SC urges rethink of Speaker's disqualification powers: Why plumping for 'impartial tribunal' to deal with political turncoats is no panacea

  • The SC last week pronounced a significant judgment in relation to the Speaker’s power to disqualify members of the legislative Assembly on account of defection

  • It nudged Parliament to amend the Constitution so as to disempower the Speaker with respect to adjudicating member disqualification matters

  • The court prodded Parliament to seriously consider amending the Constitution to substitute the Speaker as arbiter of disputes concerning disqualification

Last week, the Supreme Court, in Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly, pronounced a significant judgment in relation to the Speaker’s power to disqualify members of the legislative Assembly on account of defection.

 SC urges rethink of Speakers disqualification powers: Why plumping for impartial tribunal to deal with political turncoats is no panacea

File image of Supreme Court. PTI

The judgment did two things of utmost constitutional significance: (1) It determined that the courts have the power to fix a time-frame within which the Speaker must decide disqualification petitions; (2) It nudged Parliament to amend the Constitution so as to disempower the Speaker with respect to adjudicating member disqualification matters, and instead create an alternative mechanism for this purpose.

While the first finding is a welcome step, the second one is conceivably myopic, to say the least, and was an unnecessary edict.

Before addressing each of the above issues, the backdrop leading up to the Manipur MLA disqualification case becomes pertinent: In March 2017, the Manipur Legislative Assembly elections culminated in a hung Assembly as none of the parties were able to secure the requisite majority to form a government.

The Congress emerged as the single-largest party securing 28 seats in the 60-seat Assembly, followed by the BJP, which secured 21 seats. Soon after the declaration of the election results, MLA Thounaojam Shyamkumar, who was elected on a Congress ticket, switched parties and joined the BJP.

Subsequently, the BJP, with the alliance of Shyamkumar and other regional parties, formed a coalition government. Shyamkumar was inducted as a Minister of Forest and Environment in the newly formed BJP-led government.

On account of Shyamkumar’s defection, several petitions were filed before the Speaker of the Assembly seeking Shyamkumar’s disqualification under paragraph 2(1)(a) of the Tenth Schedule, which in relevant part provides that “a member of a House belonging to any political party shall be disqualified for being a member of the House – [ ] if he has voluntarily given up his membership of such political party.”

Since the Speaker did not take any action on any of these petitions, cases were filed in the Manipur High Court, requesting it to direct the Speaker to decide Shyamkumar’s disqualification petitions within a reasonable time. However, given that the issue of whether or not courts can direct the Speaker to decide disqualification petitions within a certain time was pending before the five-judge bench of the Supreme Court, the Manipur High Court declined to grant any relief, and consequently, the matter came before the Supreme Court.

Speaker must adjudicate member-disqualification petitions within a reasonable time:

The Supreme Court, by holding that the Speaker must dispose of the member-disqualification petitions within a reasonable time, effectively did away with the need for the five-judge bench to settle the issue.

Historically, on account of paragraph 6(1) of the Tenth Schedule, which imparts finality to the decision of the Speaker, the extent of judicial review with respect to the Speaker’s power under the Tenth Schedule has continually been a moot question.

Courts have consistently emphasised the limited power of judicial review vis-à-vis the Speaker’s powers under the Tenth Schedule. In the landmark case of Kihota Hollohon v. Zachilhu (1992), the court ruled that the scope of judicial review in respect of an order passed by the Speaker under Paragraph 6 “would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”

However, in Rajendra Singh Rana v. Swami Prasad Maurya (2007), when the Speaker of the Uttar Pradesh Legislative Assembly decided upon the claim of a split in the legislative party, but failed to decide on the disqualification of 13 MLAs, the Supreme Court ruled that the Speaker failed to exercise the jurisdiction conferred on him by Tenth Schedule, and such failure is not covered by the shield of Paragraph 6.

Interestingly, when the same question came up before the Supreme Court in S.A. Sampath Kumar v. Kale Yadaiah (2016), the decision in Rajendra Prasad was not brought to the notice of the Supreme Court at all, and the two-judge bench in Sampath Kumar referred the question to a five-judge bench, without engaging with Rajendra Prasad.

In essence, the law regarding the jurisdiction of the courts with respect to the Speaker’s member-disqualification powers was laid down as early as in 2007, albeit in a somewhat different factual scenario. However, Sampath Kumar’s reference of the issue to the five-judge bench had, in recent times, impelled the courts to refrain from passing orders to direct the Speaker to decide disqualification petitions within a certain time. This, in turn, enabled Speakers to sit on the petitions, ad infinitum.

However, in the Manipur case, the apex court, while interpreting the law laid down in Kihota Hollohon and Rajendra Prasad, clearly held that the Speaker “is bound to decide disqualification petitions within a reasonable period.”

Further, it expounded that “[w]hat is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to.”

This is perhaps good ammunition in the hands of the high courts that can now pull up the Speakers who do not expeditiously dispose of the disqualification petitions, and can direct them to do so within fixed time-frames.

An alternative mechanism to decide the disqualification petitions:

Additionally, in the Manipur case, the Supreme Court legitimately expressed concern that owing to a Speaker’s party affiliation, there may be a peril in entrusting disqualification petitions in the Speaker alone, as a final arbiter of such petitions.

Considering the possible bias on the part of the Speaker, the court prodded Parliament to “seriously consider” amending the Constitution to substitute the Speaker as arbiter of disputes concerning disqualification “with a permanent tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a high court, or some other outside independent mechanism.”

However, contrary to what is intended, the above suggested measures will more likely than not, leave us in a situation worse off than now. There is every chance that (a) The system of appointments to these potential independent adjudicating bodies will turn out to be opaque, just like how the current collegium system of appointments to the judiciary is; (b) Centre will have a strong say in these appointments, thereby impinging on the federal sovereignty that is now ensured to an extent because of the democratically and transparently chosen Speaker.

In light of the above, instead of putting an alternative mechanism in lieu of the Speaker to decide on the disqualification petitions, which will change nothing, attention may perhaps be accorded to giving more teeth to the Tenth Schedule, which has so far, singularly failed to prevent innumerable Machiavellian defections.

Find latest and upcoming tech gadgets online on Tech2 Gadgets. Get technology news, gadgets reviews & ratings. Popular gadgets including laptop, tablet and mobile specifications, features, prices, comparison.

Updated Date: Jan 26, 2020 15:23:54 IST