Office of the Speaker: An Anathema to the Doctrine of Constitutional Trust
Updated: Oct 19, 2020
- Kartik Agarwal and Jayesh Kumar Singh*
The Speaker of a legislative assembly holds a position of constitutional trust and has been empowered with a wide set of powers. An adequate system of checks and balances on such powers is one of the hallmarks of democracy. However, there have been multiple instances of failure where the need for a system of checks and balances on the powers of a Speaker has been felt. The Speaker is selected by the party in majority and is expected to sever all ties with his political party and act as a non-partisan figure. However, in India, the office of the Speaker has always been embroiled in controversy owing to the biased and partisan behaviour of the Speaker. Earlier this year, the Speakers in the states of Madhya Pradesh [‘M.P.’] and Manipur were involved in a controversy for showcasing biased behaviour towards their party. The situation worsened to the extent that the Supreme Court recommended that the Parliament formulate a Tribunal, in lieu of the Speaker, to decide the anti-defection matters. Through this post, we aim to analyse the powers vested in a Speaker, the inherent issues with such powers, and whether the abovementioned recommendation by the Court is a viable solution to the problem in hand.
I. The Office of the Speaker and its Powers and Responsibilities
A. Constitutional Values Enshrined in the Office of the Speaker
The equivocal demarcation of the powers of the Speaker and resultantly, the recommendations by the Supreme Court, remind one of Dr. Ambedkar’s words in the Constitutional Assembly Debates, where he pointed out that “no matter how well or bad a Constitution may be, it is the role and ideals of its implementers which needs to be clearly spelled out for a nation to thrive”. The position of the Speaker was inherited by India from the British. The Speaker represents the House and symbolises its dignity and power. Thus, the Supreme Court in Kihoto Hollohan v Zachillhu [‘Kihoto Hollohan’] had held that the office of a Speaker is an embodiment of impartiality and propriety and even if there have been instances of distrust by some of the Speakers, the office of the Speaker shall not be met with distrust. The importance of the Speaker’s position can be seen from the fact that the Speaker stands next to the position of the President, Vice-President, and Prime Minister of India in the order of precedence. This is further demonstrated by the remarks made by Pt. Jawahar Lal Nehru on the position of the Speaker:
The speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty. Therefore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.
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 Speaker has the duty to see that business of the House is carried out in a decorous and disciplined manner. This functioning requires him to have unimpeachable faith in the intrinsic marrows of the Constitution, constitutionalism and, “Rule of Law”.
In the last few decades, the office of the Speaker has gone through fundamental changes, and the responsibilities of the Speaker have increased manifold with these changes. These changes have been discussed in the next section.
B. The Speaker’s role in Adjudicating Disqualifications and Resignations
Hindering the political stability across the nation, frequent defections by the members of political parties prompted the Rajiv Gandhi government to introduce the anti-defection law in 1985. It was introduced under Schedule 10 of the Constitution with the objective of preventing defections and reinstating political stability in the country. It laid down two conditions for disqualification of a member: first, when a member voluntarily gives up the membership of his political party, and second, when he flouts the party’s directives. The law entrusts the Speaker with high discretionary powers, and prohibits any judicial intervention under Articles 122 and 212 of the Constitution by granting finality to their decisions.
This raised some serious questions, such as whether the decisions of the Speaker are immune from judicial review, and whether investiture of such adjudicatory power with the Speaker is valid, considering that there is a reasonable likelihood of bias. Clarifying this, the Supreme Court in Kihoto Hollohan held that the decisions of the Speaker may be subject to judicial review, if their decision suffers from jurisdictional errors, i.e., violations of Constitutional mandates, mala fide, non-compliance with rules of natural justice, and perversity. Importantly however, the Court discarded the contention of a likelihood of bias of the Speaker by observing that it would be inappropriate to express distrust in the office of the Speaker just because some Speakers have digressed from their functions and disrespected the high office of Speaker.
We believe that this approach is problematic. Justices L.M. Sharma and J.S. Verma had, in their minority opinion, expressed doubt over the impartiality of the Speaker and stated that:
The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of Law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are : Nemo judex in cause sua – ‘A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and ‘it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.
After the 33rd constitutional amendment, an additional responsibility was entrusted to the Speaker. The Speaker would have to ‘accept’ the resignation of the members for such resignations to come into effect. Under Article 190, the Speaker has to look for two aspects while deciding the resignation, which are: “voluntariness” and “genuineness”. The meaning of these two terms was explored by the Supreme Court in 2020, while deciding upon the Karnataka legislative assembly controversy. The Court held that the term “genuine” means that the resignation application shall always come from the concerned person and not from any forged third party, and “voluntariness” means that the resignation shall not be based on any coercion, threat, or force. However, in this case, the Court did not prescribe any deadline for deciding the resignation or disqualification, and no such deadline is prescribed in the Constitution either. This has left room for the Speaker to misuse their discretion and is best evidenced by the most recent controversies regarding the office of the Speaker - in the state of Manipur and M.P.
