Jharkhand High Court: A Division Bench of Dr Ravi Ranjan, CJ. and Sujit Narayan Prasad, J., allowing the present petition, discussed the power of judicial review in cases pertaining with the tenth schedule of the Constitution.
The brief facts of the case are that the writ petitioner in WP (C) No. 3687 of 2020, at the relevant time, was the Kendriya Adhyaksh (President) of Jharkhand Vikas Morcha (Prajatantrik), are recognized and registered State Level Political Party by the Election Commission of India. A meeting of the Central Working Committee of JVM(P) was held on 11-02-2020 wherein it was resolved to merge the JVM(P) political party with Bhartiya Janta Party, a national political party. Further, in a meeting of the Legislature Party of the JVM(P) held on 11-02-2020, it was unanimously resolved to merge JVM(P) with BJP.
In view of the aforesaid decisions, the President of JVM(P), the writ petitioner in WP (C) No. 3687 of 2020, had written a letter on 11-02-2020 to the Election Commission of India by enclosing the decision taken in the meetings dated 11-02-2020 by making a request to take steps as JVM(P) and its legislature party stand merged with BJP henceforth. The Election Commission of India vide letter dated 06-03-2020 has informed regarding merger of JVM(P) with BJP. The fact about the merger has been brought to the notice of the Speaker, Jharkhand Legislative Assembly. The Speaker issued a notice on 18-08-2020 stating that he has come to believe that there is an issue affecting the Tenth Schedule of the Constitution of India and as such, the writ petitioner was directed to produce evidences himself or through Advocate on 17-09-2020. The writ petitioner filed response raising the question of jurisdiction to the effect that the Speaker of the Jharkhand Legislative Assembly has no power to take suo moto cognizance to treat a case under Tenth Schedule of the Constitution of India as the constitutional mandate as under Tenth Schedule under Paragraph 6 thereof, the Speaker has only been conferred with the power to take decision on questions as to the disqualification on ground of defection if any question to that effect is referred. Though, in the case in hand, no such issue has been referred by anyone for its adjudication, however, such power has been exercised by the Speaker in pursuance to the provision of Sub-Rule (1) of Rule 6 of the Rules, 2006 which confers power to the Speaker to take suo moto decision for determining the question of defection in view of the Tenth Schedule of the Constitution of India. Another argument later raised was with respect to the power of the Court to grant interim relief to the petitioners in the instant case, as the same seems protected by Article 212 of the Constitution.
- Whether Speaker can take suo moto cognizance under paragraph 6 of the Tenth Schedule?
- Whether the Court can exercise its power under Article 226 to grant interim relief in a matter connected with paragraph 6, Tenth Schedule?
On principles governing interim injunction/interim relief
Court referred to the case of, Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd., (1998) 1 SCC 720, wherein the Supreme Court has delineated the other considerations which ought to weigh with the Court hearing application or petition for the grant of injunction as; (i) Extent of damages being an adequate remedy (ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor (iii) The Court while dealing with the matter ought not to ignore the factum of strength of one party’s case being stronger than the others (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case, the relief being kept flexible (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise.
Further, reliance was placed on Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719, wherein the Court explained the scope of interim order, in the words, “The phrases prima facie case, balance of convenience and irreparable loss are not rhetoric phrases for incantation but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of Justice. The facts are eloquent and speak for themselves.”
On power of Speaker under Paragraph 6 to Tenth Schedule of the Constitution
Court reproduced the said paragraph;
Para 6 Decision on questions as to disqualification on ground of defection —
(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.
The bench concluded in the words, “It is, thus, evident that the Speaker is required to exercise the power for taking decision if question about disqualification is referred for such decision before him, meaning thereby, under the constitutional mandate no power has been conferred upon the Speaker to take suo moto decision for answering the question about disqualification under the Tenth Schedule of the Constitution of India.”
On power of Judicial Review in cases attracting Paragraph 6 of the Tenth Schedule
The bench considered the case of Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, as observed under Paragraph 110 and 111, in the words, “…The Speakers/Chairman while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review. However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.”
Therefore, it is evident that the power of judicial review can be exercised but under its limited scope, that is, if the order has been found to be passed on the violation of the constitutional mandates, mala fide, non-compliance with Rules of Natural Justice and perversity.
Reiterating the precedents cited, the Court said, “…that the petitioner has been able to make out prima facie case and if the interim order would not be granted, the same will lead to irreparable loss and further, balance of convenience also lies in favour of the petitioner, therefore, is of the view that it is a fit case where the interim relief is required to be granted in favour of the writ petitioner.”[Babulal Marandi v. Speaker, Jharkhand Vidhan Sabha, 2020 SCC OnLine Jhar 1017, decided on 17-12-2020]
Sakshi Shukla, Editorial Assistant has put this story together