Tamil Nadu MLA Disqualification: Why Was a Third Verdict Needed?

The two judges disagreed on whether the Speaker’s order could be interfered with or not.

Why did a third judge of the Madras High Court have to pass judgment in the MLA disqualification case?

On what basis had the then Chief Justice of the Madras HC, Indira Banerjee, held that the Speaker’s decision to disqualify 18 MLAs under the anti-defection law should not be interfered with?

And why had Justice M Sundar instead held that the Speaker got it wrong and that the MLAs should be reinstated?

With Justice M Sathyanarayanan finally delivering his judgment endorsing Justice Banerjee’s view, here’s everything you need to know about how we got here.

Split Verdict

This case arose out of a decision of the Speaker of the Tamil Nadu Legislative Assembly on 18 September 2017, in which he disqualified 18 MLAs belonging to the AIADMK party.

At the urging of AIADMK leader TTV Dinakaran, these 18 MLAs had met the Governor on 22 August 2017, and given written representations to him stating that they had lost confidence in Chief Minister E Palaniswami, and were withdrawing their support to him. 

The MLAs filed writ petitions in the Madras High Court, asking for the court to recall the Speaker’s order for being unauthorised, illegal and without jurisdiction.

In writ petition cases like this one, at least two judges need to hear the case – known as a Division Bench. Chief Justice Banerjee and Justice Sundar heard lengthy legal arguments in the case, and reserved their verdict in January this year.

Since both judges eventually arrived at different decisions, a third judge was now needed to settle the case, after hearing the arguments again.

Till then, the status quo prevailed: The 18 MLAs remained disqualified, but bye-elections were not be held for their seats till the high court arrived at a final decision.

Why Did Chief Justice Banerjee Say the MLAs Should Remain Disqualified?

The Speaker disqualified the 18 MLAs under the Tenth Schedule of the Constitution of India (read with the relevant Tamil Nadu Rules). The Tenth Schedule is commonly known as India’s anti-defection law, and was introduced in 1985 to prevent defections by politicians on the basis of inducements.

Under paragraph 2(1)(a) of the Schedule, MLAs are disqualified if they voluntarily give up membership of their party. This encompasses more than just resignation. The Supreme Court has held that giving up membership can be inferred from their actions – publicly opposing one’s party or supporting another has been deemed by the court as resignation.

Chief Justice Banerjee pointed out that according to the landmark case of Kihoto Hollohan vs Zachillhu (SC, 1992), while courts can review the decisions of a Speaker, they can only do so if the decision of the Speaker is ‘perverse’, ie, it is outrageous in its defiance of logic or moral standards. Administrative decisions can also be reviewed if there is a patent error of law, or ignores the principles of natural justice (like giving an accused party a chance to defend themselves).

Justice Banerjee did not feel that this standard was met in this case, writing:

“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.”

As long as the Speaker’s decision was legally possible, the court could not interfere just because it may have preferred a different view. Chief Justice Banerjee therefore did not eventually express her own opinion on whether the MLAs should be disqualified, just that there were no reasons to overturn the Speaker’s decision.

One other important aspect of her judgment in this case was that she distinguished this case from the Yeddyurappa case of 2011, when the Supreme Court had overturned a decision of the Karnataka Speaker to disqualify several BJP MLAs who had similarly expressed no confidence in their chief minister. The 18 MLAs had relied on this case heavily when making their arguments.

Chief Justice Banerjee noted that in that case, the MLAs had categorically said that they were not going to leave the BJP and would support any other BJP CM except BS Yeddyurappa. No such assertion had been made in this case.

Why Did Justice Sundar Say the MLAs Should be Reinstated?

Justice Sundar disagreed with the Chief Justice because in his view, the tests for judicial review in the Kihoto Hollohan case had been met in this case. He identified 4 grounds on which he thought the Speaker’s decision needed to be overturned:

1. Perversity - This whole case came up after the EPS-OPS tug of war for control of the AIADMK, which was the subject of an Election Commission dispute over the two leaves symbol of the party. In Justice Sundar’s view, till the EC passed its final decision on 23 November 2017, there was no AIADMK political party per se, and so it was perverse for the Speaker to hold that actions of the 18 MLAs could be deemed as voluntarily giving up membership of a party.
2. Failure to comply with principles of natural justice - Along with these 18 MLAs, another AIADMK MLA, STK Jakkaian, had also written to the Governor in August 2017. He later rescinded his statement. His statement about the intentions of the other MLAs was used by the Speaker when disqualifying the 18 MLAs – but the Speaker did not allow the 18 MLAs to cross-examine him.
3. Mala fides - The Speaker had held in his order that an MLA was disqualified the moment he gave up membership of the party. The Speaker also held that sending the representations to the Governor counted as giving up membership of the party. As a result, despite later rescinding his statement, STK Jakkaian should have been disqualified along with the other 18 MLAs. Because the Speaker did not do so, Justice Sundar was of the opinion that this demonstrated bad faith.
4. Violation of constitutional mandate - Justice Sundar noted that the point of the anti-defection law is to ensure that the decision of the electorate in electing a candidate (including him belonging to a particular party) is not subverted after their election because the candidate is induced to join a different party. By disqualifying the 18 MLAs, but not Jakkaian, Justice Sundar found that the Speaker had ignored this mandate.

Who Got it Right?

There was a certain degree of urgency to this case since the 18 constituencies from which the disqualified MLAs had been elected have not had any representation in the Tamil Nadu Legislative Assembly for over a year now.

Both the original judges of the Division Bench had made compelling arguments for arriving at the conclusions they did, and even though they reached different conclusions, they seemed to be in agreement about the legal standards to be applied. The difference in their decisions was therefore one arising out of their assessment of the facts, and how these applied to the common legal test of the Kihoto Hollohan case.

This meant that Justice Sathyanarayanan essentially had to assess the facts and evidence, and decide whether or not there was any perversity to the Speaker’s decision. From what we know of his verdict thus far, it appears that he agreed with the view taken by Justice Banerjee: that the decision of the Speaker to disqualify the MLAs was “possible, if not plausible”.

This does not mean that Justice Sundar’s decision was wrong; his assessment of the law was correct, and the conclusions he arrived at on the basis of the facts and evidence were entirely reasonable. The decision is therefore a great example of a healthy judiciary, where the decision of a senior judge isn’t followed blindly, and the difference of opinion is resolved according to procedure.

(This article was originally published on 15 June 2018. It has been updated and contextualised in light of the decision of Justice M Sathyanarayanan to uphold the disqualification of the 18 MLAs on 25 October 2018)