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Judicial Review Of Speaker's Scale Of Discretionary Justice And The Defection Disqualifications: A Praxical Narration

Himangshu Rathee
13 Feb 2022 2:35 PM GMT
Judicial Review Of Speakers Scale Of Discretionary Justice And The Defection Disqualifications: A Praxical Narration
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The Supreme Court off lately has been adjudicating on defection-based disqualification petitions from different state legislative assemblies. In process, the court has reviewed the limits of speaker's discretion. The aim of this piece is to map the judicial intervention in speaker's discretion in anti-defection proceedings, and analyse the constitutional position and proprietary of...

The Supreme Court off lately has been adjudicating on defection-based disqualification petitions from different state legislative assemblies. In process, the court has reviewed the limits of speaker's discretion. The aim of this piece is to map the judicial intervention in speaker's discretion in anti-defection proceedings, and analyse the constitutional position and proprietary of the Speaker's position qua as an impartial adjudicator. For reading convenience the column is divided in the three following parts. The first part outlines the role expected role of speaker in a parliamentary democracy. The second section delves into the judicial hand-holding of speaker's discretion, and the last part delivers some reflects on assumptions about speaker's constitutional role.

Speakers Role In Parliamentary Democracy:

The fundamental challenge to speaker as the sole arbiter of defection induced defections was introduced as a part of the challenge to the constitutionality of tenth schedule in Kihoto Hollohan case[1]. It was contended by the petitioners before the Supreme Court that electoral disputes resolution machinery should be independent, fair, and impartial, as a necessary incident of democracy. A provision vesting power of adjudication in Speaker or the Chairman, who in the Indian Parliamentary System are nominees of the political parties with an optional resignation of their party affiliations is violative of the mentioned mandate. This contention is fueled by the constitutional fact and provision that the speaker or chairman 'enter and hold' their offices as such on the basis of parliamentary majority support.[2] There was a split verdict on the case, in general, and on this point, in particular. The distinguishing factor of the majority, and dissenting judgments was the assumptions about the speaker's constitutional role.

Both the majority, and dissenting judgments used their own set of authorities to assail the Constitutional role of the speaker, and relying their judgment on those assumptions.

  • Majority Judgment and Speaker's Better Side

For majority, Justice MN Venkatachaliah on his behalf, and on behalf Justice Jayachandra Reddy, and Justice Agrawal authored the judgment. The majority repelled the stated challenge to this contention on two grounds. First, per majority, the parliament could have amended Articles 102(1), and 191(1) by adding defection as ground, and thereby authorizing President or the governor to act according to the opinion of the Election Commission of India. But the tenth schedule schemed a different experiment on particular ground of defection. The majority didn't dig further on the correctness of this breakage of pattern on decisional authority on legislative disqualifications. Though it did attempt to justify the speaker as an impartial authority as the second line of reasoning.

It was held that the office of Speaker enjoys a high status and esteem in Parliamentary democracy. The majority opined, "The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character."

The court quoted several sources, and interestingly two of the sources were opinions of the political leaders of the then ruling congress, G. Mavalankar, and Pandit Nehru to bolden the impartiality of the speaker. Other authorities used on the moral bearing deserve a mention in full. The court reproduced verbatim from, Erskine:

"The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality. As a symbol of his authority, he is accompanied by the Royal Mace which is borne before him when entering and leaving the chamber and upon state occasions by the Sergeant at Arms attending the House of commons, and is placed upon the table when he is in the chair. In debate all speeches are addressed to him and he calls upon Members to speak - a choice which is not open to dispute. When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet. Reflections upon the character or actions of the Speaker may be punished as breaches of privilege. His action cannot be criticized incidentally in debate or upon any form of proceeding except a substantive motion. His authority in the chair is fortified by many special powers which are referred to below. Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised...."

The imagery of the speaker as per the majority is of a person morally incorruptible, and sternly impartial. This moral argument casting a halo in speaker with time will be denuded as we shall see in the next part. Tersely put, one cannot question the moral integrity, character, and impartiality of the speaker.

