The Supreme Court on Tuesday delivered a verdict that could have far-reaching consequences for legislative assemblies.
The court made two important declarations. First, the three-judge bench said that the Speakers of both the state assemblies and the Parliament have to decide on disqualification petitions for members within three months except for the existence of an extraordinary circumstance. It also held that courts have the powers to intervene if the proceedings are delayed.
Second, the court recommended to Parliament that it strongly considers removing the Speakers’ disqualification powers and forming an independent tribunal to take up these petitions. The rationale for this suggestion is that Speakers invariably come from the ruling parties and act in a partisan manner.
While the judgement is a significant intervention in light of repeated controversies over the implementation of the anti-defection laws aimed at halting the movement of house members from one party to another, often after an inducement, is the court justified in asking the Parliament to cut down powers of the Speakers? How will this impact the functioning of India’s legislatures?
The judgement
The judges were ruling on the disqualification of a Congress legislator in Manipur who joined the Bharatiya Janata Party right after the 2017 Assembly elections. The Congress had asked the Manipur Speaker to disqualify him. The Speaker failed to act and kept the petition pending.
The question of Speaker’s powers to disqualify members and the extent to which courts can interfere with it have been a legal minefield, with contrasting judgements delivered in High Courts and Supreme Court. This culminated in a reference to a larger bench in SA Sampath Kumar vs Kale Yadaiah and Others in 2016, when a two-judge bench of the Supreme Court asked for a five-judge bench to settle principles once and for all.
This bench, however, is yet to be formed. Using this pending case as an excuse, many Speakers had continued to claim they have absolute discretion on when and how to decide on a disqualification petition.
In its Tuesday judgement, the three-judge bench led by RF Nariman made a crucial finding. It said that the questions raised in the 2016 reference had already been answered by a five-judge bench in 2007.
The crucial aspect of this judgement is its explanation for when a court could intervene in the disqualification process. The bench said in Rajendra Singh Rana vs Swamy Prasad Maurya, the court, elaborating on a 1992 decision in Kilhoto Hollohan vs Zachillhu and others, held that the Constitution prohibits judicial intervention to protect the legislator from the Speaker’s action before the petition is decided. This means that the court cannot issue an interim order protecting the MLA or the MP from disqualification proceedings. What the law does not prohibit is the court enforcing disqualification proceedings, which are quasi-judicial in character, when they are unnecessarily delayed.
This is how Justice Nariman explained this position of law:
“..what was meant to be outside the pale of judicial review in paragraph 110 of Kihoto Hollohan [precedent case] are quia timet actions in the sense of injunctions to prevent the Speaker from making a decision on the ground of imminent apprehended danger..
Kihoto Hollohan do not, therefore, in any manner, interdict judicial review in aid of the Speaker arriving at a prompt decision as to disqualification under the provisions of the Tenth Schedule.
This means the 2016 reference, during which the bench was not apprised of Rajendra Singh Rana case by the lawyers, was unnecessary. However, it remains to be seen whether petitions are moved against this finding by Justice Nariman and if the formation of a larger bench is insisted upon.
The facts in the Rana case were different. It involved the question of whether a Speaker should take up both the petition of disqualification and a claim of split and merger in a legislative party together. The court intervened because the Speaker segregated the proceedings and delayed the disqualification proceedings alone.
The court in the Rana case ruled that since the Speaker failed to exercise his jurisdiction in deciding the disqualification petitions along with question of split in the legislative party, he lost the immunity enjoyed under Article 212 of the Constitution. This is the article that shields him from judicial scrutiny when he conducts the proceedings in the Assembly.
Thus, the principle that emerges from this ruling, according to Justice Nariman, is that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error “which attracted the jurisdiction of the High Court in exercise of the power of judicial review”.
Time limit imposed
Having cleared the confusion over contrasting past judgements, the three-judge bench, in its verdict on Tuesday, set a time limit of three months for the Speakers to decide on disqualification petitions. It recommended that Parliament should seriously consider taking away disqualification powers from the Speakers. These powers could be given to an independent tribunal headed by a former Supreme Court judge or a former chief justice of a High Court or form “some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially”, the court said.
This is where questions emerge. The problem faced by assemblies is that the Speaker, being a member of the ruling party, often delays disqualification proceedings that could hurt his party’s prospects. This problem was done away with by imposing a time restriction of three months for the Speaker to make a decision.
Even though the court carved out an exception and said that extraordinary circumstances could allow for a delay, the finding that inaction of the Speaker would allow for judicial review settles this dilemma. Given the judgement, whenever a Speaker delays his decision, the opposing parties will have the right to approach the court, where the Speaker may have to explain what the extraordinary circumstance that led to the delay was. If there was none, the court could order the process to be undertaken swiftly.
Thus, having brought the process under the scope of judicial review, the recommendation to Parliament to strip Speakers of disqualification powers looks excessive.
The position of the Speaker inside the House is one of the few areas where federal sovereignty is enjoyed in its fullest. Though the proposed independent tribunal would have former judges as their head, it allows for the Centre to have a say in an area where it had absolutely no say till now. This is because the Centre will be involved in one way or the other in the appointment of those in charge of the tribunal. On the other hand, the Speaker is elected by a majority of members in the House, who in turn are elected by the people.