Anti defection law – Speaker’s powers in a rebellion

Context: While granting interim relief to rebel MLAs of the Shiv Sena, the Supreme Court made an unusual judicial intervention that raises questions on the powers of the Speaker under the Tenth Schedule of the Constitution.

• The Speaker’s powers under the Tenth Schedule have been previously upheld by the Supreme Court itself; the court has allowed judicial review only once the Speaker has made a decision, and has ruled out interference with the process.

What does the interim order say?

• The interim order grants more time to the rebel MLAs to reply to the disqualification notice served on them. It seeks affidavits from them, and also a counter-affidavit from the Deputy Speaker on his removal as demanded by the rebels.
• In granting more time, the Supreme Court has essentially delayed the disqualification proceedings, which would have a direct impact on a trust vote in the Assembly

What does the Tenth Schedule say?

• The Tenth Schedule gives the Speaker of the House the power to disqualify legislators who ‘defect’ from the party.
• In the landmark case Kihoto Hollohan versus Zachillhu in 1992, the Supreme Court upheld the power vested in the Speaker and said that only the final order of the Speaker will be subject to judicial review.
• Courts have refrained from interfering with the process itself.
• However, a 2016 ruling of a Constitution Bench of the Supreme Court in Nabam Rebia ruling has shifted the balance on the powers of the Speaker.

What was the Nabam Rebia ruling?

• The Supreme Court held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings, if a no-confidence motion against him is pending.
• If a Speaker truly and rightfully enjoys support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature, repose in him.
• This ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated — effectively tying the hands of the Speaker.

Have legislators used this legal route?

• Yes, since 2016, this legal route has a been a familiar playbook for legislators cutting across states and political affiliations.

How can the Speaker be removed?

• Under Article 179 of the Constitution, a Speaker can be removed by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”.
• The process begins with notice of at least 14 days.
• In the 2016 Nabam Rebia ruling, the Supreme Court interpreted Article 179, specifically the term “all the then members of the Assembly”, to mean the composition of the house at the date/time of giving the notice for the removal of the Speaker.
• This interpretation would mean that the composition of the Assembly cannot be changed from the date of issuing of a notice of the removal of the Speaker, and therefore the Speaker cannot make any decisions under the Tenth Schedule to change the composition of the House until the question of his removal is settled.
• The Supreme Court’s reasoning in barring the Speaker from acting under the Tenth Schedule when a notice for his own removal is pending, is to ensure that the Speaker who disqualifies legislators must enjoy the confidence of the Assembly.

Source: Indian Express

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