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SPEAKER’S DISCRETIONARY JUSTICE IN THE DEFECTION DISQUALIFICATION (By-Ankita Singh)
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SPEAKER’S DISCRETIONARY
JUSTICE IN THE DEFECTION DISQUALIFICATION
Authored by-Ankita Singh
Abstract
The speaker of the house is
responsible for the conduct of the assembly's proceedings as a guardian. The
Anti-Defection Act under the Tenth Schedule states unequivocally that the
Speaker must prevail on the issue of disqualification or otherwise. It is a
well-established procedure that the Speaker, as the Head of the Legislature and
constitutional authority, is not subject to the Courts' jurisdiction.
Recently, the Supreme Court has been
hearing defection-based disqualification petitions from various state
legislative assemblies. The court is currently reviewing the limits of the
speaker's discretion. This paper tries to visualize judicial intervention in
the Speaker's discretion in anti-defection proceedings and analyze the
constitutional position and proprietary of the Speaker's position as an
impartial adjudicator. The paper aims to solve the question that the speaker
being a member of a particular party and an insider in the house should be the
sole and final arbiter in the cases of disqualification of a political defector
or not.
The paper mainly focuses on the role
of the speaker in parliamentary democracy as well as the judicial hand-hold of
the speaker’s discretion. It also sheds some light on the assumptions about the
speaker’s constitutional role.
Keywords: Speaker, Anti-Defection Act,
Disqualification, Discretion, Defector
Introduction
The Constitution (Fifty-Second
Amendment) Act of 1985, which took effect in March 1985, amended various
articles of the Constitution regarding the vacancy of seats and disqualification
from membership in the Parliament and State Legislature. The amendment also
added a new 10th schedule to the Constitution, detailing disqualification on
the grounds of defection. A member of Parliament/State Legislature is
considered "defected" if he either resigns from his party or refuses
to obey the party leadership in any situation involving voting. Defection is
defined in the Indian Constitution as "to abandon a position or
association, often to join an opposing group," which essentially describes
a situation in which a member of a party abandons his loyalty to that party to
support another.
The constitutional concept of
resignation represents irreconcilable silent dissent, whereas
'disqualification' inflicted as a result of 'defection' represents vociferous
or loud dissent that may or may not be genuine, such as based on extraneous
considerations. To prevent genuine dissent from drowning out non-genuine
dissent, our Constitution limits the Speaker's power to disqualify the
political defector only until the date on which his term of office would expire
or he is re-elected to the legislature, whichever is earlier. Understanding
this defined distinction thus unequivocally defends the democratic
political-party-based governance system.
The Speaker of a legislative assembly
holds a position of constitutional trust and is given broad powers. One of the
defining characteristics of democracy is an adequate system of checks and
balances on such powers. However, there have been numerous instances of failure
that highlight the need for a system of checks and balances on a speaker’s
powers. The Speaker is chosen by the majority party and is expected to cut all
ties with his political party to act as a non-partisan figure. However, in
India, the Speaker's office has always been fraught with controversy due to the
Speaker's biased and partisan behaviour. Earlier this year, the Speakers of
Madhya Pradesh and Manipur were implicated in controversy for displaying biased
behaviour toward their party. The situation deteriorated to the point where the
Supreme Court recommended that Parliament create a Tribunal in place of the
Speaker to hear anti-defection cases.
Several
conventions and procedural rules ensure the Speaker's independence. The
majority of these have also been adopted in India, either in the Constitution
or in the House of People's rules of procedure. As a result, the Speaker's
salary and allowance are charged from the consolidated fund. Except on a
substantive motion or a resolution for removal, his conduct cannot be
criticized. He does not vote unless there is a tie. Only by special resolution
can he be removed. However, the exercise of power by the Speakers' Office tells
a different story.
Partiality
has been practiced since the first Lok Sabha when the first Speaker of the
House denied an adjournment motion brought in to discuss the lathi-charge by
policemen in Manipur. He also refused to resign from the political party to
which he belonged after being elected Speaker. Somnath Chatterjee refused to
include the name of Railway Minister in a resolution passed by the opposition
following a train accident in 2004. Instances of deliberate delay in deciding
disqualification cases in Tamil Nadu and Karnataka also called into question
the constitutional design of making the Speaker the sole arbiter in the matter
of disqualification.[1]
The
Speaker's continued affiliation with the political party is at the root of the
problem. Partisanship issues arise as a result of structural issues regarding
the Speaker's appointment and tenure. Though the Speaker represents the House,
he also represents his constituents. Again, he hopes to run for election from
the same constituency, subject to permission from the leader of the political
party. In India, the convention of Speakers resigning from their party
membership has not developed. This is because the Speaker's re-election to the
House is not guaranteed. All political parties campaign in the Speaker's
constituency. Even after being re-elected to the House, Speakership remains
open for election in India. As a result of the lack of an electoral system and
conventions that allow the Speaker to renounce his membership, he is obligated
to remain a member of the party. After becoming Speaker of the Fourth Lok
Sabha, Neelam Sanjiva Reddy was the only parliamentarian to resign from the
political party.
