The fate of Uttarakhand Assembly Speaker Govind Singh Kunjwal, who had disqualified nine rebel Congress MLAs including ex-Chief Minister Vijay Bahuguna, would be dependent on the judgement on pleas challenging his action to disqualify the lawmakers, now BJP members, the Supreme Court today said.
The caveat came in the order of the bench comprising Justices Dipak Misra and R F Nariman which also refused to grant any interim relief to the rebel MLAs who had sought a stay on their disqualification and permission to participate in the Assembly session starting July 21 at Dehradun.
The motion to remove the Speaker was moved by then nine rebel Congress MLAs and BJP lawmakers on March 18 and a day after, the Speaker slapped them with disqualification notices.
The bench, which also made clear that it did not intend to interfere with the business of the Assembly, said that if the motion is taken up by the House and voted upon then it's fate would be "subject to adjudication" of rebels' pleas against the Nainital High Court order upholding their disqualification by the Speaker.
"We are inclined to state that if the motion that was moved by the petitioners (rebel MLAs and BJP MLAs) for removal of the Speaker is taken up anytime in Uttarakhand Legislative Assembly, the same shall be subject to final adjudication of the SLPs and all the issues raised in the petition including the jurisdictional issue are kept open," it said.
The rebels, also including Kunwar Pranav Singh Champion, filed a plea in their pending appeal seeking a stay on the Speaker's decision to disqualify them by relying on the recent historic judgement in the Arunachal Pradesh case which has held that the Speaker, facing motion for removal, cannot disqualify lawmakers who are part of the motion.
Referring to para 175 of the landmark verdict of the Supreme Court, re-installing the Congress government in Arunachal Pradesh, senior advocate C A Sundaram, appearing for the rebel MLAs, said that Article 179 (c) of the Constitution disentitles the Speaker against whom a resolution for removal is pending from disqualifying any member of the House.
Sundaram also referred to the relevant portion of the
five-judge Constitution Bench judgement in the Arunachal case.
"We are satisfied, that the words 'passed by a majority of all the then members of the Assembly', would prohibit the Speaker from going ahead with disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words 'all the then members', after the disqualification of one or more MLAs from the House.
"The words "all the then members", demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all "the then members" to determine the right of the Speaker to continue," the bench had held.
Senior advocate Kapil Sibal, representing Kunjwal, raised serious objection to the portion of the Arunachal verdict dealing with the power of the Speaker in a case where a motion for removal against him is pending.
"How can it be? I am emotively with you (judge), but I am not logically with you," he said, adding that the Speaker's power to adjudicate in such cases cannot be taken away by political actions and anybody can move a motion and cripple the judicial power of the Speaker.
Sibal said that Arunachal Pradesh Speaker Nabam Rebia has filed a fresh plea seeking review of the judgement.
"The matter was never argued like that. The expression, 'all the then members of the Assembly' (in the Article 179 (c) of the Constitution) does not mean and include disqualified MLAs or vacant seats," he said.
He then asked can the MLAs, who have now joined BJP, be allowed to join the Assembly as part of Congress Legislature Party?
"The very motion to remove the Speaker is a political process. You have put the political process above the judicial process. This cannot be done," Sibal said.
He said, "The Speaker has been rendered incapacitated (by the Arunachal Pradesh verdict). The Deputy Speaker cannot act under the Xth Schedule of the Constitution. Where will the complainant go.
At one point of hearing, Sibal submitted that the instant
petition of disqualified MLAs be also referred to a Constitution Bench as the position of the Speaker, who has been enjoying power under the Xth Schedule, has been severely compromised.
"This will happen the first time in the history of India when BJP leaders will be declared Congress MLAs in the Assembly," he said while seeking the bench's nod to file a reply on the fresh plea of the disqualified MLAs.
The bench then said, "We have all become shock proof. When the Xth Schedule came, the very first case was decided by us was of a Speaker who himself had defected despite holding the high constitutional post."
Another senior advocate A M Singhvi shared the views of Sibal on the issue and said, "Here is a situation where the Speaker has become a persona non designata. A potential accused can disable the judge from adjudicating his case."
He said that what will happen to the legal position that only two-third of the MLAs of a political group can be recognised by the Speaker under the Anti-Defection Law.
In the present scenario any defecting MLA can give a notice on motion for removal of the Speaker before defecting and take shelter of the judgement that he cannot be disqualified by the Speaker facing the motion, Singhvi said, adding that the MLAs committing "constitutional sins" cannot be given benefits.
Sundaram said, "I have moved the motion for removal of the Speaker and now I am being disqualified. Now they will take up the motion without the ones who have moved the motion. It will be a great anomaly."
To this, the bench said, "Our mind is clear. We cannot interfere in the affairs of the Assembly. What we can do is that if the motion for removal of the Speaker is taken up, it will be subject to the outcome of pleas pending before us.
