The Supreme Court on February 4 gave the Tamil Nadu Assembly Speaker P. Dhanapal a week’s time to confirm when he will take cognisance of disqualification petitions filed under the Tenth Schedule (anti-defection law) against Deputy Chief Minister O. Panneerselvam and 10 other AIADMK MLAs for voting against the confidence motion moved by Chief Minister Edappadi Palaniswami in February 2017.

A three-judge Bench led by Chief Justice of India S.A. Bobde asked Tamil Nadu Advocate General Vijay Narayan and State Additional Advocate General Jayanth Muthuraj to confer with the Speaker and report back on February 14.

The court questioned the Speaker’s inaction, repeatedly asking why he kept the disqualification petitions pending for three whole years without even issuing notice.

“The three-year delay was unnecessary. You (Speaker) needed to have taken action. Prime facie, if there is inaction on the part of the Speaker, it has to be cured,” Chief Justice Bobde addressed Mr. Narayan.

Speaker’s jurisdiction

However, the court made it clear that it had no intention to “go wandering into the Speaker’s jurisdiction” of deciding anti-defection petition.

“Of course, there is nothing we can do about the Speaker deciding to do it (take cognisance of the anti-defection pleas) or not... But we must take cognisance if he keeps them pending... Why did you not take cognisance for three years?” Chief Justice Bobde asked Mr. Narayan, appearing for the Speaker’s office.

Mr. Narayan replied that multiple forums, from the Election Commission to High Court to the Supreme Court, were engaged in the dispute over the past three years. The Speaker had simply decided to wait for the outcome of these litigations.

He explained to the Bench that the Tenth Schedule petitions were filed against Mr. Panneerselvam and the 10 other MLAs, represented by advocate Balaji Srinivasan, for defying the party whip on March 20, 2017.

However, before the Speaker could proceed, the Election Commission recognised Mr. Panneerselvam’s faction as a “separate group” on March 23. Subsequently, the Panneerselvam and the Palaniswami (OPS-EPS) factions merged on August 20. On November 23, 2017, the Election Commission had declared the duo as the leaders of the AIADMK.

DMK’s petitions

Meanwhile, the DMK had approached the High Court for disqualification of the 11 MLAs. The writ petitions were dismissed, following which, the DMK had moved the Supreme Court in May 2018.

“Now all these difficulties are over, now you decide whether to take cognisance or not,” Chief Justice Bobde addressed Mr. Narayan.

Senior advocate Kapil Sibal, for the DMK, referred to a January 20, 2020 judgment of a three-judge Supreme Court Bench led by Justice Rohinton Nariman which directed Speakers to decide anti-defection law petitions within three months maximum.

At this, the Chief Justice turned to Mr. Narayan to stress that the judgment had made it all the more necessary for Mr. Dhanapal to take cognisance.

But senior advocate Mukul Rohatgi, the lead counsel for the MLAs, said the Justice Nariman judgment had no validity because the question of whether a constitutional court can judicially review the inaction of the Speaker had been referred to a five-judge Bench way back in 2016 in the Sampath Kumar case.

Mr. Sibal countered that the reference was made by a two-judge Bench in the Sampath Kumar case. Justice Nariman was heading a numerically stronger three-judge Bench, thus cancelling the reference itself.

Besides, Mr. Sibal said a 2007 judgment by a Constitution Bench in Rajender Singh Rana case had already laid down that the “failure of the Speaker to exercise his jurisdiction will attract judicial review”. The Rana judgment has been highlighted and reiterated in the January 2020 verdict authored by Justice Nariman at the head of a three-judge Bench.

The CJI acknowledged Mr. Sibal’s submissions and reminded Mr. Rohatgi that the Justice Nariman’s direction to Speakers to decide within a “reasonable period” of three months was a part of a judgment and demanded compliance.