Speaker’s role in disqualification

Indian Polity

Topic: General Studies 2:

• Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these. 


Speaker’s role in disqualification

Context:

The Supreme Court’s latest decision on the Speaker as the adjudicating authority under the anti-defection law.

About Anti-Defection Law

• The anti-defection law is contained in the 10th Schedule of the Constitution and was enacted by Parliament Constitution (52nd Amendment) Act, 1985. 
• Legislators used to change parties frequently bringing in Political Instability and was also considered as betraying the mandate of voters (who voted for the legislator considering his political party)
• The purpose of 10th Schedule is to curb political defection by the legislators. There are two grounds on which a member of a legislature can be disqualified.
  • One, if the member voluntarily gives up the membership of the party, he shall be disqualified.
  • Second, if a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified.
• However, there is an exception – The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.
• The Presiding officer of the House (Speaker/Chairman) is the adjudicating authority with regard to disqualification of legislators under the Tenth Schedule

Criticism of the anti-defection Law

• Curbs the freedom of speech & expression of law makers
• Tyranny of Political Parties: Legislators have to abide by the line taken by Political parties even it is against their own stand or against the interest of her constituency
• Role of the Speaker is biased: Speaker who is a member of a political party is often not neutral and comes under the influence of his political party instead of deciding the cases on merit
• Delay in decision making: several presiding officers have allowed defectors to bolster the strength of ruling parties and even be sworn in Ministers by merely refraining from adjudicating on complaints against them

Supreme Court Judgements in Kihoto Hollohan (1992) case: 

• Five Judge Bench of SC upheld the validity of the Constitution’s Tenth Schedule, or the anti-defection law. 
• It was also held in this case that a Speaker or a Chairman, acting Tenth Schedule, is a Tribunal and thus his discretionary powers were protected by Constitution.(dissenting minority view by Justice JS Verma who questioned the fairness of speaker in adjudication)
• This verdict had also made the Speaker’s order subject to judicial review on limited grounds and that mere procedural infirmities could not prompt judicial intervention.
• It was also held that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman. 

Recent Supreme Court judgement on the role of Speaker

Background: The top court was hearing the appeal of Congress leader against the Manipur High Court order. The High had refused to direct Speaker to decide on disqualification of another Congress legislator who had defected to BJP & made minister.

Following are the pronouncements of the SC in this case

1. The Speakers should decide Tenth Schedule disqualifications within a reasonable period. Unless there were “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months (This question on time period raised by two judge bench of Supreme Court in S.A. Sampath Kumar vs. Kale Yadaiah, 2016 case)
2. Asked the Parliament to consider having an independent and permanent body to decide disqualification petition. Given the fact that a Speaker belongs to a particular political party, the Court mooted this idea, which requires an amendment to the constitution.
   1. Also, Speaker wasn’t adjudicating election disputes or disqualification of members under Articles 103/ 192/ 329 for good reason, because their fairness could be suspected.

Way Forward:

• The Constitution is called a living document because of its ability to grow and change with time and circumstances. Clearly, the Tenth Schedule has fallen short in fulfilling its objective of preventing defections and needs a relook.
• Parliament must fix this flaw and institute a tribunal recognising the significance of anti-defection provisions in upholding the sanctity of Parliament.

Connecting the dots

• Speakers role in deciding whether the bill is money bill or not
• Britain’s model of Speaker’s post