II. Existing Reality and the Questions Raised – Looking at Manipur and M.P.
In March 2020, twenty-two MLAs in M.P. resigned from the Congress government. Since the government enjoyed a slender majority, an acceptance of the resignations tendered by the 22 MLAs would have resulted in a collapse of the government. Precluding the same, the Speaker delayed the acceptance of resignations and adjourned the assembly for ten days in light of the Coronavirus outbreak. When the matter reached the Supreme Court, it directed the Speaker to immediately conduct a floor test and decide the majority of the existing government. Similarly, in 2017, a Congress MLA in Manipur defected to BJP and helped it to successfully form the government. Consequently, disqualification proceedings were initiated against him. However, the Speaker refrained from deciding the petition for almost three years till the Supreme Court interfered in the matter and banned the MLA from entering the assembly and stripped him of his post. In both these instances, the Speaker failed to act as an impartial and neutral administrator, and instead, merely served as a party-puppet.
Highlighting this and elucidating on the need for neutrality and independence, the Supreme Court in Shrimanth Balasaheb v Hon’ble Speaker [‘Karnataka Assembly Case’] recommended to the Parliament that it strengthen the Tenth Schedule by ensuring stricter checks on the neutrality of the Speaker.
As discussed in the previous section, the Indian Constitution does not specify any deadline for the Speaker to decide on the resignation or disqualification petition, and leaves it to their discretion. This discretionary power has been grossly exploited by the Speakers in various cases, including in the states of Karnataka, Manipur, and M.P. This question was again raised before the Supreme Court in the recent case of Keisham Meghachandra Singh v The Hon’ble Speaker [‘Manipur’s case’] where the Court had laid down a maximum period of three months for the Speaker to decide on a disqualification petition.
We believe that this is a step in the right direction. This is because Article 190 and the Tenth Schedule of the Constitution leave very little space for the Speaker to exercise his discretion in the substantive aspect of the power to accept/reject the resignation or disqualification petition. It specifies the twin test of “genuineness” and “voluntariness” for resignation and the sole test of “voluntariness” for disqualification. However, the main concern for the Court has always been the procedural aspect of the Speaker’s powers which results in unnecessary delay in adjudication of such disputes. While the decision to impose a deadline is laudable, the Court had missed an opportunity to impose a deadline for deciding the resignation application as well. Lack of a deadline for deciding the resignation application could jeopardise the democratic values in a State. This is because, for instance, the acceptance of the resignations by the MLAs in M.P. would have resulted in a collapse of the Congress government. However, the Speaker adjourned the House for another ten days, giving the excuse of the pandemic, and allowed the minority government to rule the State. Thus, it is imperative that a few steps be taken to curtail the discretion enjoyed by the Speaker, which has been discussed in next section.
III. Suggestions and the Way Forward
India inherited the post of the Speaker from Britain, where the Speaker has to resign from his political party after being elected as the Speaker. However, in India, the Speaker continues to enjoy the membership of his party even after being elected as a Speaker. In Manipur’s case, the Court had recommended that the Parliament substitute the Speaker with a separate tribunal for adjudicating the disputes under the Tenth Schedule. This tribunal is envisaged to be headed by a Supreme Court or a High Court judge to ensure impartiality.
We believe that this step, though progressive, will be insufficient to resolve the grave problem of partiality of the Speakers. This is because the Speaker is not only entrusted with the sole duty of adjudicating anti-defection matters, but is also responsible for other important functions such as presiding over the meetings of the House, fixing the agenda of the House, accepting the resignations of the members, and conducting floor tests. The Supreme Court held in the S.R. Bommai case that whenever a government loses the confidence of the House, conducting a floor test is the only way to determine the matter. However, in the Madhya Pradesh case, the Speaker has defied the direction of the Governor to conduct the floor test and has attempted to bypass this mandate to favour his political party. Thus, the formulation of a separate tribunal for adjudicating disputes under the Tenth Schedule may ensure impartiality in assessing disqualifications, but the possibility of bias will continue to hover over other acts of the Speaker.
Thus, we believe that the gap can be addressed by restricting the discretionary powers of the Speaker at all levels and not merely formulating a separate tribunal. Such restrictions may include imposing shorter deadlines to deal with the cases of resignation or disqualification or floor tests, and laying down a set of guidelines for exercising other powers of the Speaker.
The guidelines may include, inter alia, conducting floor tests immediately after the government loses confidence of the House, non-deferment of the floor test even when the decision on acceptance of resignation remains pending before the Speaker, etc. However, the State should be cautious in crafting the contours of such restrictions. As mentioned above, the Supreme Court has imposed a deadline of three months for adjudicating disqualification petitions, but giving such a long period for adjudication of disqualifications may allow the minority government to rule the state in the meantime. Such a rule would be unreasonable and against constitutional ethics.
Today, the doubts expressed in the dissenting opinion in Kihoto Hollohan have become very pertinent. We believe that it is high time for the State to overhaul the office of the Speaker by curtailing its discretionary power. It is time to ensure impartiality and transparency in the office of the Speaker by imposing a deadline and a set of guidelines required to exercise all the entrusted powers. It is only after such changes are put in place that the revered office of the Speaker can truly be viewed with the deepest regard and can be called the symbol of India’s freedom and liberty as envisaged by Pt. Jawaharlal Nehru.
*Kartik Agarwal and Jayesh Kumar Singh are 3rd year students at National Law University, Jodhpur. They take a keen interest in Constitutional Law and Public Policy and actively contribute to its scholarships.
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