A split verdict ensures status quo in TN, for now

Justice Banerjee agreed with the view of the Speaker that the action of the 18 MLAs amounted to them voluntarily giving up membership of the AIADMK by giving representations to the governor, which formed the basis for their disqualification.

The Madras High Court’s split verdict on the disqualification of 18 rebel AIADMK legislators  has prolonged the tenure of the 16-month-old Edappadi K Palaniswami government in Tamil Nadu, albeit for now.

The government, which has been facing crisis after crisis ever since it took office on February 16, 2017, can heave a sigh of relief till a third judge takes a call on whether Speaker P Dhanapal’s order disqualifying the 18 MLAs is valid or not.

The verdict, which was reserved way back in January by the bench consisting of Chief Justice Indira Banerjee and Justice M Sundar, was keenly awaited in political circles, not just in Tamil Nadu but across India.

With Justices Banerjee and Sundar disagreeing with each other on whether the Speaker was within his right to disqualify the MLAs or his decision conflicted with constitutional provisions, the situation is back to square one. The status quo –- no floor test or by-polls for the 18 constituencies can be held –- will remain till Justice S Vimala hears the case afresh.

Palaniswami replaced O Pannerselvam as chief minister in February 2017 after the latter rebelled against the then formidable VK Sasikala, close aide of late AIADMK leader J Jayalalithaa, and was forced to accept the bitter pill -– leadership of the much junior TTV Dhinakaran as deputy general secretary of the party.

The battle of attrition between Palaniswami and Dhinakaran culminated in the former patching up with Pannerselvam and inducting him as deputy CM in his cabinet. This enraged Dhinakaran, who instructed 19 MLAs loyal to him to meet then governor CH Vidyasagar Rao and submit letters withdrawing their support to Palaniswami.

The AIADMK hit back with the Speaker disqualifying 18 of the 19 MLAs -- one legislator, STK Jakkaiyan, went back to the CM’s camp after submitting an apology letter to the Speaker. The disqualified MLAs approached the high court and the principal opposition, the DMK, followed, although they filed separate petitions seeking a floor test of the Palaniswami government’s majority.

Justice Banerjee agreed with the view of the Speaker that the action of the 18 MLAs amounted to them voluntarily giving up membership of the AIADMK by giving representations to the governor, which formed the basis for their disqualification.

She also noted in the judgement that there was no assertion on the part of the 18 MLAs that they would continue to support the AIADMK under any other leader except Palaniswami. “They have not even asserted that the withdrawal would not dislodge the government formed by the party,” she wrote.

While senior counsel Abhishek Manu Singhvi, appearing for the 18 MLAs, relied heavily on the 2011 Supreme Court judgement that quashed the disqualification of 16 Karnataka legislators by the then Speaker of the Karnataka assembly, K G Bopaiah, before a trust vote in October 2010, Justice Banerjee agreed with Palaniswami’s counsel Mukul Rohatgi that the SC judgement in the BS Yeddyurappa case was completely distinguishable from the Tamil Nadu case on facts.

Justice Sundar also made it clear that he was passing the order -– quashing the disqualification of the MLAs -– without relying on the Yeddyurappa case.

While Justice Banerjee agreed with the Speaker that enough opportunities were given to the rebel legislators to explain their actions, her companion judge disagreed with the arguments put forth by the counsels of the CM, the Speaker and AIADMK chief whip S Rajendiran.

Justice Sundar also wrote in his judgement that he was inclined to accept the submission of Singhvi that the Speaker’s order was hit with mala fide since the presiding officer has applied different rules for the 18 MLAs and Jakkaiyan.

“If the stated position on behalf of the Speaker is that disqualification occurs the moment an MLA goes to governor, it cannot be different for STK Jakkaiyan,” he said. On this, Justice Banerjee said it was not necessary to go into the Jakkaiyan question. She opined that when the conclusions of the authority, the Speaker, are based on evidence, the court could not go into it in exercise of its power of judicial review.

“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 in anyway unreasonable, irrational or perverse…No interference is, therefore, warranted with the impugned order passed by the Speaker,” Justice Banerjee concluded.

However, Justice Sundar set aside the Speaker’s disqualification order as it was hit by all four grounds of judicial review –- “perversity, non-compliance with the principles of natural justice, mala fide and violation of constitutional mandate.”

While agreeing that there was no dispute that the high constitutional office of the Speaker should be completely above the political thicket and party politics, Justice Sundar noted that AIADMK itself did not exist as an entity when the 18 MLAs submitted their letter of no-confidence in Palaniswami.

He also refused to draw the inference that the 18 MLAs were in cahoots with the DMK in toppling the Palaniswami dispensation and noted that even the counsel for the CM placed before the court that he did not have any material to show that the leader of the opposition MK Stalin met the governor on the same day the MLAs approached him.

Terming Stalin’s action of seeking a floor test “very natural” and “on expected lines”, Justice Sundar ruled that in the absence of any evidence that the 18 MLAs and DMK were acting in tandem, disqualification of the legislators because the two were acting in cahoots is an assumption without any
basis.

“It is not even a possible view. There can be no assumption and nothing in the realm of surmises and conjectures in constitutionally deciding very important issues like disqualification,” Justice Sundar wrote.

Contending that she cannot “lose sight” of the fact that Stalin had immediately followed up a representation with the governor based on the petition of the MLAs, Justice Banerjee concluded that the disqualified legislators had not only identified themselves with an ideology different from that of their original party but also with the leader of the opposition.

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A split verdict ensures status quo in TN, for now

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