Supreme Court Invoked Special Powers to Remove a Minister | 19 Mar 2020

Recently, the Supreme Court invoked its special powers under Article 142 of the Constitution to remove a Manipur minister.

The Supreme Court removed Thounaojam Shyamkumar Singh, from the state cabinet and restrained him “from entering the Legislative Assembly till further orders”.
A disqualification petition against the minister was pending before the Speaker since 2017 but the Speaker failed to take the decision within a reasonable time period.
The Speaker also failed to take any decision within the stipulated time period of 4 weeks as provided by the Supreme Court in the 21st January, 2020 order.
Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature. In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the Court said it was “constrained” to invoke the court’s extraordinary powers under Article 142 of the Constitution.
Earlier, the Manipur High Court, in this matter, had found grounds for disqualification under the Tenth Schedule but stopped short of issuing directions.
- The reason being that question of whether a High Court can direct a Speaker to decide on a disqualification petition within a time frame is pending before a Supreme Court Bench.

The court in general said that “the Speaker, in acting as a Tribunal under the Tenth Schedule, is bound to decide disqualification petitions within a reasonable period”, which “will depend on the facts of each case.”
The Supreme Court also held that disqualification petitions under the tenth schedule should be adjudicated by a mechanism outside Parliament or Legislative Assemblies.
The Court has suggested a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice as a new mechanism. However, this would require an amendment to the Constitution.
- Currently, disqualification of members of a House/Assembly is referred to the Speaker of the House/Assembly.
Rationale behind Court’s suggestion was to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule.

Disqualification under the Tenth Schedule

The Anti-Defection Law was passed in 1985 through the 52^nd amendment to the Constitution. It added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”.
According to it, a member of a House belonging to any political party becomes disqualified for being a member of the House, if
- he voluntarily gives up his membership of such political party; or
- he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

Exceptions to the disqualification on the ground of defection (Two cases)

If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of the office.

Powers of Speaker with regard to Anti-Defection Law

Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
After the Kihoto Hollohan case (1993), the Supreme Court declared that the decision of the presiding officer is not final and can be questioned in any court. It is subject to judicial review on the grounds of malafide, perversity, etc.

Article 142

It provides discretionary power to the Supreme Court as it states that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.