Author: Anuja Rajam Cherian, Advocate, Trivandrum Bar Association
ABSTRACT
The role of speaker/presiding officer is vital for a smooth functioning of government. The Speaker/Presiding Officer is the guardian of the rights and privileges of the House, its committees and members.The entire Parliamentary Estate is under the authority of the Speaker.[1]The Speaker has certain residuary powers under the Rules of Procedure. All matters which are not specifically provided under the rules and all questions relating to the working of the rules are regulated by him/her.In exercise of this power and under his/her inherent powers, the Speaker issues from time-to-time directions which are generally treated as sacrosanct as the Rules of Procedure.Under the Constitution, the Speaker/Presiding Officer enjoys a special position insofar as certain matters pertaining to the relations between the two Houses of Parliament and Legislative Assemblies are concerned. In the 52nd Constitution amendment, the Speaker/Presiding Officer is vested with the power relating to the disqualification of a member of the Lok Sabha/Raj Sabha on grounds of defection.Paragraph 6 of the Tenth Schedule empowers the Speaker/Presiding Officer to decide upon the questions of disqualification. The Anti-Defection Law is clear that the question of disqualification or otherwise under the Tenth Schedule is to be decided by the Speaker/Presiding Officer. The Courts have only the power of judicial review and any a priori intervention is ruled out.It is an established precedent that the Speaker as the Head of Legislature and being a constitutional authority is not amenable to the jurisdiction of the Courts.However, this applies in respect of the conduct of legislative business where the Speaker is supreme and final authority. Hence, the Speaker/Presiding Officer must be a person with expertise in constitutional laws.
The Tenth Schedule provides presiding officers/ speakers of Parliament/ legislatures with the power to decide cases of defection. Many a times the decisions of the Presiding Officers with regard to disqualifications have been challenged before courts for being biased and partial.TheSupreme Court has upheld the provision granting the Presiding officer the power to takethe decisions on the ground that the Presiding Officers hold a pivotal position in the scheme of parliamentarydemocracy and are guardians of the rights and privileges of the House.
POWERS OF SPEAKER/CHAIRMAN/PRESIDING OFFICER
Paragraph 6 of the tenth schedule of the Constitution provides that questions relating to disqualification of member of the house shall be referred to the Speaker whose decisionon the same will be final. Any question regarding disqualification arising out ofdefection is to be decided by the Presiding Officer of the House. According to paragraph2(1)(a) of the Tenth Schedule of the Constitution, an elected member of the houseshall be disqualified from being a member if they win the election as a candidate of oneparty and then join another.[1] The power for this disqualification is vested in the Speaker,who is usually a nominee of the ruling party.
Interestingly, a discussion is already underway among presiding officers of legislatureson how to secure the legislative Speaker’s “dignity” in the matters related to thedefection of lawmakers.[2]Former Lok Sabha secretary TK Vishwanathan said that the anti-defection law has putthe entire onus on the Speaker in the matters related to disqualification of members ofthe Legislative House. Even if the Speaker is impartial, he faces undue pressure andcriticism.There are instances such as these. In a state in India: the single-largest party with twenty-eight (28) seats, was three seats short of the majority markin the sixty (60)-seat assembly, could not able to form a government. The second positionsecured by another party, with twenty-one (21) seats, moved to stake claim along with the regionalparties. One of the members of the initially majority party extended supportto the next major party, helping to form a coalition government. The defector was madea minister of town planning, forest and environment in the new government.At leastthirteen (13) petitions were filed by the majority party who secured the maximum seatsin the Legislative Assembly before the Speaker. But the Speaker did not act on thecomplaints. Two Member of Legislative Assemblies, next approached the ManipurHigh Court. The High Court noted the seriousness of the issue but declined to grant anyrelief on the ground that the issue regarding powers of High Court to interfere with theSpeaker’s discretion is pending before Supreme Court.[3]The aggrieved party then moved the Supreme Court in appeal. The Speaker of theLegislative Assembly argued before the Supreme Court that the issue regarding whetherHigh Courts can direct Speakers to decide a disqualification petitions within a particulartime frame was referred to a constitution bench of the Supreme Court in 2015 in thecase of SA Sampath Kumar v. Kale Yadaiah[4]. Hence, he submitted, the decision in theManipur case should be deferred till the constitution bench decides the issue.However, the Supreme Court turned down this argument holding that the issue wasconclusively settled by the top court in a 2007 judgment of Rajendra Singh Rana v.Swami Prasad Maurya[5]in which the court ruled that the High Court can direct Speakersto rule on disqualification petitions if they do not do this within a reasonable time. Theapex court directed the Speaker of the Manipur assembly to rule on the disqualificationpleas pending before him within four weeks. The court also made it clear that if theSpeaker does not take a decision within four weeks, it will be open to any party to applyto the Supreme Court for further relief.
