Rajasthan's political developments put focus on Speaker's office

The political developments in Rajasthan put focus back on anti defection law under the Tenth Schedule of the Constitution and the Speaker's office. The open revolt by Congress legislators led by sacked deputy CM Sachin Pilot and the subsequent action by Speaker C P Joshi require a relook on the recent Supreme Court judgements which emphasised on strengthening the anti-defection law and setting up an independent authority to decide upon disqualification petitions as the Speaker continued to remain as a "political person" and failed to maintain the neutrality of the office.

In the case of resignation and subsequent disqualification of Karnataka MLAs of Congress and JD(S), the top court in November, 2019 upheld the order passed by the Speaker to reject the resignations. But the decision to disqualify rebel MLAs till the term of 15th Assembly was set aside.

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However, the top court did not fail to point out its concern, saying "There is a growing trend of the Speaker acting against the constitutional duty of being neutral. Further horse trading and corrupt practices associated with defection and change of loyalty for lure of office or wrong reasons have not abated. Thereby the citizens are denied stable governments."

In the case of Rajasthan, the Speaker has given disqualification notice to Pilot and his 18 supporting MLAs on their failure to attend the Congress Legislative Party meetings. The rebel MLAs maintained they were still in the party and their grievances were with the leadership only, and their action fell within domain of fundamental right to exercise freedom of speech and expression.

The High Court, in the instant case, would decide their pending plea against the disqualification notice.

But it is important to note in Parliamentary democracy, governed by party politics, stability within the government was a sine quo non to ensure good governance. Thus, the Speaker's role becomes all the more critical in making apparent the separating line between dissent and defection, so as to uphold democratic values in balance with other constitutional considerations.

In the case of Manipur Congress MLA Thounaojam Shyamkumar, who switched side to BJP, the Supreme Court in January, this year, rued that its experience with regard to decisions taken by the Speakers on disqualification petitions against rebel legislators has proved the fear expressed in the landmark judgement in 1992 about bias and impartiality of the presiding officer of the House.

The minority view in the judgement in Kihoto Hollohan (1992) stated, “The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out”.

The judgement had then upheld the sweeping discretion available to the Speaker under the Tenth Schedule (anti-defection law) of the Constitution in deciding cases of disqualification of MLAs and kept such decisions outside the purview of judicial review.

In its judgement in Manipur's case, the court favoured an independent body like tribunal headed by a retired judge, to decide on disqualification matters.

"It is time Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto,” it had said.

In Shyamkumar's case, the top court, subsequently, stripped him of ministerial post and barred him from entering Assembly as the Speaker had failed to act on disqualification plea.

Again, it is relevant here to point out a matter related to disqualification of 11 AIADMK MLAs, including deputy Chief Minister O Paneerselvam has been pending before the Tamil Nadu Speaker since March 20, 2017, which was in gross violation of three months outer limit to decide such pleas.