  • Dissenting Judgment and Misgivings of the Speaker's Constitutional Space

Conversely, the dissenting judgment authored by Justice JS verma on his behalf, and Justice LM Sharma. The minority dented the moral halo of the speaker by a structural argument. The minority judgment opined that the framers of the Constitution deliberately sought to keep out the disqualification of members outside the authority of the speaker despite his high moral aura. It was stated that the tenure of the speaker is dependent on the will of the majority, and therefore biasness in disqualification proceedings is a sitting concern. Owing to this particular reason, a different constitutional scheme was provided by the framers for disqualification of members. The minority further sustained its reasoning by comparing the removal process of a judge. A judge of higher judiciary is impeached by Parliament, an authority outside the Parliament. Likewise, a member is disqualified by a set up positioned outside the Parliament as envisaged by Articles 103, and 192.[3] The underlying principle is prevention of biasness, and the tenth schedule by making the speaker sole arbiter of defection-disqualification reverses the trend, and strikes a discordant note with the basic structure of the Constitution.[4]

The bipolarized stance of the moral rightness, and apprehension of bias as laid by the majority and dissenting judgments respectively in Kihoto Hollhan case demands scrutiny in the light of current developments. However, the Supreme Court was unanimous in preserving the power of judicial review of speaker's decision. This preservation was on the grounds of non-compliance with enumerated process in Article 368(2), and as also judicial review is part of the basic structure of the Constitution, and accordingly paragraph 7 of the tenth scheduled that barred court's jurisdiction in anti-defection proceedings was rendered unconstitutional.[5] The saving of judicial review back in day is now permitting the Constitutional courts to develop a judicial manual through adjudicatory process for exercise of speaker's discretion.

Judicial Review Of Speaker's Discretion In Defection-Disqualifications:

In Kihoto Hollohan case itself the court enumerated three instances meriting judicial interference, mala fides in exercise of power, violations of principles of natural justice, or committed error of law in exercise of power.[6] The speaker in adjudicatory capacity acts in the capacity of a tribunal since his decision cannot be equated with that of the house. His decision is not subject to the approval of the house.[7]

The Court has intermittently and unfortunately been served with the opportunity to examine the prudence of speaker's discretion under the tenth schedule. In the absence of express limitations on speaker's power under the tenth schedule, the case law body depicts that the speakers across the states have tried to test the outer limits of the powers which were contained by the Court on a case-to-case basis. The discretionary limits of the speaker, in its praxis can be studied in distinct domains. It is difficult to be exhaustive here, but sufficient is to be illustrative.

  • Fear the contempt Mr. Speaker:

In case the speaker does not implement court's order, contempt action can be initiated against him.[8]

  • Speaker's adjudication under tenth schedule is a point of no-return:

A new speaker assuming the office can neither review the disqualification orders passed by the previous speaker nor his own orders. The remedy against disqualification orders on the grounds of defection lies with the Constitutional Courts.[9]

  • Unfixed Standard of Judicial Review of Speaker's Discretion:

The court has hitherto not fixated the specificates of the level of permissible degree of judicial scrutiny. In Mayawati v. Markandeya Chand[10], twelve MLAs from BSP voted in favour of Sh. Kalyan Singh in a motion of confidence moved against the government, which in turn was against the direction of the chief whip, Mayawati. Filled with aghast, she petitioned before the speaker of the house for disqualification of the twelve MLAs under the tenth schedule. The speaker held against her, and did not disqualify the MLAs. Consequently, she petitioned the Supreme Court under Article 136 questioning the decision of the speaker on the grounds of perversity. The court laid down the degree of judicial scrutiny would be minimal by applying wednesbury principle of reasonableness. As per that, finding has to be so unreasonable or so unconscionable that no tribunal should have arrived at it on the given materials to qualify for judicial intervention. The court in this case found existence of sufficient material to justify speaker's decision and the special leave was dismissed. Applying the wednesbury principle (at least in theory) would lead to lesser judicial intervention.

