Thread by @legaljournalist

The Supreme Court is slated to pronounce its order in the Karnataka MLAs case tomorrow. However, it has a very interesting situation at hand. #Thread

The question regarding maintainability has thrown up some interesting scenarios.

The contention by Speaker challenging maintainability is rested on the reasoning that a Court cannot issue a direction to the Speaker to act within a particular time frame.

This issue has some history behind it due to a very similar issue pending before the Supreme Court in a 2015 Telangana case.

But before we go into that 2015 case, a 1992 Constitution bench judgment of Supreme Court in the case of Kihoto Hollohan assumes significance.

In Kihoto Hollhan, the Supreme Court was dealing with the Constitutional validity of Tenth Schedule which deals with disqualification of law makers.

The Court in that judgment held that while the decisions taken by a Speaker is subject to judicial review, no quia timet actions are permissible against the Speaker.

A Quia timet action could essentially mean a stay of proceedings pending before the Speaker.

Now back to the 2015 Telangana case. This case pertained to defection by Congress MLAs in Telangana to TRS.

Interestingly, in that case, a Congress MLA had approached the Supreme Court seeking direction to be issued to the Speaker to decide disqualification petitions against the defected Congress MLAs within a particular time frame.

The question before the Supreme Court was whether a speaker acting under powers under the Tenth Schedule can be ordered by a High Court, under Article 226, to decide a particular disqualification petition pending before him within a certain time.

Mukul Rohatgi who was then the Attorney General for Central govt, submitted in that case that the issue has been settled by Kihoto Hollohan.

However, it was the argument of the Congress MLA that Kihoto Hollohan did not decide on the question of whether a Speaker can be directed to act within a particular time frame.

He argued that a quia timet action is an action in the nature of stay of proceedings and the direction that the Speaker should decide a particular dispute within a certain time does not fall within such an action.

A Bench of Justices RK Agarwal and Rohinton Nariman, however, referred the matter to a Constitution bench stating that substantial question as to the interpretation of the Constitution arises in the matter.

The question of reference was
Whether High Court, under Article 226, can direct Speaker (acting under Tenth Schedule) to decide disqualification petition within a certain time, and whether such a direction would not fall foul of quia timet doctrine in para 110 of Kihoto Hollohan

Interestingly, the Court, in that case, refused to pass any interim order since the Speaker had contested the very right of the Court to pass any such order. A previous interim order in that matter was, therefore, kept in abeyance.

Now to the present case in which facts are different. In this petition, the issue raised is of resignation under Article 190 and not disqualification under Tenth Schedule.

And in an interesting role reversal, Mukul Rohatgi is now arguing that a direction can be issued against the Speaker to act within a time frame since this is not a Tenth Schedule proceeding but resignation under Article 190.

(And both are independent of each other).

And, the Speaker is taking the stance that no such direction can be issued to him since Article 190 cannot be read in isolation.

In this case, resignations (under Article 190) are connected to the disqualification under Tenth Schedule and hence the fetters on power of judicial review when it comes to the Tenth Schedule proceedings apply equally, the Speaker contends.

The Supreme Court can do either of the following three things tomorrow.

1. It can say that it is entitled to issue a direction to the Speaker to act within a time frame under Art 190.

In doing so, it will distinguish this case from Telangana matter on the ground that this pertains to Speakers’ exercise of powers under Art. 190 and not Tenth Schedule.

In that event, the matter will be disposed of on merits which could be part of the same order tomorrow.

Second is that Court can say that the issue of whether it can give a direction to the Speaker acting under Article 190 needs to be decided by a larger Bench.

In that case, the Court in keeping with the same logic employed in Telangana order cannot pass any interim order.

The case could also end up being tagged with Telangana matter and heard together.

3. The Court can say that it is not entitled to pass any direction to the Speaker when he is in the process of dealing with Article 190.

That is, Judicial Review will be permissible only after Speaker takes a decision which would mean dismissal of the petition.

What was baffling was a remark by CJI Gogoi today during the hearing that Court wants to balance things for both parties since it involves weighty issues from both sides.

How that balancing can be done, I am not sure (one of the parties will have to take a hit).

Over to tmrw.