During
general elections in the United Kingdom, political parties generally do not
field candidates against the Speaker. During the election, the Speaker
campaigns as a Speaker seeking re-election rather than on a political issue. If
re-elected to the House, there is a presumption that he will continue as
Speaker, unless he expresses an unwillingness to do so. In addition, in the
United Kingdom, the Speaker does not accept the position of Minister after
resigning from the position.
The
Speaker's broad power and function anticipate fair and reasonable decisions to
strengthen parliamentary democracy. The Speaker is the custodian of the
practices that give democracy life. With or without the explicit text in the
Constitution, the Speaker is bound by all such values that strengthen the
people's trust in the functioning of democracy. [2]
At
first glance, the Supreme Court's writ jurisdiction under Article 32 appears to
be limited to the protection of fundamental rights enunciated in Part III of
the Constitution. Nonetheless, because of its unique position and placement,
which makes the remedial right a fundamental right in and of itself, the
Supreme Court has examined the various contours of writ jurisdiction as
reflected in longstanding judicial precedents. Paragraph 7 of the Tenth
Schedule which restricted the jurisdiction of the courts with regards to the
disqualification of a member of a House was declared invalid for want of
ratification under the proviso to clause (2) of Article
368
as per majority opinion.[3] The
five-judge constitutional bench of the Supreme Court ruled that proceedings
before the speaker under the Tenth Schedule are akin to tribunals and thus
subject to judicial review. The crystallized position on this count is as
follows:
- The
proposition that, in light of the hierarchy of appeals, the parties must
exhaust all available remedies before resorting to writ jurisdiction of
the Supreme Court has been contested, with the observation that it does
not represent a Rule of law, but merely a policy of "convenience and
discretion," and not of compulsion, and thus, where there is the
failure of principles of natural justice or where the orders or
proceedings are whole without jurisdiction warrants, this Court may
exercise jurisdiction.
- The scope
of writ jurisdiction, which appears to extend beyond fundamental rights,
should, however, be limited to jurisdictional errors, namely, infirmities
based on violation of constitutional mandate, mala fide, non-compliance
with natural justice rules, and perversity.
- Furthermore,
while exercising the power to disqualify, the Speaker acts as a Tribunal,
and thus the validity of the orders is subject to judicial review.
- Even based
on fundamental rights, the Supreme Court's writ jurisdiction could be
invoked in the instant case, because the allegations of violations of the
principles of natural justice and the right to a fair hearing can be
traced back to the right to equality and the rule of law enshrined in
Article 14 of the Constitution, read in conjunction with other fundamental
rights.
- In a fact
matrix similar to the present case, a three-judge bench of the Supreme
Court has explicitly held that a challenge to a disqualification order
under the Tenth Schedule is available under this Court's writ
jurisdiction.
- According
to the Constituent Assembly Debates, Dr. B.R. Ambedkar described Article
32 as the very soul of the Constitution - the very heart of it, and thus
the jurisdiction conferred on this Court by Article 32 is an important and
integral part of the basic structure of the Constitution of India, and no
act of Parliament can abrogate or take it away except by way of
impermissible erosion of fundamental principles of the constitutional
scheme are settled propitiously.
The
Speaker is empowered to combat political corruption, such as horse-trading and
other corrupt practices associated with defection and change of loyalty for the
lure of office, under the Tenth Schedule of the Constitution read with relevant
provisions.
When
it comes to the workings of a legislature, the courts have made certain
exceptions. When the speaker has made a decision, the courts can review it on
four grounds. The first is if the order is issued without adhering to natural
justice principles such as not allowing the opposing party to present their
case and the judge acting as the judge in their case. The second is if the
decision is unconstitutional. The third is whether the order was made in bad
faith. And the fourth is if the order is perverse, which means it was made
based on no evidence or evidence that was thoroughly untrustworthy, and no
reasonable person would act on it.[4]
The Speaker’s Role In Adjudicating
Disqualifications And Resignation
Frequent defections by members of political
parties harmed national political stability, prompting the Rajiv Gandhi
government to enact an anti-defection law in 1985. It was enacted under
Schedule 10 of the Constitution to prevent defections and restore political
stability in the country. It established two conditions for a member's
disqualification: first, when a member voluntarily gives up his political party
membership, and second when he violates the party's directives. The law vests
the Speaker with broad discretion and precludes any judicial intervention under
Articles 122 and 212 of the Constitution by making their decisions final.
