Pak SC cites two Indian rulings to back decision on Gilani

Behind the Pakistan Supreme Court judgment "disqualifying" Prime Minister Yousaf Raza Gilani on Tuesday are two 2007 judgments of India's Supreme Court which essentially address the question of judicial authority vis-a-vis the Speaker's authority.

The two Indian Supreme Court cases — along with six judgments in Pakistan's courts — have been cited to demolish Pakistan's National Assembly Speaker Dr Fehmida Mirza's ruling last month against sending a reference for Gilani's disqualification to the Election Commission of Pakistan. Mirza is a senior leader of Pakistan People's Party and is considered close to President Asif Ali Zardari.

The Indian cases referred to by the Pakistani apex court establish two crucial points: First, the authority of the constitutional court to exercise power of judicial review if the decision of the Speaker is unconstitutional and against the Rules of Business of the House. Second, they establish that the power to disqualify an MP or MLA lies with the Election Commission and not the Speaker, obviously to avoid politically motivated decisions taken by the latter.

A gist of the two Indian cases cited in the Pakistani Supreme Court's verdict:

Rajendra Singh Rana vs Swami Prasad Maurya

In this case, the court ruled that the Speaker has to act fairly as a "Tribunal" under the Tenth Schedule of the Constitution while deciding whether a member has become disqualified to hold his position as a member of Parliament or of Assembly on the ground of defection.

In 2003, Mayawati's BSP cabinet decided to dissolve the 14th Assembly of Uttar Pradesh. Thirteen BSP MLAs then met the Governor to request him to invite rival SP leader Mulayam Singh to form the government. Knowing this, the

then BSP leader of legislature Swami Prasad Maurya moved an application under the Tenth Schedule with the Speaker to disqualify the 13 MLAs on the ground of defection.

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