The Speaker of the House enjoys vast powers on disqualificationproceedings, with the Supreme Court consistently holding that it would not interfere insuch proceedings until the Speaker actually makes a decision. One of the first cases inthis regard was a 1992 judgment, when the court asserted that “having regard to theConstitutional Schedule in the Tenth Schedule, judicial review should not cover anystage prior to the making of a decision by the Speakers/Chairmen”. The majority heldthat the power to resolve disputes vested in the Speaker or Chairman by the TenthSchedule is a judicial power and Paragraph 6(1) is valid to the extent it seeks to impartfinality to their decision. The majority in Kihito Hollohan case also rejected thecontention that the vesting of adjudicatory functions in the Speakers/Chairmen wouldby itself vitiate the provision on the ground of likelihood of political bias. The dissentingminority, however, held that constitutional scheme contemplates adjudication onquestions of disqualification of elected members by independent authorities outside theHouse, i.e., President/Governor in accordance with the opinion of the ElectionCommission, all of whom are high constitutional functionaries with security of tenureindependent of the will of the House.
Once the factsgathered or placed show that a member of the House has done any such act which comeswithin the purview of para 2(1), (2) or (3) of the Schedule,[6] the disqualification willapply and the Chairman or the Speaker of the House will have to make a decision to thateffect.The law does not specify a time-period for the Presiding Officer to decide on adisqualification plea. There have been several cases where the Courts haveexpressed concern about the unnecessary delay in deciding such petitions. In 2012Speaker Haryana Vidhan Sabha Vs Kuldeep Bishnoi & Ors Court expressed concernsover the delays.[7] In some cases, this delay in decision making has resulted in members,who have defected from their parties, continuing to be members of the House. Therehave also been instances where opposition members have been appointed ministers inthe government while still retaining the membership of their original parties in thelegislature.
PRIVILEDGES OF THE PRESIDING OFFICER/SPEAKER
Speaker as the final arbiter in disqualification proceedings inside theHouse/Legislative Assembly
The speaker cannot initiate a suo-motu petition, it is the final arbiter only in case of apetition moved by a member. In several cases before the Supreme Court, questions areraised regarding the constitutional validity of Paragraph 6(1) which states that thespeaker shall have the final arbiter in proceedings regarding disqualification of amember. In furtherance to its constitutional validity, Supreme Court has asked toprovide clarity upon the nature of the Speaker’s power and whether the office of thespeaker will be termed as tribunal. The court in case of Kihoto Hollohan[8]held that since the disqualification proceedingshave two parties against and an authority decides the dispute by use of judicial power,such authority is a tribunal as it does not have all the trappings of a court.Remarking on the growing trend of Speakers acting contrary totheir constitutional duty of being neutral, the Supreme Court held that the Speakercannot either indicate the period for which a person is disqualified, nor bar him fromcontesting elections.In a 31-page judgment, a three-judge Bench led by Justice Rohinton F. Narimanquestioned why a speaker, who is a member of a particular political party and an insiderin the House, should be the “sole and final arbiter” in the disqualification of a politicaldefector. It is time Parliament had a rethink on whether disqualification petitions oughtto be entrusted to a speaker as a quasi-judicial authority when such Speaker continuesto belong to a particular political party either de jure or de facto.
