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(Gunjan Baheti and Tanmay Joshi are fourth year students of National Law University, Nagpur) Introduction The 52nd Constitutional Amendment incorporated the Tenth-Schedule in the Constitution, which deals with the disqualification of a Member of Parliament on grounds of defection. However, the ongoing political crisis in various states is making us question the validity of its various provisions, mainly paragraph 2(1)(a) and paragraph 6(1). These paragraphs have been under judicial scrutiny time and again. This article aims to provide an insight into the issues involved with the “Anti-Defection Laws” and discusses the way forward after analyzing the judicial approach and the Speaker’s role. Speaking of the Speaker
The architects of the Constitution of India adopted the Westminster Model to operate the Indian legislature. In this model, parliamentary proceedings are conducted by a presiding officer known as the Speaker of the House. The Speaker is placed at a towering position in the “Table of Precedence, i.e. at rank sixth. He is the paramount arbiter and interpreter of the provisions pertinent to the functioning of the House. His decisions are indisputable and binding and are ordinarily exempted from challenge or criticism. As the Supreme Court of India (‘SC’) held in Kihoto Hollohan v. Zachillu, “The Speakers/Chairmen hold a pivotal position and are guardians of the rights and privileges of the house. They are expected to take far-reaching decisions in the Parliamentary democracy”. The elected members of the house have to elect two persons as Speaker and Deputy Speaker. The Speakers and Deputy Speakers of all the State Legislative Assemblies are elected by the same modus operandi. The office of Speaker is a Constitutional office and hence conferred with immense administrative and discretionary powers. One of such powers is that he can disqualify any member who has deserted the party’s allegiance owed by him. It has been time and again observed that the elected representatives swerve parties to fulfill their political gains which shake the foundations of democracy. They are oftentimes allured by the adversaries with cushy ministerial posts or monetary enticement. This malpractice of switching the parties is known as defection. To cease this menace, the Constitution (Fifty-Second Amendment) Act, 1985 was brought with the following objective: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it”. The Tenth Schedule lays down that if a member gives up his membership, or defies his party's whip, he will be disqualified from the house and this question of whether a member is subject to disqualification is referred to as the Speaker of the house. It is sine qua non for a Speaker to act in fair, just, and unbiased manner. The speaker can be removed by passing a resolution with an effective majority after giving prior notice of fourteen days. The Unresolved Tenth-Schedule: A Mare’s Nest The Tenth-Schedule which consolidates the provisions for disqualification on ground of defection is read with Articles 102(2) and 191(2) of the Constitution, which applies for either Houses of the Parliament, and the State Assemblies respectively. Para 2 of the Schedule enlists the grounds of defection on which disqualification can be done. Para 6 provides that the decision as to the disqualification of any member of the House shall be decided by the Chairman/Speaker of such House which shall be final. The question of the extent of judicial review and other questions of constitutional significance related therewith have come up recently due to the crisis faced in Rajasthan and before in Madhya Pradesh, Manipur and Karnataka. To begin with, para 2(1)(a) states that one of the grounds for disqualification would be if a member voluntarily gives up his membership of his original political party. As the SC held in Kihoto Hollohan: “The provisions of Paragraph 2(1)(a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party which had set him up as a candidate at the election, then he should give up his membership of the legislature and go back before the electorate.” This puts before us a pertinent question as to whether this para is violative of the basic structure and the fundamental right to freedom of expression under Article 19(1)(a) to render it void, mainly when exists intra-party dissent, as framed by the HC of Rajasthan. Recently, Sachin Pilot, former Deputy CM of the State of Rajasthan challenged the disqualification notice issued by the Speaker of the Rajasthan Assembly which was based on the disqualification petition filed by Chief Whip of Congress Party. The HC framed thirteen questions concerning the Speaker’s notice under Tenth-Schedule. The second question which arises is the extent of judicial review of the speaker’s adjudication which though settled by the SC in Kihoto Hollohan is still a half-settled position. The SC upheld the Speaker’s decision disqualifying a member under para 6(1) and the judicial scrutiny of it. Keeping in view the pivotal position the Speaker, it held that such judicial scrutiny cannot be done unless the Speaker decides that matter: “Having regard to the constitutional scheme in the Tenth-Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen; and no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.” However, this was unfortunately only a half-given guideline as no time frame was mentioned by the SC which is now bringing in delay and more questions on the judicial review being skipped by the Speaker. Third, as mentioned above, the Speaker’s election is such in the Indian polity that there is a higher probability of him being seen as a biased official. Though SC has termed the Speaker as “the very embodiment of propriety and impartiality” yet it was precisely indicated in the Kihoto Hollohan that “tenure of a speaker is dependent on the continuous support of the majority in the house” which sidles in, the partisan approach of the Speaker. Although it is expected from the Speaker to act in a nonpartisan manner but in the garb of adopting a fair-minded approach, he accommodates his political party backhandedly as he is also a member of a political party. As the Speaker of