(2016) 454 KLW 713

IN THE HIGH COURT OF KERALA AT ERNAKULAM

V.CHITAMBARESH, J

W.P.(C). No.37428 of 2015

Dated this the 14th day of March, 2016

PETITIONER

P.C.GEORGE, AGED 64 YEARS S/O.CHACKO, 101 - POONJAR, KERALA LEGISLATIVE ASSEMBLY RESIDING AT PLATHOTTAM HOUSE, ERATTUPETTA 2 KOTTAYAM DISTRICT. 

BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.NAGARAJ NARAYANAN SRI.JESTIN MATHEW SRI.SAIJO HASSAN SRI.BENOJ C AUGUSTIN 

RESPONDENTS

1. THE HON'BLE SPEAKER, KERALA LEGISLATIVE ASSEMBLY THIRUVANANTHAPURAM 695 001.

2. ADVOCATE THOMAS UNNIYADAN KERALA GOVERNMENT CHIEF WHIP THIRUVANANTHAPURAM 695 001. 

R1 BY SRI.TOM K.THOMAS, SPECIAL GOVERNMENT PLEADER R2 BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA 

JUDGMENT 

I will rather resign than face an ignominious exit thought a Legislator. But the Speaker kept the resignation pending and disqualified the Legislator. Was this action justified and justiciable is the short question.

2. The first respondent is the Speaker of the Kerala Legislative Assembly of which the petitioner and the second respondent (who was later elected as the Chief Whip of the Kerala Government) are members. The second respondent moved Ext. P1 petition before the first respondent for disqualifying the petitioner in terms of Article 191 of the Constitution of India. The second respondent contended that the petitioner has voluntarily given up his membership of the political party to which he belonged and hence disqualified. As many as 19 acts of the petitioner were enumerated in Ext. P1 petition to show that the petitioner has incurred disqualification as per Para (1)(a) of the Tenth Schedule of the Constitution. The most prominent amongst the items is the letter written by the petitioner to the Speaker seeking permission to vote and abstain from voting based on issues. The preliminary objection raised by the petitioner on the maintainability of Ext. P1 petition was turned down by the Speaker and affirmed by this Court in W.P.(C.) No. 28870/2015. The petitioner filed Ext. R2(c) objection to Ext.P1 petition and maintained that the acts complained of do not constitute a voluntary giving up of his membership.

3. PWs 1 to 10 were examined on behalf of the second respondent and RWs 1 to 9 were examined on behalf of the petitioner in the proceedings before the Speaker which spanned for four months. The proceedings stood posted to 12.11.2015 on which date the petitioner submitted a notes of argument and also a letter of resignation in person to the Speaker. The Speaker 'kept the resignation in abeyance pending enquiry' and rendered Ext.P27 decision disqualifying the petitioner in terms of Para 6(1) of the Tenth Schedule. It appears that the resignation was not accepted by decision dated 13.11.2015 on which date only was Ext. P27 decision also taken by the Speaker. The purported decision of the Speaker on the letter of resignation was admittedly not communicated to the petitioner at any point of time and came to light from the files only.

4. The petitioner contended that there was no reason for the Speaker not to accept his resignation or even take a decision thereon well before Ext.P27 decision of his disqualification. A constitutional right inhered in him to tender a resignation as a member of the Legislative Assembly which has been trampled upon by its nonconsideration at the material time. There is no point in considering his resignation well after the petitioner is disqualified and has ceased to be a member of the Legislative Assembly by disqualification. The petitioner asserted that the Speaker was a tool in the hands of his political rivals and that his action is wholly vitiated by malafides in the circumstances. The second respondent contended that the resignation is not voluntary or genuine and that the Speaker was justified in deferring a decision thereon pending enquiry. Whether there was an enquiry or any inputs received as regards the resignation being not voluntary and genuine is irrelevant and that the Speaker has absolute discretion. The second respondent concluded by stating that the proceedings in the Legislature of the State cannot be called in question in court and are beyond judicial review.

5. I heard Mr. P. Ravindran, Senior Advocate on behalf of the petitioner, Mr. Tom K. Thomas, Special Government Pleader on behalf of the Speaker and Mr. S. Sreekumar, Senior Advocate on behalf of the second respondent.