Is there any time limit for decision taken by the Speaker?
The anti-defection law does not specify a timeframe for Speakers to decide on defectionproceedings. When the politics demands, Speakers are either quick to pass judgment ondefection proceedings or delayed acting on them for years on end. However, for the present, the court said the Speakers should decideTenth Schedule disqualifications within a “reasonable period”. What is ‘reasonable’would depend on the facts of each case.Theconcern party asked the Speaker to disqualify, but the petitions are kept pending.In one of the Southern States, legislators of the main opposition party boycottedthe entire 12-day assembly session. This boycott was in protest against the delay ofover eighteen (18) months in action being taken against legislators of their party who haveallegedly defected to the ruling party. However, in areas wherein the Speaker is expected tofunction as a quasi-judicial authority under the Tenth Schedule, it would definitelyinvite judicial review and the Office of the Speaker cannot claim any special privilege.The Court in Keisham Meghachandra Singh also observed:“In the years that have followed the enactment of the Tenth Schedule in 1985, thisCourt’s experience of decisions made by Speakers generally leads us to believe that thefears of the minority judgment in Kihoto Hollohan have actually come home to roost.”
Speaker’s decisions and Judicial review
The law initially stated that the decision of the Presiding Officer is not subject to judicialreview. This condition was struck down by the Supreme Court in 1992, thereby allowingappeals against the Presiding Officer’s decision in the High Court and Supreme Court.Kihoto Hollohan Vs Zachillhu and Others (1992). However, it held that there may notbe any judicial intervention until the Presiding Officer gives his order.Paragraph 7 was the most controversial provision which blatantly attacked as it barredthe jurisdiction of High Courts and Supreme Courts in respect of any matter connectedwith the disqualification of a member of a House under this Schedule. The court in thecase of Kihoto Hollohan held the provision to be unconstitutional as it denies the rightto approach the judiciary as well as of judicial review. Further, under Article 368(2)there requires half of the state legislatures to ratify this provision however no suchratification was received and therefore, the court while applying the doctrine ofseverability, declared Paragraph 7 to be unconstitutional.Two issues were raised that whether the Speaker of a legislature is bound by thedirections of a Court and whether judicial review by courts extends to rules framedunder the Tenth Schedule.It is held by the Hon’ble Apex Court that “the orders passedby a speaker are subject to judicial review and rules under the Tenth Schedule areprocedural in nature. Any violation of those would be a procedural irregularity.Procedural irregularity is immune from judicial scrutiny.”A very important issue regarding that when can a court review the Speaker’s decision-making process under the Tenth Schedule was answered by the Supreme Court inRajendra Singh Rana and Ors. vs. Swami Prasad Maurya and Ors[9], it was held that ifthe Speaker fails to act on a complaint, or accepts claims of splits or mergers withoutmaking a finding, he fails to act as per the Tenth Schedule. The Court said that ignoringa petition for disqualification is not merely an irregularity but a violation ofconstitutional duties.
