Examine powers of Speakers, SC asks Parliament

Interestingly, the judgment comes at a time when a discussion is already underway among presiding officers of legislatures on how to secure the legislative Speaker’s “dignity” in the matters related to the defection of lawmakers.

The wisdom of the legislature in entrusting Speakers (of the state assembly or parliament) with the responsibility of ruling on the disqualification of lawmakers who defect (shift parties) needs to be revisited, the Supreme Court ruled on Tuesday in a case on defection of a Congress MLA from Manipur.

The parliament building during the Monsoon session at Parliament House in New Delhi.(Raj K Raj/HT PHOTO)

Interestingly, the judgment comes at a time when a discussion is already underway among presiding officers of legislatures on how to secure the legislative Speaker’s “dignity” in the matters related to the defection of lawmakers. As first reported by HT, in two conferences in as many months, many presiding officers have expressed the view that their role vis-à-vis the tenth schedule should be limited and other mechanisms must be evolved to decide cases of defection. The tenth schedule deals with the anti-defection law.

A top functionary of the Lok Sabha said on condition of anonymity that a panel has already been constituted by Lok Sabha Speaker Om Birla on the issue and that many assembly Speakers have voluntarily sought a reduction of their power as far as the tenth schedule is concerned.

The judgment of the apex court is likely to add to that discussion. The judgment was rendered by a bench of justices Rohinton Nariman, Aniruddha Bose and V Ramasubramanian. The bench urged Parliament to rethink whether disqualification petitions ought to be entrusted to a Speaker under the tenth schedule of the Constitution.

This is considering the fact that the Speaker continues to belong to a particular political party.

“It is time that Parliament has 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”, the judgment said. Paragraph 6 of the tenth schedule of the Constitution provides that questions relating to disqualification of member of the house shall be referred to the Speaker whose decision on the same will be final.

The court recommended an amendment to the tenth schedule by substituting speaker with a permanent tribunal headed by a retired Supreme Court judge or a retired chief justice of a high court or some other independent mechanism as the arbiter of such disputes. Such a measure, the court held, will ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the tenth schedule, which the court said is vital to the proper functioning of the democracy.

One of the changes suggested to the anti-defection law during the meeting of presiding officers of Indian Parliament and assemblies in Dehradun last month, was to allow party presidents or floor leaders of different parties to decide on anti-defection cases. Several participants voiced their concerns that the image of speakers was taking a beating. Lok Sabha Speaker Om Birla said at that meeting: “The way people are losing faith in democratic institutions and the way fingers are pointed at presiding officers of legislative bodies, it is a matter of concern. There is a need to amend the law to uphold the prestige of the institution of speaker.”

Former Lok Sabha secretary TK Vishwanathan said, “The anti-defection law has put the entire onus on the Speaker in the matters related to disqualification of members of the Legislative House. Even if the Speaker is impartial, he faces undue pressure and criticism. This is one thing (the power to disqualify) the Speakers can do without. Also, there is no need for a Supreme Court direction. Parliament is supreme and it can take a decision on its own.”

The judgment came in a dispute arising from the defection of a Congress lawmaker Thounaojam Shyamkumar to the N Biren Singh-led Bharatiya Janata Party government after state elections in March 2017.

The Congress, the single-largest party with 28 seats, was three seats short of the majority mark in the 60-seat assembly. The BJP, with 21 seats, moved to stake claim along with the Naga People’s Front, Nationalist People’s Party and the Lok Janshakti Party (LJP). Congress lawmaker Shyamkumar extended support to the BJP, helping Singh form a coalition government. Shyamkumar was made a minister of town planning, forest and environment in the BJP government.

At least 13 petitions were filed by Congress leaders before the Speaker of Manipur legislative assembly, Y Khemchand Singh, seeking Shyamkumar’s disqualification but the Speaker did not act on the complaints. Two Congress MLAs, Keisham Meghachandra and Md Fajur Rahim, next approached the Manipur high court. The high court noted the seriousness of the issue but declined to grant any relief on the ground that the issue regarding powers of high court to interfere with the Speaker’s discretion is pending before Supreme Court.

Keisham Meghachandra Singh then moved the Supreme Court in appeal. The Manipur Speaker argued before the SC that the issue regarding whether high courts can direct Speakers to decide a disqualification petitions within a particular time frame was referred to a constitution bench of the Supreme Court in 2015 in the case of SA Sampath Kumar v. Kale Yadaiah. Hence, he submitted, the decision in the Manipur case should be deferred till the constitution bench decides the issue.

However, the SC turned down this argument holding that the issue was conclusively settled by the top court in a 2007 judgment of Rajendra Singh Rana v. Swami Prasad Maurya in which the court ruled that the HC can direct Speakers to rule on disqualification petitions if they do not do this within a reasonable time. The apex court on Tuesday directed the Speaker of the Manipur assembly to rule on the disqualification pleas pending before him within four weeks. The court also made it clear that if the Speaker does not take a decision within four weeks, it will be open to any party to apply to the Supreme Court for further relief.