legislative assemblies is elected by the elected members and thus belongs to the ruling party. When all is said and done, the ruling party dominates. These discrepancies have frequently caused political turmoil in the states and engulfed the pious protector of the mandate. Progression: The Way Forward There can be ways to enhance the implementation of the object and purpose of the Tenth-Schedule. The voluntary giving up of the membership of a political party under para 2(1)(a) can be express or implied by conduct. The term “voluntarily given up membership” should not be read as being synonymous with “resignation” as it has a wider connotation, reference is being made to intra-party dissent. The SC in Kihoto Hollohan considered intra-party debate in the context of Para 2(1)(b) but failed to read it under para 2(1)(a) for it holds a tight nexus there too. The SC opined: “But a political party functions on the strength of shared beliefs… Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon, in political tradition, as a desirable state of things.” It is a fact that the history of the progress of mankind is the history of informed dissent. Freedom of expression cannot be vitiated on the grounds that all the party members should necessarily share a common belief. Undoubtedly, this should not be construed as giving a member the flexibility by excusing him from para 2(1)(a) on grounds of alleged intra-party debate alone but should be properly investigated. There should be an established history of such non-cooperation for the court to conclude that disputes indeed existed and it was not in the interest of the person to continue being a member of such party where his opinions were sidelined or not respected. Furthermore, in a case the Court has held that: “even if such a member is thrown out or expelled from the party, for the purposes of the Tenth-Schedule he will not cease to be a member of the political party that had set him up as a candidate and will continue to belong to that political party even if he is treated as unattached”. However, this approach is inappropriate because if a duly elected member is disqualified without voluntarily resigning, on the whims and fancies of the party, it would have dangerous consequences. The decision of the Speaker, acting as a tribunal, is amenable to judicial review. However, a caveat was given in Kihoto Hollohan that such a review is viable only when the power of disqualifying a member is exhausted by the Speaker. It is this caveat that has given genesis to this dysfunctional state of affairs in various states. This unbridled power of Speaker is in contestation since its very inception in 1985. It has been misapplied to facilitate the directions of the ruling party. A maximum period must be allotted within which the Speaker has to resolve the matter of disqualification because this inadequacy has been exploited time after time. Likewise, in the Manipur crisis, the Speaker took two and a half years to decide the question of disqualification. The emphasis is not put upon to decide the matter hastily but in a reasonable time. The SC in Keisham Meghachandra held that, Unless there are any exceptional circumstances, disqualification petitions under the Tenth-Schedule should be decided by Speakers within three month. In case no decision is forthcoming, it will be open to any party to apply to this Court. However, the time-limit was only prescribed for this particular case applicable to its peculiar circumstances and there is no law laid down as to the time-limit applicable in general by the courts or the Parliament. Moreover, The Speaker can act in a biased manner because the office has fragile security of tenure. He is always suspicious that if he would not act in a manner to further the agenda of his party then he will be removed from his office by a bare majority. In Britain, the Speaker does not belong to any party. There is a convention that Speaker has to leave his party to go on with neutrality after being elected. The situation in India is expected to be better if the Speaker renounces all his political alignment and undertakings. Furthermore, as recommended by the Law Commission of India, the transfer of matters pertinent to disqualification to the Governor and the President would not attain the motive of non-partisanship as Governor being a representative of the Union, cannot be figured as a neutral authority and he also does not have the security of tenure as he works during the pleasure of the President. Parallelly, the President is fettered by the Council of Ministers led by the PM. The SC of India has reiterated the need to reform the role of Speaker in the disqualification proceedings. The Court has connoted the need of setting up an independent tribunal chaired by a retired SC Judge or a retired Chief Justice of an HC, or some other independent mechanism to ensure that such disputes are resolved both expeditiously and impartially. Conclusion It is high time to give real teeth as suggested by Justice R. F. Nariman to the provisions contained in the Tenth-Schedule which are crucial for the smooth functioning of democracy. The neutrality of the Speaker should be upheld and a reasonable time-frame should be provided to the Speaker for determining questions of disqualification. The Law should be interpreted so that the freedom of expression of the members is not compromised yet there is adequate judicial scrutiny of intra-party dissent.
4 Comments
18/6/2022 11:36:56 pm
This unbridled power of Speaker is in contestation since its very inception in 1985. It has been misapplied to facilitate the directions of the ruling party. Thank you, amazing post!
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19/6/2022 12:37:42 am
The office of speaker is a constitutional office and hence conferred with immense administrative and discretionary powers. Thank you for the beautiful post!
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2/8/2023 03:55:09 am
It has been time and again observed that the elected representatives swerve parties to fulfill their political gains which shake the foundations of democracy. Thank you for taking the time to write a great post!
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