The Speaker, in acting as aTribunal under the Tenth Schedule, is bound to decide disqualification petitions withina reasonable period. The Speaker should not stall this matter. Constitutional courtscannot judicially review disqualification proceedings under the Tenth Schedule (anti-defection law) of the Constitution until the Speaker or Chairman makes a final decisionon merits.The Kihoto Hollohan judgment is significant in the case of ousted Rajasthan DeputyChief Minister and other eighteen (18) Member of Legislative Assembly, who were issued noticeunder the anti-defection law after the ruling party sought their disqualification.The Bench explained that the reason for limiting the role of courts in ongoing defectionproceedings is that the office of the Speaker is held in the highest respect and esteemin parliamentary traditions. The evolution of the institution of parliamentary democracyhas as its pivot the institution of the Speaker. He is said to be the very embodiment ofpropriety and impartiality.[10]
Speaker and Issue of Impartiality
The Parliament now has to decide whether the Speaker who himself is a member of aparty should be allowed to decide on membership or not. The office of Speaker has beencriticized time and again for being an agent of partisan politics especially in context ofpower for the disqualification. The Supreme Court in Jagjit Singh versus State ofHaryana[11] highlighted the similar allegations about the confidence on the role ofSpeaker in the matters of impartiality. In the Kihoto Hollohan versus Zachillhu case(1992), one of the judges observed that the suspicion of bias on the Speaker’s role couldnot be ruled out as his/her election and tenure depends on the majority will of the House(or specifically of the ruling party).Impartiality, fairness and autonomy in decision-making are the hallmarks of a robustinstitution. It is the freedom from interference and pressures which provide thenecessary atmosphere where one can work with an absolute commitment to the causeof neutrality (as a Constitutional value). At a time when India’s rank has fallen in thelatest Democracy Index (2019), it is expected from Parliament to take steps to revampand strengthen the institution of the Speaker. Further, the structural issues regarding themanner of appointment of the Speaker and his tenure in office needs an urgent redressal.On Dec4, 2017 Chairman had disqualified the two rebels from the Rajya Sabha, on aplea filed by the party on Sep 2,2017. The decision was one of the swiftest in the history ofthe Rajya Sabha. The Chairman claimed that disqualification of a member of thelegislature should be decided by the Presiding Officer in about three months to thwartpolitical defections. In the case of the two Member of Parliaments who were disqualifiedfrom Rajya Sabha they were deemed to have ‘voluntarily given up their membership’by engaging in anti-party activities which included criticizing the party on public forumson multiple occasions, and attending rallies organized by opposition parties.[12]
Review of Speaker’s own decision
In a case, whether a speaker can review his own decision to disqualify amember under the Tenth Schedule, it is held that the Speaker of a House does nothave the power to review his own decisions to disqualify a candidate. Such power is notprovided for under the Schedule, and is not implicit in the provisions either.
Quick Action of Speaker and the ‘Destructive of democratic process’
Even as the twin issues of the speaker’s inertia and legislators’ resignation intertwine,the focus is well and truly on the anti-defection law with most constitutional experts inagreement that the Act needs to be looked at afresh. Says noted constitutional law expertand author Gautam Bhatia: Legislatorsresign and get around the provisions of the Act. This is destructive of democraticprocess. He pointed to the possibility of members switching sides not because ofideological compulsions but because of political blackmail.[13]Advocate Rajneesh Chuni remarked Legislators have become smarter. They do not mergewith another party. They merely resign from their party and circumvent the law.However, the whole burden falls on the common man, the voters who might have votedfor a particular political party, then are dismayed to see their representative resignmidway. They feel cheated. After resignation, the Speaker has to be proactive. Hecannot sit on resignations endlessly. But if the resignations are accepted, elections arethe only way out. There is no Assembly that has not been betrayed in recent years.Under the provisions of the Tenth Schedule to the Constitution, the Presiding Officersof the Houses/Legislative Assemblies have been given the authority to decide questionsof violation of the provisions of the Anti-Defection Law. [14]
While discharging their functions under the Tenth Schedule of the Constitution, thePresiding Officers of the House or Legislative Assembly are treated as Tribunalsexercising specific jurisdiction as conferred by the Schedule. Such exercise of power isdehors the constitutional authority of the Presiding Officers to have exclusivejurisdiction to regulate the proceedings of the House and as such, the Presiding Officersare not immune from their orders being challenged in Courts of Law and in many casesnot only such orders have been set-aside by the judicial authorities but adversecomments have also been made. It has recently appeared in the media that a PresidingOfficer of one of the Legislative Assemblies in our country has been directed by the court to indicate the time within which a pending matter relating to defection will bedisposed of. The petition as a grievance has been made before the Court, it appears fromthe Media, that the concerned Presiding Officer was deliberately delaying the disposalof the matter before him.This category of laws is applicable to both, state assemblies as well as both houses ofthe parliament for the disqualification of the members so as to strengthen the democracy.
