SC asks Parliament to ponder over Speaker's mandate to disqualify MPs, MLAs; solution may lie in transferring power to bodies outside Legislature
The Supreme Court on Tuesday asked the Parliament to ponder over the power of the Speaker under the Tenth Schedule of the Constitution in deciding petitions seeking disqualification of lawmakers
The Supreme Court asked the Parliament to ponder over the power of the Speaker in deciding petitions seeking disqualification of lawmakers
The passing of the anti-defection law in 1985 gave Speakers the power to expel MLAs and MPs for anti-party activities, however, Speakers have often failed to show impartiality in their decisions
On Tuesday, the Supreme Court asked the Parliament to ponder over the power of the Speaker under the Tenth Schedule of the Constitution in deciding petitions seeking disqualification of lawmakers. Observing that the Speaker also belongs to a political party, the apex court said that an independent tribunal ought to be appointed instead to determine the fate of an MP or an MLA who has switched sides for money and power. The court also suggested that a permanent tribunal headed by a retired Supreme Court judge or a former High Court Chief Justice.
The court made the remarks while giving its judgment on a plea moved by Congress leaders, seeking the court's direction to the Manipur Assembly Speaker to take a decision on the disqualification of BJP lawmaker and Manipur forest minister Th Shyamkumar.
While passing its judgment, a bench headed by Justice RF Nariman, also granted liberty to Congress MLA Fajur Rahim and K Meghachandra to approach it again if the Assembly Speaker fails to take a decision within four weeks on their plea seeking disqualification of the BJP minister. The BJP minister had won the Assembly election on a Congress ticket and later joined the BJP. This led to the filing of the plea seeking his disqualification.
Karnataka an example of Speaker’s role-taking political colour
The Manipur MLA's case comes just months after the Karnataka political turmoil, which saw the fall of the HD Kumaraswamy-led Congress-JD(S) alliance govt after 13 Congress and 3 JD(S) MLAs resigned from the legislative Assembly, and their subsequent disqualification by then speaker KR Ramesh Kumar.
The Tenth Schedule of the Constitution gives the Speaker the power to conduct the House and amend records regarding its proceedings and thus has to maintain a position of neutrality. He holds a quasi-judicial, Constitutional post and is expected to act in a non-partisan manner, even though he or she contests the election for the post on a party ticket and may have ambitions to contest elections in the upcoming term.
Amidst the political turmoil, Kumar’s power to disqualify the MLAs was questioned. The then-Speaker, also a nine-time Congress MLA from Srinivaspur, was also blamed for delaying the floor test in the Assembly in the face of the imminent collapse of the JD(S)-Congress state government. On being asked by the Supreme Court about the fate of the rebel MLAs, Kumar had reportedly said that he could not act at “lightning speed".
Though the Supreme Court, in a November 2019 verdict upheld the Speaker’s decision regarding the disqualification of the rebel MLAs, the apex court said that the Speaker acts as a "quasi-judicial authority" and that the scope of the Assembly Speaker's inquiry is limited to examine whether the resignation of MLAs was voluntary or not.
In a 109-page judgment by a three-judge Bench led by Justice NV Ramana in the Karnataka MLAs’ disqualification case, the court had held that a Speaker who cannot stay aloof from the pressures and wishes of his political party does not deserve to occupy the chair. Additionally, Article 190(3)(b) of the Constitution mandates that the acceptance of resignation by the Speaker is not a matter of right of a legislator, but subject to the Speaker’s discretionary satisfaction about the authenticity of the resignation.
Not the first judicial intervention in a Speaker's decision
Kumar’s role during the Karnataka political crisis and a deadline by Governor Vajubhai Vala to the HD Kumaraswamy government to prove majority was also reminiscent of a 25-year-old battle which led to the landmark SR Bommai judgment. It involved the Speaker, the Governor, the ruling party and the Supreme Court. Bommai was the Chief Minister of Karnataka but his government was dismissed by the then-governor on the account of withdrawal of support of 19 MLAs. The Supreme Court had held the dismissal of the government unconstitutional.
Likewise, in January 2018, the Madras High Court had to intervene in the matters of the Tamil Nadu Assembly whose Speaker P Dhanapal disqualified 18 AIADMK MLAs after they declared allegiance to ousted AIADMK deputy general secretary TTV Dinakaran, expressing their lack of confidence in Chief Minister Edappadi K Palaniswami.
According to the Supreme Court's 2007 judgement in the Raja Ram Pal vs The Hon'ble Speaker, Lok Sabha and Others case, the British system of parliamentary supremacy mandates that courts arguably play no role in monitoring the exercise of parliamentary privilege. However, the political nature of the Speaker's election to the House interferes with his/her ability to main neutrality of the post. When a Speaker fails to maintain institutional balance, and his actions seem to have an unwarranted conflict of interest, the impacted parties have no option but to call for judicial intervention.
Another popular example of the Speaker taking sides in matters of the House is from Tamil Nadu. In 1988, Tamil Nadu Assembly Speaker PH Pandian disqualified six senior AIADMK ministers for giving up their party membership, along with 27 other MLAs (disqualified for not attending a confidence motion), identified with the pro-Jayalalithaa faction. The Meghalaya Speaker, PR Kyndiah, suspended the voting rights and later even disqualified five MLAs in the 1990s, just prior to a no-confidence motion.
In a similar case, in 2016, 16 MLAs in the Arunachal Pradesh Assembly (out of a total of 41 of the ruling party) were disqualified by the Speaker, Nabam Rebia, despite not officially leaving the party or defying its directives. The same year, Uttarakhand Assembly Speaker, Govind Singh Kunjwal, disqualified nine MLAs from the ruling party despite the MLAs not leaving the Congress or voting against it in the Assembly.
The passing of the anti-defection law in 1985 gave Speakers the power to expel MLAs and MPs for anti-party activities, both inside and outside the legislature, effectively making the Speaker an active player in the politics of government formation and survival. However, there are several examples when Speakers failed to show impartiality in their decisions.
The question that then comes to the mind is: Is scrapping the anti-defection law a solution?
Perhaps, a possible solution would be that decisions falling under the ambit of the anti-defection law may be suggested by the House, but finalised by a body or office-holder with no vested interests like the Election Commission. Additionally, since courts look on conflicts arising out of the Speaker's actions on a case-by-case basis, constitutional safeguards are the need of the hour.
Mahatma Gandhi, in 1931, observed, “Democracy is a great institution and therefore it is liable to be greatly abused. The remedy, therefore, is not the avoidance of democracy but the reduction of the possibility of abuse to a minimum.”
A solution other than stripping the Speaker’s powers in respect of the anti-defection law could be doing away with the law itself.
With inputs from PTI
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