Role of Speaker in Tenth Schedule

In the 21st century, coalition is the dominant form of governance. National and State level governments are both defined by coalition politics and modes of governance. In such a scenario, an anti-defection law seems like a necessity in order to ensure some sort of stability in the government. However, this is a precarious statement. The purpose of the tenth Schedule was to combat the evil of political defections, it can be said to be the need of the hour as the political situation in the early 1970s, characterised by the epithet aaya ram gaya ram, demanded it. On 8th December, 1967 the Lok Sabha passed a resolution constituting a Committee known as “Committee on Defections”, this Committee in its report dated 7th January, 1969 highlighted the alarming rise in change of party allegiance by legislators. Out of 210 detecting legislators of the States of Bihar, Haryana, M.P., Punjab, Rajasthan, U.P. and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The Committee noted multiple acts of defections by the same person or set of persons and the belief was that corruption and bribery were the reasons behind most of these defections. [1] In between the fourth and the fifth general elections in 1967 and 1972, from among the 4000 members of the Lok Sabha and the Legislative Assemblies in the States and the Union Territories, there were nearly 2000 cases of defection and counter-defection, amounting to nearly half of them.  By the end of March, 1971 approximately 50% of the legislators had changed their party affiliations and several of them did it many times- some even as many as five times! One MLA was found to have defected five times to be a minister for only five days. Defections were always rewarded thereby establishing the fact that these “floor crossings” were engineered and bought. on an average more defections per year took place after the anti-defection law as laid down in the Tenth Schedule came into force than earlier. What has been even more perplexing is that some of the Speakers have tended to act in a partisan manner and without a proper appreciation, deliberate or otherwise, of the provisions of the anti defection law. Defections encourage corruption at the highest levels. [2] What have been the possible consequences of the 10th schedule on Indian politics and Parliamentary democracy? In order to deter crossing of the floor by MPs and MLAs, is it justified to compromise upon their freedom of speech and expression, thus hindering democracy?

Chapter 1- Speaker and Tenth Schedule

The Statement of Objects and Reasons appended to the Anti Defection Bill reads:

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… This Bill is meant for outlawing defection and fulfilling the above assurance.

It is useful to keep the objects and the purpose in mind while interpreting the provisions of the tenth schedule. [3] The first question that one wishes to ask is, have the abovementioned assurances been fulfilled? Has the law succeeded in preventing Members of Parliament (hereinafter MPs) and Members of Legislative Assemblies (hereinafter MLAs) from rampant defections and bringing down governments? This answer to this a simple resounding No. Does this law restrict parliamentary debate in any way? The second question that comes to fore is does the law, while combating defections, also suppress intra party debate and dissent? Does it restrict the freedom of MPs and MLAs from voicing their independent opinion and concern of their voters in opposition to their party’s official position? Should these decisions on defections be decisively judged by the Speaker who is not required to give up the membership of his party upon election? In most cases, the Speaker belongs to the ruling party or the coalition; should the final decisions on defections be taken by an external neutral body like the Election Commission?

The Speaker is looked upon as the true guardian of the traditions of parliamentary democracy. His unique position is illustrated by the fact that he is placed very high in the Warrant of Precedence in our country, standing next only to the President, the Vice-President and the Prime Minister. [4] Our office of Speaker is inspired from the development of Speakership in Britain which goes as far back as 1377 when Sir Thomas Hungerford was appointed. Further back into history, presiding officers were called ‘parlour’ or ‘prolocutor’ and have been traced as far back as 1258. On election, the Speaker resigns from his political party. England has ‘supporting’ conventions which actually make it possible for the Speaker to remain impartial. During a general election, he and doesn’t campaign and doesn’t stand on any political issues, but just as the speaker seeking re-election; he is usually unopposed by other political parties. [5]