The absolute power of the chairman or the speaker has been a bone ofcontentions since its inception of the provision in 1985. This provision has beeninappropriately misused by the power icons to promote corruption and furthermiscarriage of justice by upholding the agenda of the political party they belong to.In most of the cases, the delay in decision of the Presiding Officer paves way fordefection to be controlled.
Inadequacies of the Law
A human mind is bound to havebiases. The freshly elected legislators elect the speaker of the assembly and hence inalmost all the cases, the speaker is a member of the ruling party. It is the fact that the “tenure of thespeaker depends on the continuous support of the majority present in the house”.Though the speaker of the assembly is expected to be free from biases of any sort, justand fair, it cannot be denied that an inherent bias can creep in because of the previouspolitical affiliations. This bias turns into gross injustice when the speaker misuses thispower. This power stems from Paragraph 6 of the schedule that “empowers the speakerto be the decisive arbiter regarding any question pertaining to the disqualification of anymember of the house” under Paragraph 2 of the schedule. Thus, in the garb of being justand fair, the speaker might espouse their political affiliations backhandedly. Andultimately, the decision of the ruling party hidden under the veil of the speaker becomesthe rule. Though the apex court in Jagjit Singh v. State of Haryana[15] stated that thedecision of the speaker is subject to judicial review, it expressly stated that it can bereviewed only one the basis of any procedural lapses in question but not on merits.
Reasonable Time for Final Decision by the Speaker
The Tenth Schedule has not defined about the definite time limits for competition ofdisqualification process of the defecting members. It is found that judiciary is by andlarge helpless at the Pre decisional Stage. There is no time limit. A reasonable timelimit is still a question.Oneof the major causes of delay to take action against the legislators who left the party. Inorder to clarify his role, the Speaker suggests to approach the court, adding that he willact as per the law. The net effect is “The legislature in its wisdom has put no time limiton the Speaker to decide (the matter)”.The Supreme court opined that such loopholes and discrepancies that exist in theschedule should be removed. It asked the parliament to reanalyze the ‘quasi-judicialauthority’ that exists with the speaker of the assembly enshrined in Paragraph 6 of theschedule, considering the fact that he belongs to a particular political party and mayhave his own biases owing to the affiliations.
Speaker does not have the power of disqualifying any member fromContesting election
This event brings upon yet another question relating to the schedule. Neither theprovision of the constitution itself nor any other statues in power bar the disqualifiedmembers from contesting elections. This loophole empowers them to win the seat backvia re-elections crushing the goal of the fair and ideal process. The Speaker in order torefrain the defected members from using this defect for their benefit (in current case- tostand for re-elections), barred them from contesting elections which is not within hispower to decide and is correctly stated ultra vires by the court.[16]
RECOMMENDATIONS
The Speaker of the House to check defections (anti-defection law), specifying a time frame to handle a case, and to take into account the conduct of a member before taking a decision. It is high time that Parliament amends the Constitution by ensuring that a constitutional court preside and hears the disqualification petition against the members of the House. Any member who is disqualified under the Tenth schedule should be barred from contesting elections for at least 10 years from the date of order. Also, then his family members (namely father, mother, son, daughter) should be barred from contesting elections for the vacated seat.[17]
REFERENCES
1. Murali Krishnan and Saubhadra Chatterjee “Examine powers of Speakers, SC asks Parliament” Hindustan Times, New Delhihttps://www.hindustantimes.com/india-news/examine-powers-of-speakers-sc-asks-parliament/story-n0WBUVZBWsvdBlky7IJMEL.html Updated on Jan 22, 2020 01:30 a.m. IST
2. Civil Appeal No.547 of 2020 (Arising out of SLP (CIVIL) No.18659 of 2019
3. Special Leave to Appeal (Civil) No. 33677 of 2015 In Wp No. 7217 Of 2015 | 08-11-2016
4. Appeal (civil) 765 of 2007
5. Disqualification on ground of defection
6. Civil Appeal No.7125 of 2012 (Arising out of SLP(C)No.54 of 2012)
7. 1992 SCR (1) 686, 1992 SCC Supl. (2) 651
8. Writ Petition (civil) 287 of 2004
9. Krishnadas Rajagopal; “Judicial review can’t be available prior to Speaker’s decision “New Delhi,https://www.thehindu.com/news/national/judicial-review-cant-be-available-prior-to-speakers-decision/article32106036.eceJuly 16, 2020 22:55 IST; Updated: July 16, 2020 22:15 IST
10. Naidu on disqualification of MPs: Dispose pleas to debar MPs in 3 months, says Venkaiah Naidu https://www.thehindu.com/news/national/dispose-pleas-to-debar-mps-in-3-months-says-venkaiah-naidu/article21268354.ece New Delhi, December 05, 2017 21:57 IST Updated: December 06, 2017 00:49 IST
11. Address at the Symposium on ‘Anti-Defection Law – Need for Review’, during the Conference of Presiding Officers of Legislative Bodies in India, Chandigarh, 23 September 2008.
