Tamil Nadu's '18 MLAs disqualification case' - Two judgments, no verdict: HC bench split over MLAs case Thursday June 14,2018

Two judges took five months and then agreed to disagree

 The 18 AIADMK MLAs loyal to T T V Dhinakaran were disqualified for having submitted a representation to the Tamil Nadu governor withdrawing support to the chief minister Edappadi K Palaniswami on September 18, 2017. Two days later, a single judge barred the Election Commission of India (ECI)from treating the seats vacated by the 18 MLAs as vacant and holding byelections. The case then came before the first bench, which reserved its judgment on January 24 after listening to a marathon argument

Political uncertainty in Tamil Nadu is bound to continue for some more time as the first bench of the Madras high court on Thursday June 14,2018 delivered a split verdict in the '18 MLAs disqualification case'.

 While Chief Justice Indira Banerjee upheld the assembly speaker's September 18, 2017 order stripping 18 rebel AIADMK legislators of their posts, saying scope of judicial review was limited, her companion judge Justice M Sundar quashed the speaker's decision, saying the MLAs' act of alleged defection was not 'clear, categoric and unambiguous." They were disqualified on September 18, 2017 under anti-defection rules for having submitted a memorandum to the Tamil Nadu governor withdrawing their support to chief minister Edappadi K Palaniswami. On September 20, the court asked the election commission not to treat them as vacancies and hold by-elections
 The first bench reserved its order on January 23.

On Thursday, in a development that would prolong the uncertainty on the status of the MLAs, and consequently the stability of the government, the judges failed to reach a consensus over the issue. They referred the matter to the next senior-most judge of the court so as to be posted before a third judge for hearing. The bench also made it clear that the bar on holding bypoll to 18 seats would continue. In her order, Chief Justice Banerjee said that though orders of the speaker under the Tenth Schedule were amenable to judicial review, the scope of such review is limited to violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

A mere irregularity in procedure can have no bearing on the decision,” the judge added.

However, Justice Sundar set aside the order saying it was hit by all four grounds of judicial review -- perversity, non-compliance with principles of natural justice, mala fides and violation of constitutional mandate.”

AIADMK legislator S T K Jakkaiyan was another flashpoint. Though he was among the 19 MLAs who submitted the damning memorandum to the governor, was issued a showcause notice and he submitted replies too, he was not disqualified as he had crossed over to the ruling side.

“It is not necessary to enter into the question of whether the disqualification has rightly or wrongly been dismissed against Jakkaiyan. Suffice it to note that there can be no equality to a wrong and two wrongs do not make a right,” said Chief Justice Banerjee. But Justice Sundar said: “The court is unable to brush aside the complaint that different yardsticks have been applied to them on one hand and S T K Jakkaiyan on the other hand in the same impugned order, depending on political exigencies.” When it is the stated position of the speaker that the Tenth Schedule is attracted the moment the petitioners gave representation to the governor, Jakkaiyan also should stand disqualified. “After all, the age-old adage is ‘what is sauce to the goose is sauce to the gander too', he said.

While the Chief Justice said the speaker’s order was a “possible, if not plausible” view that could not be called unreasonable, irrational or perverse, Justice Sundar said: “It can’t be said that there is clear, categoric, unambiguous answer against the writ petitioners to the question as to whether they voluntarily gave up their membership the party on August 22, 2017 and August 24, 2017 when AIADMK political party itself did not exist as an entity in that same form owing to ECI being seized of the matter.”