‘He has to sit down, hear the matter’: SC raps Maha Speaker Rahul Narwekar for delay in disqualification decision

The CJI told Solicitor General Tushar Mehta who appeared for the Speaker, “I think you must appraise the Speaker of the facts. We are giving an opportunity. If we don’t find that a proper time schedule is set out, we will issue a peremptory order fixing a time schedule. I am concerned. Our order is not being implemented which is a matter of concern.”

The court was hearing applications filed by the Shiv Sena (UBT) group against alleged delay in deciding petitions seeking disqualification of MLAs of the Eknath Shinde camp.

Appearing for the petitioners, senior advocates Kapil Sibal and A M Singhvi pointed out that as per the Speaker’s time schedule, “cross examination shall commence on November 23 and further date shall be given as per date convenient to parties and their counsel. As far as possible, cross examination shall be allowed twice a week. After completion of two weeks from recording of evidence, it shall be listed for final hearing.”

Sibal told the bench also comprising Justices J B Pardiwala and Manoj Misra that it will have to lay down what is the role of the Speaker acting as a tribunal under the 10th schedule to decide disqualification petitions.

Pointing out that the Assembly elections are due next year, he said what is happening is a farce.

The senior counsel pointed out that the Supreme Court had laid down previously that such proceedings shall involve only the summary procedure.

Appearing for the Speaker, Mehta said that the Speaker is upholding principles of natural justice by stating that it is necessary to give opportunity to parties to lead evidence in the interest of justice and to avoid any miscarriage of justice.

The petitioners, said Mehta, were frequently approaching the court seeking directions that the Speaker should decide or not decide in a particular way and asked “would your lordships consider doing that?”

“That’s not the point. We are not going to say how he should decide but he must give the impression that he has taken up the matter seriously. All this time since June, what has happened in this matter, nothing, no action. And when the matter is coming up before this court, some hearing is taking place. You should not make it into a charade. You have to have proper hearing before the Speaker. He must hear it day to day and complete the hearing. He can’t say I will hear twice a week and then after November I will decide when to have the final hearing,” said the CJI.

As Metha raised objections to suggestions about asking the Speaker to do day to day hearings, the CJI said, “He is an election tribunal exercising his functions as a speaker in the House. A tribunal which is amenable to the jurisdiction of this court.”

The Solicitor General insisted that nevertheless, the Speaker is a constitutional functionary and added, “Your Lordships would not do this to other tribunals, that give us a day to day account of what you do or you hear day to day.”

The petitioners, said the Mehta, wanted the court to direct the Speaker to carry out only prima facie determination and to modify the procedure and the time schedule fixed by the Speaker. He added on Thursday, they had filed some fresh documents. “The adjudicating authority also has constraints,” said Mehta.

The bench said it will hold the petitioners down to their documents and told Sibal, “Now you freeze the documentary material. Every time you file something new, you give ammunition to the Speaker.”

Sibal, however, denied that any new documents were filed. The CJI said, “We issued notice of this on July 14. Thereafter we passed an order on September 18 expecting that the Speaker will set down a reasonable time schedule for completing the hearings. Now, if we find that there is no such effort on the part of the Speaker, we are constrained to say that he must take a decision within a period of two months because you know six months have elapsed. Some measure of seriousness has to be imparted to the tribunal under the 10th schedule. Nobody is telling you how to decide. That’s his discretion. What is happening is this — that these hearings before the tribunal under the 10th schedule, I am not making a generalised statement, they should not be reduced into a charade. These are very serious matters. We have to engender a sense of confidence in the process.”

Mehta said, “I bow down but there would be a limit to litigants coming before Your Lordships like students complaining before the teacher and say he is doing this, he is doing that.”

Appearing for the Shinde faction MLAs, senior advocate Mukul Rohatgi said the petitioners saying no evidence should be led is contrary to all norms.

To this the CJI said, “But equally, the decision has to be taken well before the next election. The idea should not be that well, I will allow this to go on merrily so that ultimately you render all this infructuous. The reason why we don’t set a time schedule is because we respect the fact that it’s the Speaker of the coordinate branch of the government, namely the legislature. But if they are not doing it, then we have to take them to account by saying you are after all an election tribunal and you will have to decide.”

The court also asked “why are you averse to a decision by the Speaker? In fact, you have filed applications for disqualification also. If you are confident of your applications, you should be keen to go on with your applications also”.

“But it should not be that I should argue without evidence as the prayer is seeking,” Rohatgi submitted.

As he raised questions on whether a writ of the court can lie over the Speaker, the CJI said, “The writ of this court is very clear. We pay deference to every co-equal branch of the government. But the writ of this court has to run where we find that there is a decision in breach of constitutional prescriptions. Or if there is a failure to take a decision as is mandated by the Constitution.”

To Rohatgi’s argument that the proceedings before the Speaker in the matter enjoy immunity under Article 212 of the constitution, the CJI said, “These are not proceedings which take place on the floor of the House and hence do not enjoy the immunity.”

He said, “We are not even saying don’t let in evidence. They may ask for the moon, we may not grant it. So what we suggest is you and the Advocate General of Maharashtra, please sit down with the Speaker, appraise him now he has to proceed; he requires little bit of assistance is obvious. I am concerned about maintaining the dignity of our court. If our orders are not implemented, it’s a matter of concern for us. We are duty bound to uphold the dignity of our court.”

Mehta assured the court that he will take instructions on fixing the time schedule as suggested by the court. The bench will hear the matter next on October 17.