12. Anti-defection law: Power to disqualify member should solely wrest with Speaker Our BureauBengaluru | Updated on May 28, 2020https://www.thehindubusinessline.com/news/antidefection-law-power-to-disqualify-member-should-solely-wrest-with-speaker/article31696966.ece
[1]If he has voluntarily given up his membership of such political party [2] Murali Krishnan and Saubhadra Chatterjee “Examine powers of Speakers, SC asks Parliament” Hindustan Times, New Delhi Updated on Jan 22, 2020 01:30 a.m. IST [3] Civil Appeal No.547 of 2020 (Arising out of SLP (CIVIL) No.18659 of 2019 [4] Special Leave to Appeal (Civil) No. 33677 Of 2015 In Wp No. 7217 Of 2015 | 08-11-2016 [5] Appeal (civil) 765 of 2007 [6] Disqualification on ground of defection [7] Civil Appeal No.7125 OF 2012 (Arising out of SLP(C)No.54 of 2012) [8] 1992 SCR (1) 686, 1992 SCC Supl. (2) 651 [9] Appeal (civil) 765 of 2007 [10] Krishnadas Rajagopal; “Judicial review can’t be available prior to Speaker’s decision “New Delhi, July 16, 2020 22:55 IST; Updated: July 16, 2020 22:15 IST [11]Writ Petition (civil) 287 of 2004 [12]Naidu on disqualification of MPs: Dispose pleas to debar MPs in 3 months, says Venkaiah Naiduhttps://www.thehindu.com/news/national/dispose-pleas-to-debar-mps-in-3-months-says-venkaiah-naidu/article21268354.eceNew Delhi, December 05, 2017 21:57 IST Updated: December 06, 2017 00:49 IST [13]Ziya Us Salam:Anti-defection law ridden with loopholes, prone to misusePrint edition: March 26,2021https://frontline.thehindu.com/cover-story/anti-defection-law-ridden-with-loopholes-india-poachingmps-mlas/article34037127 [14] Address at the Symposium on ‘Anti-Defection Law – Need for Review’, during the Conference of Presiding Officers of Legislative Bodies in India, Chandigarh, 23 September 2008. [15]Writ Petition (civil) 287 of 2004 [16]Anti-defection law: Power to disqualify member should solely wrest with Speaker Our Bureau Bengaluru | Updated on May 28, 2020https://www.thehindubusinessline.com/news/antidefection-law-power-to-disqualify-member-should-solely-wrest-with-speaker/article31696966.ece [17] Anti-defection law: Power to disqualify member should solely wrest with Speaker Our Bureau Bengaluru | Updated on May 28, 2020https://www.thehindubusinessline.com/news/antidefection-law-power-to-disqualify-member-should-solely-wrest-with-speaker/article31696966.ece [1] In this article Speaker/Presiding Officer is the same