6. Chapter III of the Constitution of India deals with the State Legislature including the disqualifications of members and Article 190 thereof speaks of 'vacation of seats' held by them. Article 190(3) is to the following effect:-

“(3) If a member of a House of the Legislature of a State - (a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of article 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant:-

Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.”

Thus the seat of a member of a House of the Legislature of the State becomes vacant only if he resigns his seat by writing under his hand addressed to the Speaker or the Chairman. The above alone is not sufficient for the resignation of a member to come into effect since the same has to be accepted by the Speaker or the Chairman as the case may be. The Speaker or the Chairman as the case may be shall not accept the resignation if he is satisfied that such resignation is not voluntary or genuine in the circumstances. The satisfaction for the same has to be arrived at from information received or otherwise and after making such inquiry as the Speaker or the Chairman as the case may be thinks fit.

7. Chapter XXI of the Rules of Procedure and Conduct of business in the Kerala Legislative Assembly deals with the resignation and vacation of seats in the Assembly. Rule 169(2) thereof is as follows:-

“(2) If a Member hands over the letter of resignation to the Speaker personally and informs him that the resignation is voluntary and genuine and the Speaker has no information or knowledge to the contrary, the Speaker may accept the resignation immediately.”

Thus the normal rule is that the letter of resignation of a member is liable to be accepted immediately especially when the same is handed over personally and the Speaker informed that it is voluntary and genuine. The acceptance of the resignation of a member of a House of the Legislature of the State can be deferred only if the Speaker has information or knowledge to the contrary. The petitioner submitted his letter of resignation at 11.16 A.M. on 12.11.2015 personally to the Speaker of the Kerala Legislature unequivocally stating that 'he resigns as a member of the Legislative Assembly'. The Speaker acknowledged the receipt of the resignation letter on 12.11.2015 itself with an endorsement that a decision would be taken after considering legal aspects. The resignation is seen rejected by a decision of the Speaker taken on 13.11.2015 merely observing that the resignation is not voluntary or genuine. The decision does not give any supporting reasons as to why the Speaker is satisfied that the resignation is not voluntary or genuine warranting its non-acceptance. The decision of the Speaker does not reflect as to whether the satisfaction was arrived at from information received or otherwise or after making such enquiry as it was thought fit. The decision of the Speaker at best indicates that the letter of resignation was submitted by the petitioner at the fag end of the proceedings for disqualification.

8. It may at once be noticed that Ext.P27 decision of the Speaker on the question of disqualification of the petitioner from being a member of the Legislative Assembly was also rendered on 13.11.2015. It proceeds on the firm basis that the letter of resignation put in by the petitioner on 12.11.2015 is still kept in abeyance pending enquiry. The exact words in Ext. P27 decision is extracted below:-

“On 12.11.2015 respondent along with his notes on arguments submitted his resignation. It appears that resignation was submitted after adjournment of the petition to 13.11.2015 for orders. So I kept the resignation in abeyance pending enquiry.”

Thus Ext. P27 decision stating that the resignation is kept in abeyance pending enquiry militates against the decision taken by the Speaker on 13.11.2015 on the letter of resignation put in by the petitioner. Which precedes the other is left to anybody's guess in the absence of any counter affidavit by the Speaker detailing the order in which the decisions were taken. One thing is crystal clear in that the petitioner was not served with a copy of the decision of the Speaker dated 13.11.2015 on the letter of resignation consciously put in by him. The said decision came to light only when the files relating to the disqualification of the petitioner produced by the Special Government Pleader were perused. The petitioner obviously did not get a chance to incorporate a specific challenge against the decision dated 13.11.2015 on his letter of resignation. But all the records leading to Ext. P27 decision have been sought to be called for and quashed by the petitioner by the issue of a writ of certiorari or other appropriate writ. I therefore take it that the prayers in the writ petition are all comprehensive to take in the challenge to the decision of the Speaker on the letter of resignation of the petitioner as well.

