Commissionerate System

Tenth Schedule and Power of Speaker

News Excerpt

The Supreme Court recently in KeishamMeghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly, pronounced a significant judgment in relation to the Speaker’s power to disqualify members of the legislative Assembly on the grounds of defection.

 

Anti Defection Law

  • The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote
  • The law applies to both Parliament and state assemblies.
  • As an exception, the law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
  • An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.
  • A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in theHouse.
  • The 91st Amendment Act of 2003 omitted an exception provision from the schedule i.e., disqualification on ground of defection not to apply in case of split.

Pre-Connect

  • The Supreme Court has asked the Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.
  • Parliament needs to “have a rethink of whether disqualification petitions ought to be entrusted to a speaker as a quasi-judicial authority when such speaker continues to belong to a political party either de jure or de facto”.
  • The court suggested to amend the Constitution to substitute the speaker of the Lok-Sabha and Legislative Assemblies as an arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent tribunal.
  • This tribunal is to be headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court or some other outside independent mechanism, to ensure that such disputes are decided both swiftly and impartially.
  • This will strengthen the provisions incorporated in the 10th Schedule, which are so vital in the proper functioning of democracy

Analytica

  • The office of the Speaker was empowered through the Anti Defection Law which is also referred to as the Tenth Schedule 
  • For over three decades the office of the Speaker has been under controversies for its decisions on the disqualification of MLAs who switch sides for profit or political power thus, undermining democracy. Demand to address this chronic problem has been gaining ground for long.
  • Courts have consistently emphasised the limited power of judicial review vis-à-vis the Speaker’s powers under the Tenth Schedule
  • In the landmark case of KihotoHollohan v. Zachillhu (1992), the court ruled that the scope of judicial review in respect of an order passed by the Speaker “would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, malafide intent, non-compliance with rules of natural justice and perversity.
  • In Rajendra Singh Rana v. Swami Prasad Maurya (2007), when the Speaker of the Uttar Pradesh Legislative Assembly decided upon the claim of a split in the legislative party but failed to decide on the disqualification of 13 MLAs, the Supreme Court ruled that the Speaker failed to exercise the jurisdiction conferred on him by the Tenth Schedule.
  • The 2nd ARC recommended that President or Governor (not the presiding officer) should have the power to disqualify the defecting members on the advice of the Election Commission.
  • In the Manipur Case, the court said the Speaker “is bound to decide disqualification petitions within a reasonable period.” What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided.
  • Also, in the same judgement, the court talked about amending the constitution to form a permanent tribunal for such cases.

Conclusion

Instead of putting an alternative mechanism in lieu of the Speaker to decide on the disqualification petitions, which will change nothing, attention may perhaps be accorded to giving more teeth to the Tenth Schedule, which has so far, failed on many fronts.

PEPPER IT WITH

Other powers of speaker, disputes related to membership of parliament, Party Whip and its powers, RPA, 52nd CAA, 93rd CAA