In Jagjit Singh v. State of Haryana[11], petitioners were elected as independent members to Haryana Legislative Assembly. They were disqualified by the speaker for defecting to congress party. The speaker so decided on the basis of admission of the petitioners in a TV interview, presence of petitioners in the congress legislature party, and signatures of the petitioners on the congress party register. The petitioners pressed on for cross-examination of person who produced had obtained the videos from the TV channels. On denial of this opportunity, petitioners raised the claim of violation of principles of natural justice. The court dismissed the petitions holding that the sufficient time was given to the petitioners to file a reply. Further, the principles of natural justice may be moulded in anti-defection proceedings depending on the facts and circumstances of the case. The court held, "The question to be asked in the ultimate analysis would be whether the person aggrieved was given a fair deal by the authority or not? Could a reasonable person, under the circumstances in which Tribunal was placed, pass such an order? Answer to these questions would determine the fate of the case". The court may have relaxed the applicability of principles of natural justice in this case, and inadvertently laid reasonable man standard for review of speaker's decision without factoring the dictum of Mayawati's case in the verdict. The difference is real. Under the wednesbury principle no tribunal should have arrived on the verdict given the materials, whereas under the reasonable man standard the degree of review intensifies. For instance, in the current case (Jagjit Singh) case the court not only examined the sufficiency of material but also questioned the route of non-objection to the relevant video recordings by the petitioners. The entire episode was approved as a delay tactic till the Rajya Sabha elections by the court. Accordingly, the petitions were dismissed.

One really cannot fixate the real standard of judicial review of speaker's discretion since Mayawati and Jagjit Singh are both three judge bench cases.

In Rajendra Singh Rana[12], there were two batch of petitions pending in the row before the speaker. The first set of petitions appertain to disqualification of 13 MLAs of the BSP under the tenth schedule, and followed by another batch of 37 MLAs (claiming to represent 40 MLAs) elected on BSP tickers for the recognition of them as a split from BSP. The latter claim though later in point of time was accepted by the speaker by recognizing a split. The decision of the speaker was set aside by the Supreme Court on the ground that the speaker cannot exercise his discretion only when disqualification proceedings are invoked under the tenth schedule. It does not apply for recognition of splits as such. A cause of action in the nature of defection must be present before the speaker.

Speaker's use of discretion under the tenth schedule again became the hot breads in Balchandra L. Jarkiholi v. B.S. Yediyurappa[13], the court clearly resorted to intensified degree of judicial review, far aloof from the wednesbury standard. The court not only tagged the hot haste disposal of defection disqualification petitions as improper amounting to denial of natural justice. The court was of the firm opinion that mere non-denial of averments made against the disqualified MLAs would not amount to admission, and a proper opportunity should have been presented to them. Not only that, the court made judicial recording of partisan behavior of the speaker in dealing with the matter in exercise of his discretion. The orders of the speaker were on extraneous considerations, the court observed.

The Supreme Court's approach on pressing of natural justice as a rigid requirement, and applying the classical civil process understanding to it was in contrast to the previous non-rigid view on the same matter in the Jagjit Singh case[14].

  • Speaker save your place, and defection decisions later:

The question of speaker's discretion to disqualify members under the whip of tenth schedule whilst a resolution of his removal is under consideration was answered by the Supreme Court.

In Nabam Rebia, and Bamang Felix[15], Justice Dipak Misra observed on the constitutional position of the speaker, and strengthened the moral argument stated in Kihoto Hollohan: "one, after the Constitution came into force, as is evident from the constitutional scheme of ours, the Speaker enjoys high constitutional status and the Constitution reposes immense faith in him. For this reason alone, the Speaker is expected to have a sense of elevated independence, impeccable objectivity and irreproachable fairness, and above all absolute impartiality. This expectation is the constitutional warrant; not a fond hope and expectation of any individual or group." The context of this salutary narration is equally pertinent. The resolution for removal of the speaker was under sway. The speaker has a constitutionally prescribed fourteen days period to respond to the resolution. Also, in the case were defection-disqualification proceedings pending before the speaker. The question remained, Can the speaker during the said period of fourteen days disqualify members under the tenth schedule in exercise of his discretion? After examining the Constitutional Scheme, the Court held that Article 173 (c) required 'all the then members' to be present and vote, therefore, the continuance of the person in his capacity as speaker takes precedence, and thereafter the disqualification petitions can be accordingly be disposed off. The fulcrum for our purposes is the speaker cannot exercise his enormous power under the tenth schedule if his own position as a speaker is under the consideration by the legislative assembly. Acting against would amount to breach of "Constitutional Trust"[16].

