Case Note & Summary
The Indian National Congress and several of its MLAs filed a writ petition under Article 226 before the High Court of Bombay at Goa, seeking a declaration that respondent no. 6, Vishwajit Rane, had incurred disqualification under the Tenth Schedule to the Constitution and was ineligible to hold office or contest elections for five years. The dispute arose from the formation of the Goa Government after the 2017 Assembly elections, where the Congress won 17 seats and the BJP 13. Despite the Congress's larger tally, the Governor invited the BJP to form the government. The Supreme Court, on a petition by the Congress, ordered a floor test. The Congress issued a whip directing its MLAs to vote against the BJP. Respondent no. 6, who had been elected on a Congress ticket, was absent during the floor test; the BJP won. Later that day, he resigned from the Assembly membership to the pro tem Speaker, who accepted the resignation. He also resigned from the Congress party and joined the BJP, becoming a Minister. He subsequently won a by-poll on a BJP ticket. The petitioners contended that this sequence of events constituted a fraud on the Constitution. They argued that by absenting himself from the floor test in defiance of the party whip, Rane attracted disqualification under the Tenth Schedule. The acceptance of his resignation by the Speaker was challenged as invalid because, according to the petitioners, the Speaker could not accept resignation when a disqualification was imminent. They further argued that once the resignation was accepted, the Speaker lost jurisdiction to decide the disqualification, leaving the High Court as the only forum to grant relief. The court, however, found these contentions unsustainable. It framed four principal questions: whether a resignation ousts the Speaker’s jurisdiction to decide a disqualification that arose when the person was a member; whether the High Court could decide such disqualification under Article 226; what disqualification, if any, followed from defiance of a whip; and whether the Speaker is bound to refuse resignation to retain jurisdiction over a potential disqualification petition. In its analysis, the court held that under the Tenth Schedule, disqualification does not operate automatically; it results only from a decision of the Speaker. Since Rane had resigned before any petition was filed, the Speaker had no jurisdiction to adjudicate any disqualification. The court emphasized that the Speaker’s function is exclusive and cannot be usurped by the High Court in writ proceedings. It also clarified that the disqualification under the Tenth Schedule does not entail a five-year bar from contesting elections; a member so disqualified is only removed from the seat and is free to seek re-election. Consequently, the prayers for a declaration of disqualification, invalidation of the resignation, and prohibition on contesting elections were all refused. The writ petition was dismissed.
Headnote
A) Constitutional Law - Disqualification under Tenth Schedule - Jurisdiction of Speaker - Constitution of India, Tenth Schedule, Paragraph 2(1)(a),(b) - The Speaker has exclusive jurisdiction to determine disqualification of a member; upon resignation of the member, the Speaker ceases to have jurisdiction, and no disqualification attaches until a decision is rendered. Held that resignation removed the basis for the Speaker to decide the disqualification petition; the High Court cannot exercise extraordinary jurisdiction under Article 226 to override this limitation. (Paras 2.6, 2.7) B) Constitutional Law - Writ Jurisdiction - Article 226 - High Court cannot usurp Speaker's function - The High Court refused to issue a declaration or mandamus to treat the respondent as disqualified, because that would amount to exercising the Speaker's discretion under the Tenth Schedule, which is a constitutional function not amenable to such writ relief. (Paras 2.6, 2.7) C) Election Law - Disqualification for Defection - Consequences under Tenth Schedule - The court clarified that the disqualification under the Tenth Schedule does not entail a five-year bar from contesting elections; it only results in vacation of seat upon Speaker's decision, and the member is free to contest re-election. (Para 2.7(a))
Issue of Consideration
(a) Does the resignation of a member oust the Speaker's jurisdiction to decide a disqualification that arose when the person was a member? (b) Can the High Court decide such disqualification under Article 226? (c) What disqualification, if any, follows from defiance of a whip? (d) Is the Speaker bound to refuse resignation to retain jurisdiction over a potential disqualification petition?
Final Decision
Writ petition dismissed. Held that resignation ousts Speaker's jurisdiction; High Court cannot decide disqualification under Article 226; disqualification under Tenth Schedule is not automatic and does not entail five-year bar on re-election; relief refused.
Law Points
- Disqualification under Tenth Schedule is not automatic
- it requires Speaker's decision
- resignation before decision ousts Speaker's jurisdiction
- writ under Article 226 cannot be issued to decide disqualification in place of Speaker
- no five-year bar on re-election upon disqualification for defection