9. Article 191 of the Constitution of India specifies the disqualifications for being chosen as and for being a member of the Legislative Assembly or Legislative Council of a State. Article 191(2) which is relevant stipulates that a person shall be disqualified for being a member of the Legislative Assembly of a State if he is so disqualified under the Tenth Schedule. Para 2 of the Tenth Schedule details the disqualification on the ground of defection of a member of a House belonging to any political party and Para 2(1)(a) thereof is as follows:-

“2. Disqualification on the ground of defection.- 

(1) Subject to the provisions of paragraphs 4 and 5, a member of a House belonging to any political party shall be disqualified for being a member of the House - (a) if he has voluntarily given up his membership of such political party; or” 

Para 6(1) of the Tenth Schedule clarifies that the question as to whether a member of a House has become subject to disqualification under this Schedule shall be referred for the decision of the Speaker of such House. The decision so taken by the Speaker of the House shall be final and only then shall a person cease to be a member of the Legislative Assembly of the State. The natural consequence of disqualification of a member of the Legislative Assembly is the vacation of his seat evident by Articles 190 and 191 of the Constitution of India.

10. It is ofcourse true that such a decision shall be 'with reference to the date on which the member voluntarily gives up his membership' and not with reference to the date of decision of the Speaker. The member of the Legislative Assembly would have incurred the disqualification much before even though the decision of the Speaker is made ex-post facto. The words 'with reference to' or 'with effect from' can only mean the above and the decision of the Speaker on the status of the member can only be prospective. I am fortified in this conclusion by the decision of the constitution bench in 

Rajendra Singh Rana and Others v. Swami Prasad Maurya and Others [(2007) 4 SCC 270]. 

It is held therein as follows:-

“34. As we see it, the act of disqualification occurs on a member voluntarily giving up his membership of a political party or at the point of defiance of the whip issued to him. Therefore, the act that constitutes disqualification in terms of para 2 of the Tenth Schedule is the act of giving up or defiance of the whip. The fact that a decision in that regard may be taken in the case of voluntary giving up, by the Speaker at a subsequent point of time cannot and does not postpone the incurring of disqualification by the act of the legislator. Similarly, the fact that the party could condone the defiance of a whip within 15 days or that the Speaker takes the decision only thereafter in those cases, cannot also pitch the time of disqualification as anything other than the point at which the whip is defied. Therefore in the background of the object sought to be achieved by the Fifty-second Amendment of the Constitution and on a true understanding of para 2 of the Tenth Schedule, with reference to the other paragraphs of the Tenth Schedule, the position that emerges is that the Speaker has to decide the question of disqualification with reference to the date on which the member voluntarily gives up his membership or defies the whip. It is really a decision ex post facto. The fact that in terms of para 6 a decision on the question has to be taken by the Speaker or the Chairman, cannot lead to a conclusion that the question has to be determined only with reference to the date of the decision of the Speaker. An interpretation of that nature would leave the disqualification to an indeterminate point of time and to the whims of the decision-making authority. The same would defeat the very object of enacting the law. Such an interpretation should be avoided to the extent possible.”

(emphasis supplied) 

Thus the decision of the Speaker as regards the disqualification for being a member of the Legislative Assembly cannot have any retroactive operation even if the disqualification was incurred long back. 

11. The following excerpt from the judgment of Lord Goddard C.J. of the Queen's Bench Division in 

Re A Solicitor's Clerk [(1957) 3 All E.R. 617] 

is apposite:-

“It enables an order to be made disqualifying a person from acting as a solicitor's clerk in the future and what happened in the past is the cause or reason for the making of the order; but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables a disqualification to be imposed for the future which no way affects anything done by the appellant in the past.”

Also Rules have been framed under Para 8 of the Tenth Schedule of the Constitution of India to give effect to the provisions therein and Para 8(1)(d) thereof refers to the Rules relating to the procedure. The Members of The Kerala Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 are framed thereunder which is an eye opener. A declaration that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule is essential under Rule 8 thereof which is extracted hereunder:-

“8. Decision on Petitions 

(1) At the conclusion of the consideration of the petition the Speaker, or as the case may be, the member elected under the proviso to paragraph (1) of paragraph 6 of the Tenth Schedule shall by order in writing,- 

(a) dismiss the petition, or 

(b) declare that the member in relation to whom the petition has been made has become subject to disqualification under the Tenth Schedule, and cause copies of the order to be delivered or forwarded to the petitioner, the member in relation to whom the petition has been made and the leader of the Legislature party, if any, concerned. 

(2) Every decision declaring a member to have become subject to disqualification under the Tenth Schedule shall be reported to the House forthwith if the House in is session, and if the House is not in session, immediately after the house reassembles. 

(3) Every decision referred to in sub-rule (1) shall be published in the bulletin and notified in the Official Gazette and copies of such decision forwarded by the Secretary to the Election Commission of India and the State Government.”

