Speaker’s Crown Of Thorns
By Poonam I Kaushish
Fatigued and bored of the volatile cacophony of accusations flying thick and fast over American billionaire George Soros’s comments on the Adani Hindenburg saga with BJP alleging he wants to “destroy” Indian democracy? Flip attention to the Supreme Court’s Constitution Bench hearing issues arising on the Speaker’s role vis-a-vis disqualification of MLAs under the Anti-Defection Law by him while a notice for his removal is pending.
Recall, in Maharashtra last June Dy Speaker (NCP MLA officiating as Speaker) became a convenient tool of MVA by issuing disqualification notices to 16 Eknath Shinde’s Shiv Sena rebels post him toppling Uddhav Thackeray led MVA Government. In a tit-for-tat the Shinde group served a no-confidence motion against the Speaker.
Both sides moved Supreme Court which held: “Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or Dy Speaker) is pending, would conflict with the express mandate of Article 179(c).”
“A member holding office as Speaker or Dy Speaker may be removed from office by an Assembly resolution passed by a majority of all the then members of the Assembly clearly suggest that all those who were members of the House at the time when such a resolution is moved should have the right to vote on it.” Significantly the Constituent Assembly debates reveal that the phrase ‘all the then members’ was preferred to ‘members present and voting’ as it was precise.
This, the Court averred means even MLAs who are liable to be disqualified have a right to vote on the resolution to remove the Speaker, hence he cannot prevent such members from voting on the resolution by disqualifying them beforehand thereby restricting him from going ahead.
Furthermore it cited its verdict on Nabam Rebia vs. Dy Speaker, Arunachal Pradesh Assembly, where it held that it would be Constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending. It queried how Speaker Rebia preemptively disqualified rebel MLAs on grounds of defection before the Assembly could meet.
The focus of Thackeray’s lawyers was whether the 2016 five-judge Bench ruling in Nabam Rebia case should be reconsidered by a larger Bench. And, if the Rebia verdict was applicable to the Maharashtra case.
Pertinently, in November 2015 when 21 MLAs of Congress’s 47 rebelled and joined hands with 11 BJP legislators in the 60-member House, Arunachal Chief Minister Tuki closed the Assembly gates so rebel Congress-BJP MLAs held an extraordinary session in a community hall and removed Speaker Nabam Rebia who had disqualified 14 of the 21 legislators.
The Governor acting without the Chief Minister’s advice advanced the Assembly session from 14 January 2016 to 16 December and listed Speaker’s removal on the legislative agenda. On 15 December Speaker Rebia preemptively disqualified the rebel MLAs on the grounds of defection before the Assembly could meet. The following day the resolution to remove Speaker Rebia was adopted.
The Speaker challenged his dismissal in Gauhati High Court which stayed the disqualification of Congress MLAs and dismissed the Speaker’s plea. Subsequently, an appeal was filed before a 5-Judge Bench in the Supreme Court whether a Speaker could disqualify MLAs while a motion for his removal was pending before the House?
The Court concluded that Speaker Rebia’s decision to disqualify rebel MLAs was an attempt to overcome voting by ‘all the then members’ and evade disqualification. And he could not initiate disqualification proceedings under the anti-defection law when a resolution seeking his removal is pending.
In January 2016, while the matter was being argued before the Apex Court the Centre dismissed Tuki’s Government and imposed President’s Rule. The Court for the first time in its history nullified President’s Rule and restored Tuki’s Government. However, Tuki was soon voted out of power in a floor test and the Court’s decision was reversed through political means.
Against this background and in our “Aaya Ram Gaya Ram” political milieu the Speaker’s job has not only become all the more important and demanding but today is the cynosure of all eyes. Given Parties have used Constitutional posts as lollipops to reward or oblige Party workers, the Speakership is no exception. Think. Although the Rules of Procedure are largely based on the Westminster model, the all-important issue of having an independent Speaker was overlooked.
As a former Lok Sabha Speaker confided, “We are elected on Party tickets with Party funds how can we claim independence? Moreover, even if we resign on becoming the Speaker, we would still have to go back to the same Party for sponsorship for the next election.”
However, few appreciate his key role without whom, according to Erskine May, “the House has no Constitutional existence.” Although the Rules of Procedure are largely based on the Westminster model, the all-important issue of having an independent Speaker was overlooked.
Under the Westminster system of Parliamentary democracy in Britain, an MP resigns from the Party on his election as Speaker. Moreover, the Speaker is re-elected unopposed to the House of Commons in subsequent elections. Sadly, barely a handful follow the premise that a Speaker is expected to be above Party politics, not a plaything of the Party.
Consequently, most Speakers have been Party members, especially after laying down Office or prior to it. From second Speaker Ayyangar who became Bihar Governor on expiry of his term to GS Dhillon and Manohar Joshi who switched roles from Ministers to Speakers, Balram Jhakar never concealed his identity as a Congressman, Rabi Ray lived up to his Janata Party’s expectation and Shivraj Patil who post Speakership, lost the re-election, but was nominated by Congress to the Rajya Sabha and anointed Home Minister. Sadly, today eyebrows are not even raised.
Against this backdrop Speakers have to walk a tight rope. Play fair and ensure the Opposition has its say even as the Government has its way. He has to set healthy and gracious conventions for the high Constitutional office he holds which calls for fairness, uprightness and adherence to Constitutional values and conventions.
Consequently, rules have to be drastically changed to ensure the Speaker’s Constitutional post is respected as it is sacrosanct. Legislators and Governments must desist from reducing his office in to a Constitutional extension of the Government. Thereby, converting the post in to a monument like Taj Mahal or Qutab Minar. We know what pigeons do to them.
Remember, a Speaker is an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality as what matters are not men but institutions. We must recognize a Speaker’s key role in our democracy by adopting the British maxim: “Once Speaker always a Speaker.” — INFA