  • Be in limits Mr. Speaker:

The discretionary power on quantum of sentence, and the time limit within which the petitions must be decided was broached up before the court. Speaker's sentencing discretion under the tenth schedule was on tenterhooks was put to test in Shrimanth Balasaheb[17], whereby the court spelt it out clearly on duration of disqualification. The phraseology of the anti-defection schedule is silent on the matter, the court borrowed interpretive assistance from Article 191. Under Article 191(1) a member is disqualified "from being chosen as" or "for being" a member as such. In contrast under Article 191(2), a member is not barred "from being chosen as" a member subsequently. The court held that the nature disqualification incurred under the mentioned clauses is qualitatively and constitutionally different. A speaker may well disqualify by virtue of the tenth schedule, but cannot prescribe a period for such disqualification. A defection-disqualified MLA cannot be prevented from contesting a by- or fresh-elections.

Often, and frequent the speakers use their discretion to delay the decision of anti-defection petitions to suit certain ulterior political motives and objects. To remedy the malaise clogging the Parliamentary democracy, the Supreme Court grabbed the bull by its horns in Keishram Meghachandra Singh[18], where the court fixed the time limit as three months from the date on which the petition is filed before the speaker for deciding any alleged infractions of the tenth schedule. As per the ruling, a speaker cannot in exercise of his discretion prolong the decision of the petition for more than three months. Exercising his discretion against the ruling can invite contempt of court action against him.

  • Resignation and Nomination are a bad-back up plan:

Typically, suiting the political environment, the speaker used to delay the decision on genuineness of the resignation of the legislator as he is constitutionally bound to do so under proviso to Article 190 (3) or Article 101 (3), as the case may be. Accordingly, defection proceedings were delayed on the ground that first genuineness of the resignation is to be adjudicated upon. This permitted the government to continue since the legislators remained members of the same legislative party, and preventing or delaying the failure of the constitutional machinery in the state. Alternative misuse is equally true. Legislators by 'voluntarily giving up the membership of the party' for their own political mileage resorted to tendering resignations after committing the acts inviting defection proceedings but before the defection proceedings were initiated.

In Rajendra Singh Rana[19], the court held that decision as to voluntariness of the resignation may taken at a later point of time but the question of defection of the legislator cannot be postponed. Further in Shrimanth Balasaheb[20], the court made it categoric that resignation of legislator will not efface impact of defection. The speaker must now independently address the issue of defection since it dates back to the action inviting defection petition, and not the date of presentation of petition for defection proceedings before the speaker. Needless to emphasize the proceedings of defection against the legislator must be completed within three months.[21] Further to make tangential point, if a legislator is disqualified, he cannot enter the legislature as a nominated member till the expiry of the term of the assembly or till he gets elected. Nomination route of re-entry is shut by the Court.[22] The problem here is that resignations are misused as a tool to reduce leading to the fall of the house and possible installation of a new house with the party that won by-election. In fact, en-masse disqualifications lead to the same fate. A clear case on point is Karnataka, where the disqualified defectors contested the by-elections and won the seats from their respective constituencies on the BJP ticket.[23] It makes one wonder whether anti-defection law remain relevant today. Does the tenth schedule ensure governance stability, as was its object and reason for upholding its constitutionality? Or the Speaker must be vested with better power or a new tribunal should take charge of adjudicating disqualification proceedings. The political horns appear to have punctured the Constitutional halo of preserving governmental stability.

With these constitutional boundaries drawn around the tenth schedule, the power of the speaker is cannalised to a significant degree even though certain grey areas still exist. The unruly and constitutionally immoral paths resorted to by the speaker is dwindled by the Court's rulings which in effect have fixed the silent leakages in the anti-defection law. Yet the political ploy still remains an anathema to the objective of tenth schedule.

