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( Sneha Palekar and Palak Choudhary are 4th year students of ILS Law College Pune, Savitribai Phule Pune University ) INTRODUCTION A three-judge bench of the Honourable Supreme Court of India (“SC”) on 21st January 2020, in the case of Keisham Meghchandra Singh v The Hon’ble Speaker of Manipur Legislative Assembly, (“Manipur LA Case”) evaluated the design of the Tenth Schedule (“TS”), termed as ‘The Anti-Defection Law’, which ascribes the method for resolution of disputes arising by reason of Defection. An elected member of either House of legislature is said to commit defection when after elections he/she voluntarily renounces his/her association with the political party he/she got elected from as a candidate and abandons it to join another political party.[i] Paragraph 6 of the Schedule, vests exclusive jurisdiction with the Speaker over matters of defection by stating that every question pertaining to disqualification on grounds of defection shall be referred to the Speaker for his decision which shall be final. Further from a plethora of cases it is established that having regards to this scheme, Judicial Review does not cover any stage before he makes his decision, as also held by a three-judge bench of the SC in the noteworthy case of Ravi S. Naik v Union of India. It comes into play only subsequently, wherein the power extends only to those orders which reflect jurisdictional errors. This was reiterated again by a three-judge bench of the SC in Raja Ram Pal vs The Hon'Ble Speaker, Lok Sabha . Thus the Speaker of Legislature is the sole and final arbiter of all proceedings of defection.
Despite this well-established model, the Court in the Manipur LA case made an observation on a point of law previously addressed in the minority judgment of the landmark case of Kihoto Hollohan v Zachillhu & Ors (“Kihoto Hollohan case”) when the constitutionality of the Schedule was challenged in the Apex Court. The dissenting opinion of the Court was that by vesting authority for adjudication of disputes with the Speaker, the Schedule had departed from Rule of Law. At the perusal of this opinion, the Court in Manipur LA case put forth a proposition that this anomaly can be eliminated if the authority of Speaker is replaced by an external Independent Tribunal outside the realm of Legislature. This article aims to, firstly, evaluate the rationale of the Court for making the recommendation, secondly, analyse the utility of this proposal in the future course of law relating to Defection, and finally, discuss an alternative suggestion put forth by the Law Commission of India to provide an independent mechanism under TS. I. EVALUATION OF THE MANIPUR LEGISLATIVE ASSEMBLY CASE The factual matrix of the Manipur LA case is that after the Manipur Legislative Assembly (“LA”) elections of 2017, 13 disqualification petitions were filed before the Speaker against a member for defection, because he was sworn in as a minister in the government led by Bhartiya Janata Party even though he got elected as a candidate of the Congress Party. When the Speaker did not take any action against him, two writ petitions were filed before Manipur High Court (“HC”) and on their failure, a Civil Appeal was filed against the second petition in the Hon’ble SC, praying for it to decide on the disqualification petitions and issue a writ of Quo Warranto against the member for illegally holding a position in the House. Since the writ was filed before the decision of Speaker, judicial review was not exercisable and the Court had to revert back the petitions to the Speaker, directing him to make a decision within 4 weeks. However no action was taken by the Speaker even after the expiry of said period. Instead he applied for an extension of another 8 weeks, but later withdrew it only to ask for an extension of 10 days. When he yet again did not keep his word the Court observed that in spite of having ample time to make a decision, the Speaker wanted to stall it further when already a long time had gone by without one, so much so that the life of the Assembly was already halfway through Since the Speaker had relinquished his chances of making a decision and defection was apparent on the face of law, further waiting would have meant illegally holding of position as minister by the member. Hence, the Court by using its power under Article 142, removed the Speaker from his post and restrained him from entering the Legislative Assembly as a minister. Despite acting in accordance of traditional norms of adjudication, one thing which irked the Court was its disappointing experience over the years in dealing with matters of defection. The Court expressed that, although once a person is appointed as a Speaker it is presumed that he/she departs from parties and politics[ii] and that for a successful working of the House, confidence in the impartiality of the Speaker is a pre-eminent condition,[iii] it had still been experiencing cases of inaccurate decisions made by Speaker in the years that have followed since the passing of the TS in 1985. Hence, regardless of this presumption of impartiality, it could not turn a deaf ear to the reasons elucidated in the dissenting opinion of the Court in the Kihoto Hollahan Case, which indicated that the Speaker is not an appropriate authority for adjudication of disputes on Defection under TS. These reasons can be classified as the following. A. Constitutional intendment of TS The grounds for disqualification of members of Legislature, after being duly elected, are enumerated under Article 102 and 191 of the Constitution. The power of making a decision on questions arising on grounds under Article 102(1) and 191(1) vest with the President/Governor in accordance with the opinion of the Election Commission, as per Articles 103 and 192 respectively. These are high Constitutional functionaries whose security of tenure is independent of the will of the Houses of Parliament. Hence it is evident that when the Constitution