Can’t say chief minister has assumed power to appoint speaker: High court

Mumbai: The Bombay HC on Wednesday dismissed two PILs concerning the assembly speaker’s election while questioning the basis for attributing public interest to the issue. “Unless it deals with public at large, cannot be entertained as a PIL,” a bench of chief justice Dipankar Datta and justice M S Karnik told senior counsel Mahesh Jethmalani appearing for BJP MLA Girish Mahajan and Subhash Jha for Mumbai resident Janak Vyas— the two petitioners.
Earlier this month, state advocate general Ashutosh Kumbhakoni had objected to the PILs. The HC had then directed a security deposit of Rs 2 lakh from Vyas and Rs 10 lakh from Mahajan as condition to hear the PILs. Kumbhakoni argued that Mahajan’s PIL was a “cut and paste” replica “including with the errors” of the first one filed by Vyas and filed only after the HC expressed its reservations and ordered Vyas to deposit 2 lakh. Both deposits now stand forfeited with the dismissal order.
The HC said the speaker’s election is by a vote and the petitioners cannot say the CM has taken upon himself the power to appoint a speaker. The PILs while challenging the new poll procedure said the voting method would be “the death of democracy.” The bench said last year too it was argued during the hearing on the MLC case that “democracy will collapse”. “Has democracy died because the Governor hasn't nominated the 12 MLCs yet?” the judges asked. “Our democracy is not as brittle…the unfortunate part in Maharashtra is this that the two highest constitutional functionaries do not trust each other.” Jethmalani said the governor had written after a week in February 2021 to set the date to elect a new speaker and again last June, but received no response.
Regarding the change in rules to elect the speaker, he said Mahajan was a member of the rule committee but the rule was amended while he and 11 other BJP MLAs were under suspension. The Supreme Court had said their suspension beyond the term of the assembly session was illegal. “On December 23, 2021, by a 4-3 majority the notification had replaced secret ballot with open ballot, allowed CM to choose the poll date, and said deputy speaker can be ‘selected’ by an unknown mode,” said Jethmalani, adding even the process of waiting for 10 days to receive objections was not followed.
The HC asked him if he had included these arguments in the PIL. He said the violation was generally, not specifically, pleaded. The bench asked, “Say if a rule is made in your absence, can you say the decision be reversed? No, it cannot be done.”
The bench which questioned the petitioner’s reliance on Article 163 (council of ministers to aid and advise governor) for legislative action, said, “The CM is only requesting the governor to fix a date for the Speaker election.” Jethmalani replied, “Legislative mala fides should not be presumed lightly but the conduct from the date that the governor asked the legislative secretariat with copy to deputy speaker to hold elections after Patole’s resignation till the rules were changed in December, is indicative of malafides.” Mahajan is likely to appeal in Supreme Court.