(emphasis supplied) 

The irresistible conclusion therefore is that the petitioner continued to be a member of the Legislative Assembly till a declaration was made in terms of the above Rule read with Para 6(1)(a) of the Tenth Schedule.

12. It is not in dispute that the petitioner submitted his letter of resignation to the Speaker in person on 12.11.2015 even before the Speaker rendered Ext.P27 decision of disqualification on 13.11.2015. The petitioner had a constitutional right to tender his resignation in order to have his seat vacated under Article 190(3)(b) of the Constitution of India. The resignation shall not be accepted as per the proviso thereof only if the Speaker is satisfied that the same is not voluntary or genuine in the circumstances. The words 'voluntary' and 'genuine' occurring in the proviso to Article 190(3)(b) only mean 'out of own free will' and 'not counterfeit' and nothing at all more. The words 'not voluntary or genuine' pertain to the letter of resignation only and it is immaterial as to whether the reasons are genuine or not going by the plain constitutional provisions. The letter of resignation by writing of the petitioner under his hand addressed to the Speaker under Article 190(3)(b) of the Constitution adds solemnity to it. The efficacy of such a resignation letter can be whittled down only if there are supervening factors that vitiate the same as clarified in the proviso to Article 190(3)(b) of the Constitution. A suspicion that the letter of resignation is not voluntary or not genuine need arise only when the same is handed over to the Speaker by a person other than the signatory. What more is required to show that the letter of resignation is voluntary and genuine when the same is presented in person by a member of the Legislative Assembly to the Speaker ? Chief Justice U. L. Bhat (as he then was) speaking for the Bench in 

Vikram Singh v. Shri. Ram Ballabhji Kasat and Others [AIR 1995 M.P. 140] 

observed as follows:-

“We do not think an enquiry is required in every case by the proviso to Article 190(3)(b). The provision empowers the Speaker to make such enquiry as he thinks fit. If he is satisfied that the resignation is not voluntary or genuine from information received and after making such enquiry as he thinks fit, he shall not accept the resignation. When the second respondent personally tendered the resignation to the Speaker and assured him about the voluntary nature, the Speaker could have had no doubt on that score. It is not alleged that the Speaker had any information which could create a doubt in his mind. Nevertheless, he put necessary questions and elicited answers from second respondent. The procedure adopted by the Speaker constitutes “enquiry”. The provision does not stipulate any particular type of enquiry. The nature of enquiry depends on facts and circumstances of each case.”

(emphasis supplied) 

There is no finding in Ext. P27 decision that the Speaker is satisfied from information received or otherwise and after making such enquiry as he thought fit that the resignation is not voluntary or genuine. A reading of Ext. P27 decision would at best indicate that the letter of resignation put in by the petitioner is to tide over the proceedings for disqualification and is not 'bonafide'. Lack of bonafides on the part of a member of Legislative Assembly in submitting the letter of resignation is not a ground enough for its non-acceptance by the Speaker. The letter of resignation does not cease to be so solely because it was submitted on the day on which the petitioner filed a notes of argument or a petition to reopen evidence. The petitioner cannot be blamed for guarding his stand in the proceedings for his disqualification as he was unsure of the response of the Speaker on his resignation.

13. A perusal of the notification issued by the Secretariat of the Kerala Legislature consequent on Ext. P27 decision of the Speaker on the disqualification of the petitioner throws more light. It is extracted hereunder:-

“KERALA GAZETTE EXTRAORDINARY PUBLISHED BY AUTHORITY 

-------------------------------------------------------------------------------- 

Vol. IV Thiruvananthapuram, 1 3 th November 2015 No. 2504 Friday 27t h Thulam 1191 22 n d Karthika 1937 

---------------------------------------------------------------------------------------------- 

SECRETARIAT OF THE KERALA LEGISLATURE 

NOTIFICATION No. 4010/Table - 1/2015/Leg. Dated, Thiruvananthapuram,13th November, 2015. 

In exercise of the power under Article 191(2) and paragraph 2(1)(a) of the Tenth Schedule, of the Constitution of India read with Rule 8 of the Members of the Kerala Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, the Speaker, Kerala Legislative Assembly has declared that Shri. P.C. George, elected Member of the Kerala Legislative Assembly from “101-Poonjar” Assembly Constituency has become subject to disqualification under the Tenth Schedule. Consequent on the disqualification of Shri P.C. George, the “101-Poonjar” seat in the Kerala Legislative Assembly has become vacant with effect from 13-11-2015, the Date of Order of Hon. Speaker. 