Following the 33rd constitutional amendment,
the Speaker was given additional responsibility. The Speaker would have to
'accept' the resignations of the members for them to take effect. Article 190
requires the Speaker to consider two factors when deciding on a resignation:
"voluntariness" and "genuineness." The Supreme Court
considered the meaning of these two terms in its decision on the Karnataka
legislative assembly controversy in 2020. According to the Court, the term
"genuine" means that the resignation application must always come
from the concerned person and not from any forged third party, and
"voluntariness" means that the resignation must not be based on any
coercion, or threat, or force. However, in this case, the Court did not set a deadline
for deciding on resignation or disqualification, and the Constitution does not
either. This has allowed the Speaker to abuse their discretion, as evidenced by
the most recent controversies involving the Speaker's office - in the states of
Manipur and M.P.[5]
The office of the Speaker has a high
constitutional status under the scheme of the Constitution because the
Constitution places a lot of confidence in this office. There is a presumption,
albeit
rebuttable, in favor of the Speaker's Office
having a sense of elevated independence, impeccable objectivity, and, most
importantly, absolute impartiality. Because he is the presiding officer of the
House, the Speaker is an Officer under Articles 93 and 178 of the Constitution
for Articles 122 and 212. As a result, powers exercised by him/her in matters
relating to regulating procedure or the conduct of business, or for maintaining
order, in a State's Parliament or Legislature are beyond the scope of judicial
review. Therefore, the term proceedings in parliament or the legislature of a
State refers to all actions taken by the Speaker on matters relating to
regulating the procedure, conducting business, or maintaining order.
In the landmark Constitution Bench decision
of Kihoto Hollohan vs. Zachillhu And Ors[6],
the Supreme Court distinguished between proceedings on the floor of the House
and proceedings before the Speaker under the Constitution's Tenth Schedule. It
was determined that under the Tenth Schedule, the Speaker's Office is analogous
to a "Tribunal" and thus operates independently of the House, making
his actions under the anti-defection law subject to judicial review. J. Nariman
emphasized this distinction in his seminal decision in Keisham Meghachadra
Singh. The court identified three instances that merited judicial intervention:
mala fide in the exercise of power, violations of natural justice principles,
or committing an error of law in the exercise of power. Since the speaker's
decision cannot be equivocated with that of the house, he acts in the capacity
of a tribunal. His decision is not subject to House approval. The Division
Bench of the Calcutta High Court appears to have glossed over this conceptual
distinction in its decision.
In Godavaris Misra vs Nandakisore
Das, Speaker, Orissa[7], the
question before an Orissa High Court Division Bench was whether the giving of
notice of questions by members before the start of the actual session and the
allowance or disallowance of the same by the Speaker, could be considered part
of the "proceedings in Parliament." The High Court, relying on
"May's Parliamentary Practice," held that this expression includes
not only the proceedings during the actual session of Parliament, but also some
preliminary steps such as giving notice of questions or notice of resolutions,
and so on.
The court has not heretofore specified the
parameters of the permissible level of judicial scrutiny. In Mayawati
v. Markandeya Chand[8],
twelve BSP MLAs voted in favor of Sh. Kalyan Singh in a motion of confidence
against the government, which was directed by Mayawati, the chief whip. She
petitioned the speaker of the house for the disqualification of the twelve MLAs
under the tenth schedule, filled with rage.
The speaker ruled against her, but the MLAs were not disqualified. As a result,
she petitioned the Supreme Court under Article 136, questioning the speaker's
decision on the grounds of perversity. By applying the Wednesbury principle of
reasonableness, the court determined that the level of judicial scrutiny would
be minimal. To qualify for judicial intervention, the finding must be so
unreasonable or unconscionable that no tribunal should have reached it based on
the given materials. In this case, the court determined that there was
sufficient evidence to support the speaker's decision, and the special leave
was denied.
In Rajendra Singh Rana v. Swami
Prasad Maurya[9], in
the row before the speaker, there were two batches of petitions pending. The
first set of petitions seeks to disqualify 13 BSP MLAs under the tenth schedule
and is followed by another batch of 37 MLAs (claiming to represent 40 MLAs)
elected on BSP tickers seeking recognition as a split from the BSP. The latter
claim, however, was later accepted by the speaker by recognizing a split. The
Supreme Court overturned the speaker's decision, reasoning that the speaker can
only exercise his discretion when disqualification proceedings are initiated
under the tenth schedule. It does not apply to the recognition of splits in
general. Before the speaker can speak, there must be a cause of action in the
form of defection.