was drafted prior to enactment of TS, it contemplated decisions on ‘questions as to disqualification of members after being duly elected’ to be made by an external authority beyond the power of Legislature. However under sub-clause (e) of clause (1) of both Article 102 and 191, Parliament has the power to enact any law prescribing grounds for disqualification, other than those mentioned in the earlier sub-clauses. This clearly indicates that all grounds of disqualifications are contemplated to be dealt with under Article 102 and 191 only and that TS was enacted by the Parliament under the power conferred by these Articles. It is thereby apparent that ‘disqualification on grounds of defection’ under Article 102(2) and 191(2) is also species of the same genus “disqualification” and like other disqualifications, the constitutional intendment in the context of ‘disqualification on ground of defection’ is also to confer adjudicatory power in the hands of an independent authority outside the Houses. This authority could also be the President/Governor, deciding in accordance with the opinion of another similar independent Constitutional functionary like the Election Commission of India, whose tenure and terms and conditions of office is like that of a SC Judge, and not an authority whose tenure is dependent on the pleasure of the Majority in the House. B. Violation of Rule of Law Matters of disqualification have adjudicatory disposition and require the decision to be given according to the scheme for adjudication of disputes based on the Rule of Law. Consequently, Natural Justice which is a postulate of Rule of law, and its necessary concomitant Rule against Bias is inherent of the disqualification procedure. By this virtue, the Anti-Defection law, also being a premise of disqualification, is subject to two principles of Rule against Bias, namely, ‘nemo judex in causa sua’ which states that “A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased”, and that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”. This, in the opinion of the Court, appears to be the underlying principle adopted by drafters while entrusting the above mentioned powers under Article 103 and 192 with the President/Governor, instead of the Speaker, notwithstanding the high dignity of his office. This is a reflection of the factum that free and fair elections and Rule of law are basic postulates of democracy and that democracy is the basic structure of the Constitution. C. Dependent life of Office of Speaker The principle of Rule against Bias is reflected in various provisions of the Constitution. For instance, the Judges of the SC and HC can be removed only by a motion addressed to the President, signed by members of both Houses of the Parliament. The President of India is also removed by motion of impeachment introduced in both the Houses of the Parliament. These provisions ensure that the office of these dignitaries is not subjected to the will of members they are intended to directly serve. The Speaker is elected from among the members of the legislative assembly by a simple majority and in most cases is a candidate nominated by the ruling party, in consultation with other parties of the House. He is also removed from his office by a resolution passed by majority of the members of the House of People, indicating that his tenure is dependent on the will of the House. Moreover, he still is a member of a political party and as a rule; members are expected to act in accordance with the ideologies of their respective political parties and not against them because it is the political parties that set up candidates at election who predominantly get elected.. Hence the Speaker and his membership of the house is at the behest of the political party he belongs to and the house itself. II. PROPOSITION PUT FORTH BY THE COURT On the basis of the aforementioned reasons, the Court recognised the crux of the dissenting opinion in the Kihoto Hollohan case which was that the Constitution from its provisions, is vocal about its intention to incorporate independent machinery in matters of adjudication relating to disqualification of members of the House and the Speaker does not qualify to be that authority as his tenure is contingent on the pleasure of majority in the House, attributing the likelihood of partiality. This is a departure from Rule of Law and needs to be rectified. Ergo, the Court opined that it was time that the Parliament rethink as to whether it is wise to entrust this quasi-judicial power under the TS with the Speaker especially when even while presiding over his office, he continues to belong to a particular political party either de jure or de facto. Thereby it proposed that Parliament must make an attempt to amend the provisions of the TS to substitute the Speaker as an authority and replace him with an outside independent mechanism or a Permanent Tribunal comprising of either a retired SC Judge or a retired Chief Justice of a HC to decide disputes on Defection and to effectuate the essence of TS. In the meanwhile, the Court set out a period for adjudication of disputes by stating that the Speaker must decide on the petitions within a ‘reasonable time’ which would depend upon the facts of the case, and in the absence of exceptional circumstances, it would be three months from date of filing of petition before him. III. IMPLICATION OF THE RECOMMENDATION OF COURT Since the Speaker is responsible for functioning of the House, it is expected from him to have a sense of fairness, and absolute impartiality, and he must have unimpeachable faith in the aspects of Rule of Law. This expectation is a constitutional warrant, as held by a constitutional bench of SC in Nabam Rebia And Etc. Etc v Deputy Speaker And Ors. However in multiple recent instances, he is found to be only act as a party puppet. Such as in the famous Karnataka MLAs’ disqualification case, the Speaker disqualified 17 ministers for Defection and barred them from competing for by-polls in the state. The