Justice delayed is justice denied, but who cares?

The Supreme Court dismissal of the DMK petition seeking disqualification of Deputy Chief Minister O Panneerselvam and 10 other MLAs of the ruling AIADMK, on technical grounds, has raised more questions than answers.

The SC on February 14, 2020, made clear its disapproval of a delay of over three years on the part of Tamil Nadu Assembly Speaker P Dhanapal in giving his ruling on the matter also noting that some action had been initiated as intimated by the Tamil Nadu Government (like giving notice). Therefore, the SC did not wish to intervene in the domain of the Speaker and dismissed the petitions, stating the Speaker’s order had not yet been delivered and was awaited.

A relevant question is whether the SC can fix a deadline within which the Speaker’s action has to be completed or not? There have been numerous cases where the courts have intervened in matters relating to the Legislature in various States, especially relating to disqualification, date of the confidence vote in the Assembly, etc. In recent times, the SC had intervened with respect to the Karnataka and Maharashtra situations and reduced the time given by the Speaker to the Chief Ministers Yeddiyurappa and Fadnavis to prove their majority on the floor of the House.

In the past, the Governor’s actions were considered not justiciable. Petitions against a Governor’s action of government dismissal were not entertained at all. Things changed with the ruling on the Kalyan Singh issue when the court rejected the Governor’s act of dismissal but also went on to restore Kalyan Singh as Chief Minister. There was no change in the laws of the land but a court ruling changed the political landscape in the country.

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On the issue of disqualification too, different courts have given different rulings, while some petitions on matters relating to the power of a Whip, right to contest elections, and so on, are still pending in the country. There has been no finality on the issue of disqualification, enough to state that this is settled law. In fact, it can even be said that what prevails at present is Unsettled Law.

The delay in decision-making at the level of Speakers or Governors has been a matter of debate. In the case of the 11 MLAs, whose membership of the Tamil Nadu Assembly on the ground that they defied the ruling AIADMK whip and voted against Chief Minister Edappadi Palaniswami government on the floor of the House, the matter has been pending for over three years.

In sharp contrast, the 18 MLAs, who voted for the AIADMK government on the same day but who fell out with the chief minister subsequently, were disqualified by the same Speaker later.

Tamil Nadu Assembly Speaker P Dhanapal disqualified 18 AIADMK MLAs under the anti-defection law on September 18, 2017. The AIADMK Chief Whip S. Rajendran had given a complaint to the Speaker that the MLAs had met the Governor and expressed lack of confidence in the Edappadi Palaniswamy government and therefore were liable to be disqualified. In the by-elections held for 22 seats, only one of the disqualified MLAs, Senthil Balaji who resigned from the AIADMK and joined the DMK, won the bypoll.

The Madras High Court upheld the nomination of three BJP representatives to the Puducherry Assembly though the nomination was criticized and questioned by Chief Minister Narayanaswamy of the Congress, and the Speaker V Vaithilingam had not accepted the nomination at that time.

The Madras High Court, after a gap of several months, held that it would not hear the petitions against the 11 MLAs of Tamil Nadu, as the Speaker had not yet given his ruling on the matter. The petitioners then moved the SC, seeking relief there. On more or less the same ground, the SC has refused to intervene, stating that it was for the Speaker to decide first on the matter.

The SC could have specified a time-frame within which the TN Speaker’s decision should be announced, is the general view in political and legal circles. When a petition against the Speaker’s order would come up before the SC, the apex court could then have delivered an order on the subject of disqualification, to lay down norms and guidelines to be followed in such cases. Such an order would guide courts in the States, presiding officers of the Assemblies and Governors just as the Kalyan Singh case order is cited to show the priority being given to the floor test.

Justice delayed, is Justice Denied, goes the proverb. What must be understood is that Justice delayed also provides an indirect benefit to a few. In this case, the indirect beneficiaries from the delay are Thiru Panneerselvam and 10 other MLAs of the AIADMK. These MLAs contend that the Whip order would not apply to them as the party faced a split after the death of J Jayalalithaa and there was no clear leadership in the party. Even so it can be argued that the order of the Whip applied to them, as they were still members of the AIADMK, and had not given up membership of the party.

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With only about a year to go for the announcement of the schedule for the general elections to the Tamil Nadu Assembly, the Speaker’s order (as and when it comes) would have little bearing on the fortunes of the AIADMK government as regular elections are round the corner anyway. However, a final verdict from the SC could throw light on the vexed issue of disqualification, and that is something which academicians and legal experts look forward to.