P.D. SARANGADHARAN 

Secretary Legislative Assembly" 

It is abundantly clear therefore that the seat held by the petitioner as a member of the Kerala Legislative Assembly became vacant only on 13.11.2015 consequent on Ext. P27 decision of the Speaker.

14. It is the constitutional right of the petitioner to tender his resignation as a member of the Kerala Legislative Assembly under Article 190(3) of the Constitution of India. The petitioner had submitted his letter of resignation while he was still a member of the Kerala Legislative Assembly and at least one day prior to the date of Ext. P27 decision. The letter of resignation was liable to be accepted in the absence of any inputs to the effect that the same is not voluntary or genuine in terms of the proviso to Article 190(3). Ext. P27 decision of the Speaker inter alia states that the resignation is kept in abeyance pending enquiry implying thereby that no decision in that regard had been taken as yet. The constitutional right of the petitioner as a member of the Kerala Legislative Assembly to have his letter of resignation considered has been trampled upon. It was a malafide action on the part of the Speaker to keep the letter of resignation put in by the petitioner pending and disqualifying him in the interregnum. It can reasonably be inferred that such a course was deliberately adopted in order to facilitate the petitioner to have an ignominious exit from the Kerala Legislative Assembly.

15. It is not uncommon for a member of a Legislative Assembly to tender his resignation before an ignominious exit therefrom pursuant to the proceedings for disqualification initiated. Mr. Taraman Rai against whom a petition for disqualification on the ground of defection was filed on 03.06.1994 tendered his resignation from the Sikkim Legislative Assembly on 17.06.1994. His resignation was accepted by the Speaker of the Assembly on 18.06.1994 and the petition for disqualification on the ground of defection was declared infructuous. Even the resignation put in by a learned Judge of the Calcutta High Court was accepted before the proceedings for impeachment were taken up in the Parliament. The Speaker in the instant case deliberately deferred a decision on the issue of resignation put in by the petitioner as a member of the Assembly. This is notwithstanding the fact that the Speaker was alerted about the same on 13.11.2015 by another member of the Assembly by name Mr. A.K. Balan. The letter addressed by the said member to the Speaker of the Kerala Legislative Assembly (available in the files) is seen acknowledged on 13.11.2015 itself. What is the purpose in considering the letter of resignation by the Speaker after the petitioner has vacated his office as a member of the Kerala Legislative Assembly ? The letter of resignation has only to be thrown to the waste bin since the same has ceased to be of any relevance after the disqualification of the petitioner as a member of the Assembly. The procedure adopted by the Speaker is not a mere irregularity but a conscious annihilation of the constitutional right of the petitioner.

16. The second respondent contended that the proceedings of the Speaker in the Legislature of a State is beyond judicial review and that a bar is contained in Article 212 of the Constitution of India. Article 212 is as follows:-

“212.Courts not to inquire into proceedings of the Legislature.- 

(1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. 

(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”

Reliance is also placed on Para 6(2) of the Tenth Schedule of the Constitution of India which is to the following effect: 

“(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.”

A similar contention urged was turned down three decades ago by one of the erudite Judges of this Court (Mr. Justice M.P. Menon) in 

Sudarsana Babu v. State of Kerala [1983 KLT 339] 

as follows:-

“Article 212(2) provides immunity only as regards exercise of powers for regulating procedure and conduct of business; and it is only reasonable to think that if the rules of procedure are themselves subject to the Constitution, exercise of powers thereunder must also be subject to the same limitation. In other words, the officers and members of a legislature cannot claim immunity when they exercise their powers in a manner opposed to the Constitution. And who is to decide whether they have transgressed the limits of their power ? Article 226 of the Constitution confers power on the High Court to enforce fundamental and other rights; this power is not subject to Article 212. To my mind, therefore when a citizen approaches the court with a complaint that his fundamental or other constitutional rights are being invaded, this Court has the power to look into it even if the complaint pertains to a matter covered by Art. 212.” 

The question whether there is power of judicial review under Article 226 of the Constitution of India against the final decisions taken by the Speaker of a Legislative Assembly is no more res integra. 

