Bench: R.F. Nariman, J (author), Aniruddha Bose and Ramasubramanium JJ.
Facts of the case were that the election for the 11th Manipur Legislative Assembly was conducted in March 2017. The said Assembly election produced an inconclusive result as none of the political parties were able to secure a majority i.e. 31 seats in the Legislative Assembly of 60 seats in order to form the Government. 13 MLAs from congress joined BJP. Thirteen applications for the disqualification of respondent were filed before the Speaker of the Manipur Legislative Assembly stating that Respondent was disqualified under paragraph 2(1)(a) of the Tenth Schedule. Since no action was taken on any of these petitions by the Speaker, one T.N. Haokip filed a writ petition before HC and HC referred the matter to SC.
Ravi S. Naik v. State of Maharashtra 1994 Supp. (2) SCC 641 – the Court found that the voluntary giving up of the membership of a political party may be express or implied by conduct.
NO BAR ON JUDICIAL REVIEW IF SPEAKER FAILS TO DISQUALIFY THE RESPONDENT:
Five Judge Bench judgment in Rajendra Singh Rana – the Speaker specifically refrained from deciding the petition seeking disqualification of the 13 MLAs. On our reasoning as above, clearly, there was an error which attracted the jurisdiction of the High Court in exercise of its power of judicial review.”
It is clear from a reading of the judgment in Rajendra Singh Rana (supra) and, in particular, the underlined portions of paragraphs 40 and 41 that the very question referred by the Two Judge Bench in S.A. Sampath Kumar (supra) has clearly been answered stating that a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review.
A QUIA TIMET ACTION is the right to be protected against anticipated future injury that cannot be prevented by the present action.
In this context declared the MLA disqualified in case speaker refrains from doing so.
Kihoto Hollohan– judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible
the Court made it clear that judicial review is not available at a stage prior to the making of a decision by the Speaker either by a way of quia timet action or by other interlocutory orders.
REASONABLE PERIOD for deciding on the question of disqualification is 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.
Emphasis on MINORITY JUDGMENT IN KIHOTO HOLLOHAN by J. Verma;
It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto.
Parliament shall consider substituting decision making from speaker to 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 to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy.
The only relief that can be given in these appeals is that the Speaker of the Manipur Legislative Assembly be directed to decide the disqualification petitions pending before him within a period of four weeks from the date on which this judgment is intimated to him. In case no decision is forthcoming even after a period of four weeks, it will be open to any party to the proceedings to apply to this Court for further directions/reliefs in the matter.
Disqualification Powers of Speakers
This article is based on “Course correction for the Speaker’s office” which was published in The Hindu on 06/02/2020. It highlights the issues associated with the role of Speaker while adjudicating cases of disqualification of members of the House under the Tenth Schedule.
Recently, the Supreme Court in Keisham Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative Assembly & Ors. (2020) case made a significant suggestion regarding disqualification powers of the Speaker. The Court was adjudicating upon the matter relating to the disqualification of Members of the Legislative Assembly (MLAs) in the Manipur Legislative Assembly under the Tenth Schedule.
- The Court recommended the Parliament to amend the Constitution regarding the role of Speaker as a quasi-judicial authority while dealing with disqualification petitions under the anti-defection law (when such a Speaker continues to belong to a particular political party either de jure or de facto).
- The Court suggested that an independent tribunal can be appointed which will substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with matters of disqualifications under Tenth Schedule.
- Currently, disqualification of members of a House/Assembly is referred to the Speaker of the House/Assembly.
- The Tribunal will be headed by a retired Supreme Court judge or a retired Chief Justice of a High Court. The Court also suggested that some other outside independent mechanism can adjudicate on such matters. This will ensure that such disputes are decided both swiftly and impartially.
Role of Speaker
- The sole representative and guardian of powers and privileges of the members, the House as a whole and its Committees.
- Principal spokesperson of the House and represents the collective voice of the House.
- Quasi-Judicial Body: His/her decision in all Parliamentary matters (including disqualification matters under Tenth Schedule) is final, binding and ordinarily cannot be challenged in the Court of law. Thereby, Speaker acts as the ultimate arbitrator.
- For example, on this question whether a bill is a money bill or not, his/her decision is final.
- However, on the questions of disqualification of the members, the Supreme Court in Kihoto Hollohan vs Zachillhu and Others, 1992 case ruled that the decision of the Speaker in this regard is subject to judicial review.
- Maintains order and decorum in the House for conducting its business and regulating its proceedings.
- Allocates duration for debates, can discipline members of the House, and even override decisions taken by the Committees of the House.
- Final interpreter of the provisions of the Constitution of India, Rules of Procedure and Conduct of Business of Lok Sabha, and Parliamentary precedents within the House.
Constitutional Provisions Related to Speaker
- Article 93/178: Appointment of the Speaker and Deputy Speaker of the Lok Sabha/ Legislative Assembly.
- Article 94/179: Vacation/resignation/removal from the offices of Speaker and Deputy Speaker of the Lok Sabha/ Legislative Assembly.
- Article 95/180: Power of the Deputy Speaker or other person(s) to perform the duties of the office of or to act as the Speaker of the Lok Sabha/ Legislative Assembly.
- Article 96/181: The Speaker or the Deputy Speaker not to preside while a resolution for his removal from office is under consideration.
- Article 97/186: Salaries and allowances of the Speaker and Deputy Speaker.
Issue of Impartiality
As the office of the Speaker is vested with great prestige, position, and authority, independence and impartiality of the Speaker becomes its sine qua non (an essential condition). However, the office of Speaker has been criticised time and again for being an agent of partisan politics.
- The Supreme Court in Jagjit Singh versus State of Haryana (2006) highlighted the similar allegations about the confidence on the role of Speaker in the matters of impartiality.
- In Kihoto Hollohan case (1992), one of the judges observed that the suspicion of bias on the Speaker’s role could not be ruled out as his/her election and tenure depends on the majority will of the House (or specifically of the ruling party).
- Also in the recent case of Manipur Legislative Assembly (2020), the Supreme Court questioned, “why a Speaker- who is a member of a particular political party and an insider in the House, should be the sole and final arbiter in the cases of disqualification of a political defector.”
- Hence, there are structural issues regarding the manner of appointment of the Speaker and her tenure in office which need urgent redressal.
- Adopting Global Practices: In Britain, the Speaker is strictly a non-party person. There is a convention that the Speaker has to resign from his party and remain politically neutral. Also, once elected remains in office until retirement, even though the majority may change.
- Currently, this Convention is not fully established in India where the Speaker does not resign from the membership of the party on his/her election to the office.
- Hence, this mechanism can be adopted whereby Speakers need to renounce all political affiliations, membership and activity once they have been elected to the office.
- Time-frame for Adjudication: Currently, there is no time frame to adjudicate cases of disqualifications of members of the House.
- However, to contain this liberty of Speaker, the Court in the recent judgment held that, “unless there are any exceptional circumstances, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months.”
- Impartiality, fairness and autonomy in decision-making are the hallmarks of a robust institution. It is the freedom from interference and pressures which provide the necessary atmosphere where one can work with an absolute commitment to the cause of neutrality (as a Constitutional value).
- At a time when India’s rank has fallen in the latest Democracy Index (2019), it is expected out of Parliament to take steps to revamp and strengthen the institution of the Speaker.