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Monday, January 25, 2021

Explained: What is Babulal Marandi’s writ petition questioning validity of Jharkhand Assembly Rules 2006?

The issue arose after Babulal Marandi was not given the status of Leader of Opposition after he merged his party - Jharkhand Vikas Morcha (Prajatantrik) - with the BJP

Written by Abhishek Angad , Edited by Explained Desk | Ranchi | December 30, 2020 12:07:02 pm
Babulal Marandi (Source: Facebook/Babulal Marandi)

On January 13, the Jharkhand High Court will hear a case on ‘legality and propriety’ of the power conferred to the Speaker of the Jharkhand Legislative Assembly under ‘Sub-Rule (1) of Rule 6 of the Rules, 2006’. In simpler terms: whether the original provisions can be overstepped by the rules framed by the legislature.

The issue arose after Babulal Marandi was not given the status of Leader of Opposition after he merged his party – Jharkhand Vikas Morcha (Prajatantrik) – with the BJP. The saffron party, however, appointed him Leader of BJP’s Legislature Party. Jharkhand Assembly Speaker Rabindra Nath Mahato issued him a notice attracting the 10th Schedule of the Constitution – which deals with defection. Subsequently a writ petition was filed challenging that notice and also the rules of Jharkhand Assembly.

What is the issue surrounding Babulal Marandi in Jharkhand Assembly?

Marandi’s JVM(P) merged with the BJP after its Central Working Committee (CWC)—which was attended by more than 130 members—gave its approval.

JVM(P) had won three seats in last year’s assembly elections. Apart from Marandi, the other two winners were Pradeep Yadav and Bandhu Tirkey. However, Yadav and Tirkey were dismissed from the party for anti-party activities. JVM(P)’s legislature party, with Marandi as the lone MLA, approved the legislature party’s merger with the BJP. The Election Commission, on March 6, stated that it was “satisfied” that JVM(P) merged with BJP relying on Jharkhand State Chief Electoral Officer’s report that there is no information of any group representing to “exist” as JVM(P). However, when Marandi sought the status of Leader of Opposition in the Assembly, the Speaker kept the matter in abeyance. Later, Marandi was served a notice by the Speaker citing Para 6 of the 10th Schedule – which deals with defection.

What did the Speaker’s notices say?

The Speaker’s letter dated August 18 said the initial letter sent by Marandi (asking for LoP status, dated February 16), attracts the 10th Schedule of the constitution and asked to file an explanation before the Speaker. However, there was no specific section mentioned as on what ground the notice was issued. “The notice was vague and without any sufficient imputation and it became difficult to reply on merit,” said senior advocate R N Sahay, who is representing Marandi. However, a reply was sent by Marandi questioning the suo motu power, after which another notice was issued by the Speaker stating that a case under 10th Schedule – for defection – has been instituted and Marandi was asked to appear before the Speaker’s Tribunal pertaining to the case.

Why was the matter challenged in court?

The petition was filed for quashing the two letters issued by the Jharkhand Assembly Speaker and also to grant interim relief till further orders. Marandi’s advocate RN Sahay said that the suo motu power as exercised by the Speaker – based on the Jharkhand Assembly 2006 rules – is in “contradiction and inconsistent” with Paragraph 6 of the 10th Schedule of the Constitution. “In our amended writ petition we have also questioned the validity of the Assembly Rules 2006…as the Speaker has no power to take suo motu cognizance to treat a case under Tenth Schedule of the Constitution of India,” Sahay said.

What is Paragraph 6 of the 10th Schedule of the constitution and why it is being brought up in this case?

Paragraph six of the 10th Schedule deals with the decisions on ‘disqualification on ground of defection’. It says that in case if any question 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 Speaker of such House and his decision shall be final. It means that any MLA, but not the Speaker himself, will have to file a complaint asking for disqualification on ground of defection. Referred being the key word here. But the Speaker was not out of his jurisdiction to take up the issue suo-motu, as he has exercised such power with the provision of Sub-Rule (1) of Rule 6 of the Rules, 2006, which confers power to the Speaker to take suo motu decision for determining the question of defection in view of the Tenth Schedule of the Constitution of India.

What did the State reply on Babulal Marandi’s petition to the court?

Advocate General Rajiv Ranjan submitted against any interim order as Marandi has not been able to make a ‘prima facie case’ that there was any ‘jurisdiction error’ on part of the Speaker so long as the provision of ‘Sub Rule (1) of Rule 6 of the Rules, 2006’ (power to take suo motu decision) is not declared to be ultra vires’(beyond the scope of legal authority). “…It cannot be said at this stage that the action taken by the Speaker is contrary to any statutory provision,” Rajiv Ranjan submitted. However, Sahay submitted that interim relief of keeping the Speaker’s notice in abeyance till the final decision of the writ was important as during the course of pendency of the writ, there is every likelihood that the Speaker will proceed with the matter and Marandi will suffer ‘irreparable loss and injury’ since his membership of the Legislative Assembly is at ‘stake’.

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What did the High Court order say?

A bench of Chief Justice Ravi Ranjan and Justice Sujit Narayan Prasad said that the issue has been raised about the legality of the Speaker’s notice as well as the Assembly Rule of 2006. Without adding anything on the merits of the case, the bench ordered solely for relief. On December 17, it said: “…the constitutional mandate remained to be superior and ignoring the constitutional mandate and putting reliance upon the subordinate legislation may not be proper, therefore, the writ petitioner has been able to make out a prima facie case about jurisdictional error in issuing the notice by the Speaker on the basis of the provision of Rule 6(1) of the Rules, 2006.” It gave relief to Marandi that the matter be kept under ‘abeyance’ until further orders. Although the court noted that the power of judicial review has strictly been barred and can be looked into only after the final decision is taken by the Speaker of the House, it added noting the harm it can cause to the petitioner: “…the stay of the further proceeding during pendency of the writ petition, no prejudice will be caused to anybody, the Speaker being the adjudicatory authority and not any affected party. Thus, in our view, balance of convenience also lies in favour of the writ petitioner.”

What has happened since then?

After the December 17 order, the ruling coalition has started filing various complaints to the Speaker stating that the merger of JVM(P) did not happen with provisions of Schedule 10th of the Constitution. Among the five complaints, one that The Indian Express has seen, is of Congress MLA Dipika Pandey Singh. In her complaint, she said that Pradeep Yadav and Tirkey, who constituted two-third members of JVM (P) legislature party, had given their consent to the merger of JVM(P) to Indian National Congress. “That the merger of JVM (P) solely at the behest of Babulal Marandi is not valid and is liable to be disqualified from being a member of Jharkhand Vidhan Sabha,” stated her complaint.

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