In a huge relief to the AIADMK government, the Madras High Court today gave a split verdict on petitions challenging the disqualification of 18 MLAs loyal to sidelined party leader TTV Dhinakaran, a ruling that would maintain status quo in the corridors of power in Tamil Nadu.
A division bench of Chief Justice Indira Banerjee and Justice M Sundar delivered divergent verdicts on whether the 18 MLAs deserved to be disqualified under the anti-defection law by Speaker P Dhanapal on September 18 last year for approaching the Governor and seeking the removal of Chief Minister K Palaniswami.
The court ruled that the senior-most judge after the chief justice would now hand-pick a judge who will hear the matter afresh.
In her 200-page order, the chief justice upheld the Speaker's decision, saying "In my opinion, the view taken by the Speaker is a possible, if not plausible view, and I am unable to hold that the said decision is any way unreasonable, irrational or perverse."
Justice Sundar, in his 135-page order, struck a dissenting note, insisting that Dhanapal's order "deserved to be set aside on grounds of perversity, non-compliance with principles of natural justice, mala fides and violation of the constitutional mandate".
The chief justice said status quo would continue till the third judge delivered the verdict on the petitions.
Today's verdict came as a massive relief for the Palaniswami government as the restoration of the membership of the MLAs could have brought it perilously close to losing majority in the event of their joining hands with the opposition DMK-Congress-IUML alliance, which together has 98 MLAs in the 234-member assembly.
In that eventuality, the Opposition's strength would have swelled to 117, including Dhinakaran, who is the lone independent MLA. The AIADMK also has 117 members in the House, including the Speaker.
Chief Justice Banerjee, while upholding the Speaker's order, noted that since the petitioners were initially given seven days and then additional time at their request to present their case, there was no contravention of Rule 7(7) of the Disqualification Rules, as claimed by them.
On the submission that petitioners were denied natural justice, Banerjee said, having chosen not to appear before the Speaker despite being told that in that event the matter would be decided ex-parte, they cannot complain of breach of audi alteram partem (hear the other side) rule.
On whether the submission of the letter by the 18 MLAs to the Governor for intitiating the constitutional process (for changing the chief minister) was an act of defection, the chief justice said it was not for the court to adjudicate the merits of the decision.
"Since this court does not sit in appeal over a decision of the Speaker, it is not for this court to adjudicate the merits of the decision," she said.
On the petitioners' contention that in the case of B S Yeddyurappa and others a similarly worded letter was held as not fit to attract disqualification, she extensively referred to the apex court's observations in the case, and said the Karnataka Speaker's order was set aside on the ground of violation of the principles of natural justice.
The MLAs were found not to have been given reasonable opportunity to explain their representation, she said, citing the Yeddyurappa case, in which disqualification of 13 BJP MLAs who had revolted against the chief minister was set aside.
Justice Banerjee said she also found "substance" in the contention of the government that if the effect of withdrawal of support and calling for initiation of constitutional process meant fall of the government, it would imply relinquishment of membership of the party, and attract provisions of the disqualification law.
"No interference is, therefore, warranted with the impugned order passed by the Speaker," she ruled.
Justice Sundar, however, said the entire controversy could have been put to rest had the Speaker conceded the plea of the petitioners to allow them an opportunity for cross examination and give oral evidence.
The judge said that after a careful examination of the sum totality of the principles in various case laws cited by the petitioners, he was convinced that even if the impugned order was legally correct, it deserved to be set aside for mala fides (in bad faith).
Citing a Supreme Court judgment by Justice V RKrishna Iyer, he said, "When exercise of power by the custodian of the power was for reasons outside the scope and purpose of the vesting of the power, the order deserved to be dislodged."
"I respectfully submit that I disagree with the opinion of the CJ and hereby set aside the order passed by the Speaker," he said.
Reacting to the split judgement, Dhinakaran, who recently founded Amma Makkal Munnetra Kazhagam after being sidelined in the AIADMK, said he was dissatisfied with it. "It has given 2-3 months extension to the anti-people government in Tamil Nadu," he told reporters.
DMK working president and Leader of the Opposition in the assembly M K Stalin said, "At a time when people are pinning hopes on judiciary to safeguard democracy, a clear, just and quick judgement should be issued.
"Justice delayed is justice denied. Hope the judiciary will avoid such situation," he said in a tweet.
Vaigai Chelvan, AIADMK spokesperson said, the party was confident that "justice would be done" when the third judge hears the matter.
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