be

done.’ This appears to be the underlying principle adopted

by the framers of the Constitution in not designating the

Speaker as the authority to decide election disputes and

questions as to disqualification of members under Articles

103, 192 and 329 and opting for an independent authority

outside the House. The framers of the Constitution had in

this manner kept the office of the Speaker away from this

controversy. There is nothing unusual in this scheme if we

bear in mind that the final authority for removal of a Judge

of the Supreme Court and High Court is outside the

28

judiciary in the Parliament under Article 124(4). On the

same principle the authority to decide the question of

disqualification of a Member of Legislature is outside the

House as envisaged by Articles 103 and 192.

182. In the Tenth Schedule, the Speaker is made not only

the sole but the final arbiter of such dispute with no

provision for any appeal or revision against the Speaker's

decision to any independent outside authority. This

departure in the Tenth Schedule is a reverse trend and

violates a basic feature of the Constitution since the

Speaker cannot be treated as an authority contemplated

for being entrusted with this function by the basic

postulates of the Constitution, notwithstanding the great

dignity attaching to that office with the attribute of

impartiality.”

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

disqualification petitions ought to be entrusted to a Speaker as a

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

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

seriously consider amending the Constitution to substitute the

Speaker of the Lok Sabha and Legislative Assemblies as arbiter of

disputes concerning disqualification which arise under the Tenth

Schedule with a permanent Tribunal headed by a retired Supreme

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

outside independent mechanism to ensure that such disputes are

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

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

proper functioning of our democracy.

29

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

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

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

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

disqualification under the Tenth Schedule from being an MLA and

consequently minister must first be decided by the exclusive

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

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

argument of Shri Sibal that the disqualification petition be decided by

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

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

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

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

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

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

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

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

these appeals is that the Speaker of the Manipur Legislative

Assembly be directed to decide the disqualification petitions pending

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

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

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

30

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

matter.

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

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

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

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

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

to costs.

.……………………………J.

(R.F. Nariman)

.……………………………J.

(Aniruddha Bose)

……………………………J.

(V. Ramasubramanian)

New Delhi;

January 21, 2020.

31