How the Courts Played a Part in the Visible Curtailing of Speakers' Autonomy

Parliamentary democracy rests on the concept that the House is sovereign. Yes, judiciary is vested with the powers of judicial review of the decisions of the Speaker, but that is in the spirit of checking misuse.

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When a Speaker has to plead in a court for the exercise of procedural powers vested in him, the independence and autonomy of the legislature stands effectively and irreversibly diluted.

Parliamentary democracy rests on the concept that the House is sovereign. Yes, judiciary is vested with the powers of judicial review of the decisions of the Speaker, but that is in the spirit of checking the misuse of the autonomy vested in legislative bodies.

Judicial intervention was never envisaged as an instrument to curtail the independence of the legislative. 

There is a clear dividing line between legislative and judiciary. Both are constitutionally empowered to define and operate their respective procedures and rules of conduct.

The independence of legislature in conducting its own business has been upheld by the Supreme Court on multiple occasions. The five-judge constitutional bench in 1992 Kihoto Hollohan v. Zachillhu & Ors. case clearly stated that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. 

This position was always upheld by successive judgments in several matters relating to conduct of business in the House and disqualification under the provisions of the 10th Schedule.

But that was in the past.

Now, Speakers are restrained from taking decisions. Now, challenging the judicial authority of the Speaker via a no-confidence motion is part of the great defection game plan. Now, permission to hold elections to a vacant post of Speaker can be withheld by the Governor on grounds of the matter being sub judice, only to be arbitrarily allowed later, despite it still being sub judice, without any reason or speaking order by the same Governor. 

Also read: As SC Hears Rebel Sena MLAs’ Plea, the ‘Solution’ May Lie in a Petition Pending With It

In recent years, the courts have twice decided to intervene in the decision-making process, prior to actual decision taken by the Speaker.

In July 2020, the Rajasthan Speaker C.P. Joshi had served notices on the rebel leader Sachin Pilot and others, initiating the disqualification proceedings. But the process was stayed by the Rajasthan high court bench comprising Chief Justice Indrajit Mahanty and Justice Prakash Gupta, which in its first hearing ‘requested’ the Speaker defer the decision till the court delivered its verdict.

A semantic distinction was made between dissent and defection by the rebels, who held that intra-party dissent cannot be regarded as voluntary giving up of party membership. Based on this logic, the petitioners pushed for stay on the disqualification notices by the Speaker and to discuss the constitutionality of Paragraph 2(1)(a) of the tenth schedule of the Constitution. 

In the next hearing held within three days, the high court moved from making  ‘request’ to giving a ‘direction’ to the Speaker.

It directed him to maintain the status quo on the disqualification notices till the Supreme Court decided on the constitutionality of the clause 2(1)(a) of the 10th Schedule. 

It may be recalled that the constitutionality of the 10th Schedule was analysed by the five-judge constitution bench in the Kihoto Hollohan case in 1992. The bench had then held that the Schedule was constitutional and upheld the final and unlimited power of the Speaker in the matters of disqualification under this Schedule. It may also be recalled that the while upholding the constitutionality of the 10th schedule, the bench struck down its Para 7.  Para 7 originally held that the decisions of the Speaker relating to disqualification would be out of the purview of judicial review. The Supreme Court bench ruled against it and brought the decisions of the Speaker under judicial review.

The Supreme Court bench headed by Justice Arun Mishra reopened the question of constitutionality, when Rajasthan Speaker C.P. Joshi moved a petition against the Rajasthan high court’s ‘request’ to stop the disqualification proceedings. The Supreme Court bench refused to stay the proceedings of the high court, observing that the matter required prolonged hearing due to the serious questions relating to democracy.

Also read: How Justice Arun Mishra Rose to Become the Most Influential Judge in the Supreme Court

It was after this refusal to stay the proceedings that the Rajasthan high court changed its language from ‘request’ to ‘direction’. The SC bench later framed 13 legal issues for the consideration of the court. It also held that the decision of the High Court will be subject to the orders passed by the Supreme Court.

It has been almost two years since. The rebel group is back in the fold of the Congress party. The petition is pending in the Supreme Court. Ashok Gehlot’s government survives. But the authority and autonomy of the Speaker stands diluted. 

The Rajasthan case probably paved the way for the second intervention in the functioning of the Speaker.

Last week, the Supreme Court vacation bench comprising Justice Suryakant and Justice J.B. Pardiwala heard the petition of Shiv Sena rebels led by Eknath Shinde. He had petitioned for staying the disqualification notices by the Deputy Speaker to 16 rebel MLAs of Shiv Sena and the court extended the date for the replying to the notices to July 11

The Deputy Speaker was the presiding officer in the Maharashtra assembly, as the Speaker Nana Patole had resigned almost a year back. Constitutionally, the Deputy Speaker enjoys the same powers as the Speaker in absence of the Speaker.

As is now well known, the Supreme Court’s decision to extend the notice period effectively stayed the disqualification proceedings against Shiv Sena rebels.

Meanwhile, the floor test was allowed, a new government is in place, a new Speaker has been elected and the July 11 deadline is as good as infructuous.

Maharashtra Assembly Speaker Rahul Narvekar meets Maharashtra Governor Bhagat Singh Koshyari, in Mumbai, Tuesday, July 5, 2022. Photo: PTI

With these two judgements, the autonomy of the Speaker stands considerably curtailed. The Speaker is not just the presiding officer. He or she is also the custodian of the House and embodies the sovereignty of the House.

There is merit in the argument that on occasions, a Speaker may be a willing partner in the political manoeuvres. But it is precisely for this reason, the constitutional bench had struck down the Para 7 of the 10th schedule and brought the decisions of the Speaker under judicial review. But the constitutional bench was cautious and while doing so, it retained the finality and unlimited powers of the Speaker, as these are essential to preserve the sovereignty of the legislature. 

As the matters stand now, the 10th schedule is rendered almost ineffective especially in cases where a government can be toppled in favour of the dominant political party in the Union government. Now the rebel members just have to shoot a letter of no-confidence against the Speaker to remove him or her from adjudicating their cases. And while the legitimate disqualification cases are deferred due to judicial intervention, or no-confidence against Speaker, or both, the governments can be toppled.

The issue is not of mere academic value. The issue does not die down because a government has fallen or a rebellion has been quelled.

The myopic view of withering away of the constitutional privileges and autonomy through the prism of instant developments will finally deliver a death knell to the independent functioning of the parliamentary democracy. 

It is therefore incumbent for all Speakers of the legislative assemblies in the country to come together before a fresh case further impinges on their authority. Even if the Speakers in BJP-ruled states ignore it, the Speakers in opposition ruled states must deliberate the way forward to have legal clarity and procedural independence.

Can the Rajasthan Speaker C.P. Joshi, whose petition is pending in the Supreme Court, take a lead?

Gurdeep Singh Sappal is a former CEO of RSTV.