A Constitution Bench of the Supreme Court in 

Kihoto Hollohan v. Zachillhu and Others [1992 Supp. (2) SCC 651] 

had occasion to observe in this regard as follows:-

“That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution insofar as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.”

The constitution Bench of the Supreme Court in 

Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others [(2007) 3 SCC 184] 

summarised the principles and the pertinent are the following:-

“(a) Parliament is a co-ordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny; 

(b) The constitutional system of Government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere co-ordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasijudicial decision; 

(c) The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts; 

xxxxx 

(i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;” 

Yet another constitution Bench of the Supreme Court in 

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and Others [(2010) 6 SCC 113] 

has observed as follows:-

“Articles 122(1) and 212(1) make it amply clear that courts cannot inquire into matters related to irregularities in observance of procedures before the legislatures. However, we can examine whether proceedings conducted under Article 105(3) or 194(3) are 'tainted on account of substantive or gross illegality or unconstitutionality'. The facts before us do not merely touch on a procedural irregularity.”

This principle has again been reiterated by the Supreme Court in 

Balachandra L. Jarkiholi and Others v. B.S. Yeddyurappa and Others [(2011) 7 SCC 1] 

wherein it is held as follows:-

“153.On the question of justiciability of the Speaker's order on account of the expression of finality in Para 6 of the Tenth Schedule to the Constitution, it has now been well settled that such finality did not include the powers of the superior courts under Articles 32, 226 and 136 of the Constitution to judicially review the order of the Speaker. Under Para 2(1)(a) of the Tenth Schedule, the Speaker functions in a quasi-judicial capacity, which makes an order passed by him in such capacity, subject to judicial review. The scope of Para 2(1)(a) of the Tenth Schedule to the Constitution, therefore, enables the Speaker in a quasi-judicial capacity to declare that a Member of the House stands disqualified for the reasons mentioned in Para 2(1) (a) of the Tenth Schedule to the Constitution.”

Therefore it is beyond any pale of doubt that the quasijudicial decisions of the Speaker on the resignation and disqualification of the petitioner as a member of the Kerala Legislative Assembly is open to judicial review.

17. The second respondent contended that it is not the business of this Court to intrude into the discretion which the Constitution of India requires of the Speaker in the resignation of a member. Reliance is placed on 

Panna Lal Agyan and Others v. Hon'ble Speaker Sri. Balram Jakgad and Others [AIR 1998 Allahabad 167] 

wherein it is held as follows:-

“6. It is not for this Court, thus, to interfere with what otherwise is a subject matter of enquiry and satisfaction of the Speaker. Upon a resignation being submitted and forwarded to the Speaker of the Lok Sabha, it is not the business of this Court to intrude into a discretion which the Constitution requires of the Speaker. Should the petitioners desire to express anything on the resignation of the Member of Parliament then this Court is not the forum for it. If what they have to say partakes of the nature of information received by the Speaker, then the satisfaction of the Speaker to accept or not to accept the resignation is exclusively at his discretion.”

But such discretion exercised by the Speaker should be free from jurisdictional errors like violation of the constitutional mandate, malafides, non-compliance with rules of natural justice and perversity. The Speaker while holding office acts absolutely impartial without any leaning towards any party including the party from which he was elected to the house. The Speaker is expected to be so while exercising a quasi-judicial function (See:

Balachandra L. Jarkiholi and Others v. B.S. Yeddyurappa and Others [(2011) 7 SCC 1]). 

The Speaker has acted with malafides in violation of the constitutional mandate and his discretion borders on perversity in rendering the impugned decisions.

18. The second respondent further contended that the Speaker is bound to render a decision in terms of Paras 2 and 6 of the Tenth Schedule of the Constitution of India whether or not the petitioner had resigned. Reliance was placed on the following observations in 

Dr. Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council and Others [(2004) 8 SCC 747]:

“Paragraph 6 of the Schedule does not contemplate moving of a formal petition by any person for assumption of jurisdiction by the Chairman or the Speaker of the House. The purpose of Rules 6 and 7 is only this much that the necessary facts on account of which a member of the House becomes disqualified for being a member of the House under Paragraph 2, may be brought to the notice of the Chairman. There is no lis between the person moving the petition and the member of the House who is alleged to have incurred a disqualification. It is not an adversarial kind of litigation where he may be required to lead evidence. Even if he withdraws the petition it will make no difference as a duty is cast upon the Chairman or the Speaker to carry out the mandate of the constitutional provision viz. The Tenth Schedule.”