Court not only allowed them to contest, but also recognised the growing trend of Speakers to act against their constitutional duty of being unbiased. It also recommended that Parliament in order to strengthen provisions of TS must put a stricter check on the undemocratic practices of Defection. This check is not possible only by setting a time limit for adjudicating the disputes as it won’t completely eradicate the chances of having biased decisions. Such a check is possible only by an external Tribunal as it would contribute in fulfilling the objective of TS in the following four ways. A. Swift adjudication of disputes The main aim of setting up a separate tribunal or a quasi-judicial body headed by esteemed judges of SC or HC is to entrust the power of adjudication with an equally qualified and competent institution which will ensure faster resolution. This is very well reflected in the constitution of Tribunals like The National Green Tribunal, The Income Tax Tribunal and The National Human Rights Commission among others, which are headed by former judges of the SC or the HC. Hence the judgment is also an attempt to prevent multiplicity of cases before the Courts. B. Impartial and efficient application of law The proposed Judges are high functionaries of the Indian Judiciary. They are experienced, learned and well acquainted with procedural and legal norms expected to be followed in adjudication, ensuring that law is applied in its purest form and justice is manifestly done. Since they are exponents of justice and their office is independent of will of the House, there is also a presumption that they would be neutral in exercise of their power. C. Effectuation of Democracy A political party goes before the electorate with a particular programme and sets up candidates at the election on the basis of such programme by virtue of which a candidate is so elected. When the elected member defects, he not only violates the fundamental trust of people vested in him at the time of elections, but also vitiates the democratic character of government by not representing the will of people, causing people to lose confidence in the party and the Government. An independent mechanism would not only repose confidence of the people in election process, but also safeguard the representative form of government. D. Elimination of Constitutional illegality The Constitution per se does not state any time-frame within which the Speaker is supposed to decide on the petitions under TS and leaves it to his discretion. Over the years, Speakers have been found to exploit this discretionary power by unnecessarily withholding their decision for prolonged periods, sometimes even till the end of the life of the Assembly. This abuse of power defeats the Object of TS and perpetrates constitutional illegality. It is because when a member is disqualified, his continuance in the Assembly or his holding of office as Ministers even for a day is unconstitutional and illegal, since members who attract disqualification do not deserve to be members of Legislature for even a day, as held by a three-judge bench of SC in the notable case of Sri Rajendra Singh Rana & Ors vs Swami Prasad Maurya & Ors. This inherently goes against the Constitution, its values and the principles of democracy, especially when the disqualification is identified when the life of the assembly is nearing end. A Permanent Tribunal with specified procedure and deadline would have least chances of commission of constitutional illegality. IV. ALTERNATIVE PROPOSITION BY THE LAW COMMISSION OF INDIA The idea of independent mechanism is not novel and a different proposition on the same lines was first conceptualised by the Law Commission of India in its 170th report. In view of the increasing undesirable practices of defection, the Commission devised a modus operandi of ensuring an impartial adjudication which would be in consonance with above mentioned constitutional intendment of Article 102 and 191. Under Proposal no 1.3.3.2 of Chapter III, Part I, it suggested an amendment to Article 102 and 191, that is firstly, to insert a new sub clause (f) in both clauses of 102(1) and 191(1) before the explanation, which shall provide for disqualification on grounds under TS, and secondly, to delete clauses 102(2) and 191(2) altogether. By this, the power to make decision on questions of disqualification on grounds of defection, like disqualification on other grounds, shall also vest with the President in case of Parliament and with Governor in case of State Legislature, in consultation with the Election Commission under Article 103 and 192 respectively, thus ensuring impartial adjudication. Whether it is by way of vesting power with the President/Governor or by way of constituting an independent Permanent Tribunal, the underlying idea is to divest the Speaker of his/her adjudicatory power under TS. Hence, it is time that the suggestions and recommendations of both, the Judiciary and the Executive, are acted upon by the Parliament to ensure independence of adjudicatory mechanism and impartial resolution of disputes under TS. CONCLUSION From the above, it can be concluded that though the Speaker holds the most superior rank in the House, his position stands influenced in the process of adjudication over matters of Defection. Therefore an Independent Tribunal, which is outside the scope of Legislature and political parties would accurately fit within the four walls of democracy and would give real teeth to the provisions of the TS. Thus this judgment in the Manipur LA case gives an altruistic proposition for achieving the Constitutional Objective of keeping a check on Political Defection. [i] Lok Sabha Debate, (January 30 1985), <https://eparlib.nic.in/bitstream/123456789/319/1/lsd_08_1_30-01-1985.pdf>. [ii] G. V. Mavalankar, The Office of Speaker, Journal of Parliamentary Information (Vol. 2, No. 1 April 1956) 33. [iii] Erskine May, Parliamentary Practice (20th edn) 234, 235.
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