The Court has been allowed to examine the
prudence of the speaker's discretion under the tenth schedule on an irregular
and unfortunate basis. In the absence of express limitations on the speaker's
power under the tenth schedule, the case law body shows that speakers across
the states have tried to test the outer limits of the powers that the Court has
contained on a case-by-case basis. The speaker's discretionary limits in
practice can be studied in various domains. It is difficult to be exhaustive
here, but illustrative is sufficient. If the speaker fails to comply with the
court's order, he may face contempt charges. A new speaker who takes over the
office cannot review the previous speaker's disqualification orders or his own.
The Constitutional Courts have the power to overturn disqualification orders
based on the defection.
The Supreme Court answered the question of the
speaker's discretion to disqualify members under the whip of the tenth schedule
while a resolution of his removal is under consideration.
In Nabam Rebia, and Bamang Felix vs.
Deputy Speaker Arunachal Pradesh Legislative Assembly[10],
Justice Dipak Misra observed the constitutional position of the speaker. The
resolution to remove the speaker was in jeopardy. The speaker has fourteen days
under the
Constitution to respond to the resolution.
There were also defection-disqualification proceedings pending before the
speaker in the case. The question remained, can the speaker, in his discretion,
disqualify members under the tenth schedule during the fourteen days? After
reviewing the Constitutional Scheme, the Court determined that Article 173 (c)
required "all the then members" to be present and vote; thus, the
continuation of the person in his capacity as speaker takes precedence, and the
disqualification petitions can be dismissed accordingly. The fulcrum for our
purposes is that the speaker cannot exercise his enormous power under the tenth
schedule if the legislative assembly is considering his position as speaker.
Acting against would be a violation of the "Constitutional Trust."
With these constitutional boundaries drawn
around the tenth schedule, the power of the speaker is significantly limited,
though some grey areas remain. The speaker's unruly and constitutionally
immoral paths have been dwindled by the Court's rulings, which have effectively
fixed the silent leakages in the anti-defection law. Nonetheless, the political
ploy remains anathema to the goals of the tenth schedule.[11]
Conclusion
India inherited the Speakership from
Britain, where the Speaker is required to resign from his political party after
being elected. In India, however, the Speaker retains his party membership even
after being elected as Speaker. In Manipur's case, the Court recommended that
the Speaker be replaced by a separate tribunal for adjudicating disputes under
the Tenth Schedule. To ensure impartiality, this tribunal will be presided over
by a Supreme Court or High Court judge.
In the S.R. Bommai case[12],
the Supreme Court ruled that when a government loses the confidence of the
House, the only way to resolve the issue is to hold a floor test. In the case of
Madhya Pradesh, however, the Speaker defied the Governor's order to conduct the
floor test and attempted to circumvent this mandate to benefit his political
party. Thus, while the establishment of a separate tribunal to adjudicate
disputes under the Tenth Schedule may ensure impartiality in assessing
disqualifications, the possibility of bias will continue to loom over the
Speaker's other actions.
The guidelines may include, inter
alia, conducting floor tests immediately after the government loses confidence
in the House, not deferring floor tests even if the decision on accepting
resignation is still pending before the Speaker, and so on. However, the State
should exercise caution in defining the parameters of such restrictions. As
previously stated, the Supreme Court has set a three-month deadline for
adjudicating disqualification petitions but giving such a long period for
adjudication may allow the minority government to rule the state in the
meantime. Such a rule would be irrational and violate constitutional ethics.
As a result, we believe that the gap
can be bridged by limiting the Speaker's discretionary powers at all levels,
rather than simply creating a separate tribunal. Such limitations may include
imposing shorter deadlines for dealing with cases of resignation,
disqualification, or floor tests, as well as establishing a set of guidelines
for exercising the Speaker's other powers.
We believe it is past time for the
State to overhaul the Speaker's office by limiting its discretionary power. It
is time to ensure impartiality and transparency in the Speaker's office by
imposing a deadline and a set of guidelines for exercising all entrusted
powers. Only after such changes are implemented can the revered office of the
Speaker be viewed with the highest regard and referred to as the symbol of
India's freedom and liberty, as envisaged by Pt. Jawaharlal Nehru.
Article Information
SPEAKER’S DISCRETIONARY JUSTICE IN THE DEFECTION DISQUALIFICATION (By-Ankita Singh)
Author Name: Ankita Singh
Title: SPEAKER’S DISCRETIONARY JUSTICE IN THE DEFECTION DISQUALIFICATION
Email Id: as4451739@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/06/27
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International Journal for Legal Research and Analysis
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