True it is that a duty is cast on the Speaker to carry out the constitutional mandate contained in the Tenth Schedule so long as the person against whom the allegations are made continues to be a member. But the constitutional mandate to render a decision on disqualification ends the moment the member of the Legislative Assembly puts in his letter of resignation. The letter of resignation shall not be accepted only if the conditions laid down in the proviso to Article 190(3) of the Constitution are satisfied. There is paucity of reasons in the instant case to hold that the resignation put in by the petitioner is not liable to be accepted rendering the decision of the Speaker vulnerable to challenge. The decisions of the Speaker rendered in the capacity of a quasi-judicial authority smacks of malafides apart from infringing the constitutional rights of the petitioner.

19. The second respondent added that the petitioner cannot abort the proceedings for disqualification initiated under the Tenth Schedule of the Constitution of India by merely tendering his resignation. An analogy was drawn to the provisions contained in the Representation of the People Act, 1950 and my attention was invited to the decision in 

D. Sanjeevayya v. Election Tribunal Andhra Pradesh [AIR 1967 SC 1211]. 

It is held therein as follows:-

“When an election petition has been referred to a Tribunal by the Election Commission and the former is seized of the matter, the petition has to be disposed of according to law. The Tribunal has to adjudge at the conclusion of the proceeding whether the returned candidate has or has not committed any corrupt practice at the election. Secondly, it has to decide whether the second respondent should or should not be declared to have been duly elected. A returned candidate cannot get rid of an election petition filed against him by resigning his seat in the Legislature.”

The above case is clearly distinguishable in as much as the election petitioner therein had claimed a further declaration in terms of Section 84 of the said Act wherein a decision under 98(c) of the said Act was necessary. Any other candidate can be duly declared to be elected only if the election of the returned candidate is declared void for which a trial of the election petition is mandatory. The said decision has no application to the facts of the present case where the petitioner need not be declared as disqualified in case his resignation is accepted.

20. I do not for a moment hold that the petitioner has not incurred disqualification on account of voluntarily giving up his membership in his political party in the circumstances obtaining. But I am of the firm view that a decision on that count was unnecessary and unwarranted in the wake of the fact that the petitioner had put in his resignation before. A decision on the question of disqualification of the petitioner was imminent had the Speaker not accepted his resignation within the frame work of the proviso to Article 190(3). The principle that a resignation will not come into effect unless accepted cannot be applied since this is not a case of a contractual relationship between an employer and employee. The very fact that the decision of the Speaker on the letter of resignation did not see the light of the day until the files called for were produced in Court raises many eyebrows. A reading of Rule 169 of the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly would indicate that a communication of the decision was intended. Of course the above Rules only specify the procedure to be followed by the Speaker in the event of the letter of resignation put in by a member being accepted and not when it is not accepted. Suffice it to say that the petitioner cannot be blamed for not incorporating a specific challenge against the decision of the Speaker on the letter of resignation when he was kept in the dark. The petitioner on the other hand was made to believe that the resignation was kept in abeyance pending enquiry by the explicit words in Ext. P27 decision. Even the decision tagged along with the letter of resignation is not in the letter head of the Speaker and does not contain even his signature and seal on all the papers. I do not want to cast any aspersions on the Speaker as regards the manner in which the decision on the letter of resignation has found a place in the files produced. The Senior Counsel on both sides were permitted to peruse the files produced by the Special Government Pleader and there is no necessity to direct the issue of copies to them. I.A. No. 3281/2016 filed by the second respondent for this purpose at the fag end of the arguments is bereft of bonafides and I dismiss the same terming it as part of dilatory tactics.

21. I quash the decisions dated 13.11.2015 of the Speaker of the Kerala Legislative Assembly on the letter of resignation put in by the petitioner as well as on the issue of his disqualification (Ext. P27). The question whether the petitioner has incurred disqualification for voluntarily giving up the membership of his political party is left open to be considered anew if necessary. The Speaker is free to deal with the issues in accordance with law after affording to the parties an opportunity of being heard consistent with the principles of natural justice. 

The writ petition is allowed. No costs. 

sd/- 

V.CHITAMBARESH JUDGE 

DCS