Time To Reorient The Authority Holding Defection Power

The court's judgment play the same harp of Kihoto's[24] moral argument to exalt the position of the speaker, and to remind him of the constitutional duty. The reminder became imperative owing to the politicization of speaker's office. The misgivings of speaker's constitutional behavior expressed in the dissenting opinion of Kihoto[25] appears to be the current trends. It maintains the sanctity of the constitutional process; time is ripe to rekindle the constitutional position of the speaker qua tenth schedule. An authority outside the Parliament is essential to adjudicate defection-defection matters within the fair, and constitutional parameters, and principles. Supreme Court's obiter in Jagjit Singh[26] is telling, and chisels out a compelling case of rethinking the Constitutional position of the speaker. The court noted:

"Undoubtedly, in our constitutional scheme, the Speaker enjoys a pivotal position. The position of the Speaker is and has been held by people of outstanding ability and impartiality. Without meaning any disrespect for any particular Speaker in the country, but only going by some of events of the recent 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. It has been urged that if not checked, it may ultimately affect the high office of the Speaker. Our attention has been drawn to the recommendations made by the National Commission to review the working of the Constitution recommending that the power to decide on the question as to disqualification on ground of defection should vest in the Election Commission instead of the Speaker of the House concerned. Our attention has also been drawn to the views of number of other experts, committees/commissioner to the effect that the power of disqualification as a result of defection need to be exercised in accordance with the opinion of the Election Commission as in the case of decision on question as to disqualification of members provided for in Article 103 and 194(2) of the Constitution" [emphasis supplied]

Time will tell the seriousness assumed by the Parliament to the constitutional headwind of rethinking speaker's position, or the at the bare minimum his discretionary bounds.

The author is an Assistant Professor of Law at the NorthCap University, Gurugram and Ph.D Scholar at National Law University, Delhi.Views are personal

[1] Kihota Hollohon v. Zachilhu and Ors., (1992) 1 SCC 309

[2] Id., Para 24.

[3] Id., Para 181.

[4] Id., Para 182.

[5] Id, Paras 71,76, 77, and 177.

[6] Id, Para 101.

[7] Id, Paras 96, 97 and 111.

[8] Manilal Singh v. Dr. H Borobabu Singh, 1994 Supp (1) SCC 718.

[9] Dr. Kashinath G. Jalmi v. The Speaker, (1993) 2 SCC 703.

[10] (1998) 7 SCC 517.

[11] (2006) 11 SCC 1

[12] Rajendra Singh Rana v. Swami Prasad Maurya, (2007) 4 SCC 270.

[13] (2011) 7 SCC 1.

[14] Supra note 11. Also see, D. Sudhakar (2) & Ors. v. D.N. Jeevaraju & Ors., (2012) 2 SCC 708.

[15]Nabam Rebia, and Bamang Felix v. Deputy Speaker Arunachal Pradesh Legislative Assembly, (2016)8SCC1.

[16] Id., Para 212.

[17] Shrimanth Balasaheb Patil v. Speaker, Karnataka State Legislative Assembly, (2020) 2 SCC 595.-

[18] Keishram Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly, 2020 SCCOnline SC 55. Also see- https://www.livelaw.in/top-stories/speaker-should-decide-on-disqualification-within-3-months-impartial-tribunal-needed-under-10th-schedule-sc-151868; and Shivraj Singh Chouhan v. Speaker, Madhya Pradesh Legislative Assembly, 2020 SCCOnline SC 363.

[19] Supra note 12.

[20] Supra note 17.

[21] Supra note 18.

[22] AH Vishwanath v. The State of Karnataka . (28.01.2021 - SC Order), Petitions for Special Leave to Appeal C Nos. 1226-1228/2021.

[23] India News, 10 defectors who helped BJP gain power in Karnataka rewarded with Cabinet berth, Hindustan Times, https://www.hindustantimes.com/india-news/10-defectors-who-helped-bjp-gain-power-in-karnataka-rewarded-with-cabinet-berth/story-5QQClB0yjqS8jTDXzKQWUK.html.

[24] Supra note 1.

[25] Id.

[26] Supra note 11.

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