Speaker decides the question of disqualification as a tribunal. [6] The power conferred on the Speaker or Chairman to decide whether a member of either House of Parliament has incurred any disqualification does not make him a competent authority to remove such a member. [7] Tenth schedule does not confer any power of discretion upon the Speaker or the Chairman as the case may be, if the facts show that the provisions of para 2 (1), (2) or (3) [8] are attracted, disqualification will apply and he is then required to make a decision accordingly. [9] The power exercised by the Speaker is of a judicial nature. Therefore, it is not appropriate for him to claim that the determinative jurisdiction under tenth Schedule is not a judicial power and comes within the non-justiciable legislative area. [10] In the light of artices 102 and 191 of the Constitution and the tenth Schedule, the Speaker acts in the tenth Schedule only when there is a claim of disqualification made before him under para 2. It is part and parcel of his jurisdiction to decide the question raised before him both with respect to the plea raised by the complainant and also in the context of the pleas raised by the members sought to be disqualified that they have not incurred disqualification on account of a split in the party or a merger. [11] He cannot embark upon an independent enquiry whether there has been a split or merger. He can only entertain claims under para 3 and 4 when he has acquired jurisdiction under para 6, this in turn happens only when he is called upon to decide. When the speaker fails to decide upon an application for disqualification made before him, it will not amount to mere procedural illegality but it amounts to a jurisdictional illegality and it goes against the constitutional principle of adjudication in the scheme of Schedule X read with arts. 102 and 191 of the Constitution. It also goes against the rules framed in that behalf and the procedure that he was expected to follow. [12] Hence, it is held by the Supreme Court that the decision of the Speaker impugned is liable to be set aside in exercise of the power of judicial review. Notwithstanding the finality clause in para 6(1) or the non obstante clause in para 7, the decision of the Speaker under para 6 of tenth Schedule is subject to judicial review by the Supreme Court under article 136, but this is only on ground of jurisdictional errors. [13] A constitutional bench of the Supreme Court has opined that the Speaker’s decision shall be subject to judicial review on the specified grounds by both the Supreme Court under article 136 and the High Courts under article 226 and 227. [14] With respect to the duty of the court in such delicate situations, the Supreme Court has stated that “it is most true, that this Court will not take jurisdiction if it should not: but it is equally true that it must take jurisdiction if it should.” [15] It can also be ultra vires for the reason that it is in contravention of a mandatory provision of the Constitution which confers upon him the power to take such an action. The rules framed by the Speaker under para 8(1) do not constitute mandatory provision of Constitution. [16] The field of judicial review in respect of the orders passed by the Speaker under paragraph 6(1) is confined to breaches of the constitutional mandates, mala fides, non-compliance with rules of natural justice, [17] colourable exercise of power based on extraneous and irrelevant considerations and no evidence. [18] In the case of Haryana Legislative Assembly (Disqualification of Members on grounds of Defection) Rules, 1986, [19] made by the Haryana Legislative Assembly the principle of natural justice is recognised but it cannot be put ina straitjacket, it depends on the fact situation of the case. While considering a plea of natural justice, it is necessary to take note of the fact that the proceedings under tenth Schedule are not comparable to a trail court or departmental proceedings against an employee. The subject is the elected representative of the peoples adjudicated by the independent high office of the Speaker. It is upon the court to decide an issue of drawing adverse inference against the Speaker, with regard to the facts of the case. [20] Under the tenth Schedule while functioning as a tribunal, the Speaker has no authority to review his decision on disqualification of a member while functioning as a tribunal. [21]

Chapter II- Recent Developments

In our constitutional scheme, the Speaker enjoys a pivotal position. The position is and has been held by people of outstanding ability and impartiality. In the past, certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal. [22] Write Subhash Kashyap (he is cited by court in jagjit singh, para 51)

There is a huge debate which flared up after Somanth Chatterjee’s expulsion from his party about the question of Speaker’s “voluntarily” resigning from his party. [23] Did he ‘voluntarily give up’ his membership of his party by refusing to resign as Speaker following the party’s withdrawal of support to the UPA government? [24]

Law commission suggests that [25] the question of disqualification of a member should be adjudicated by the President on the recommendations of the Election Commission and not by the Speaker. The rationale behind this is that the legislators should not be free to ditch the voters who vote not only the individual but also opt for a particular party on the basis of its manifesto. The manifestos of the parties should also be given statutory recognition so that they may not work against their manifestos and act in accordance with the mandate of the people. National Commission to Review the Working of the Constitution has made certain recommendations for substituting the post of Speaker as an adjudicatory tribunal. [26] The Commission recommends that the power to decide on questions as to disqualification on ground of defection should vest in the Election Commission instead of in the Chairman or Speaker of the House concerned. Thus we see that both the Law Commission and the National Commission to Review the Working of the Constitution have taken the same stance regarding the adjudication of disputes with respect to disqualification on grounds of defection.

Conclusion

The best solution is not to vest the powers of adjudication in another body as it may have its own set of problems, but to correct the problems that we are facing with the Speaker’s office. Most of the issues stem from the fact that the Speaker retains his membership to his original party, if the tenth Schedule is amended to ensure that he resigns from his office after election or even after he leaves his post [27] , the impartiality question will be put to rest. It invites this in para 5 by stating that the speaker or chairman will not be subject to disqualification if he resigns from his party on election. [28] It is now clear that although India tries to mimic the impartiality and dignity of the office of Speaker in Britain, it has not yet succeeded. This is owing to the failure to separate the Speaker’s office from party politics. [29] Somnath Chatterjee declined to resign from his party membership, he is the first Speaker to be expelled from his party. The present Speaker, Meira Kumar, has also retained her party membership. Vithalbhai Patel, the Speaker before Independence, tried to set the trend by formally resigning from his party but it died down. The only other Speaker to resign after assuming office of Speaker was Neelam Sanjeeva Reddy in 1967. [30]