[This is a post by Surabhi Srivastava, Contributing Editor]
Introduction
Presently, we have come across the situations where the members of the legislative assembly are being disqualified or being given the notice to explain as to why they shouldn’t be disqualified from Legislative assembly. In this scenario, we need to understand first, the power of Speaker with regard to disqualification.
If we trace the history from post-independence there are multiple instances where MPs or MLAs have switched their party after getting elected. The most famous incident was from Haryana in 1967 where extreme political horse-trading, counter horse-trading and counter-counter horse-trading took place. Independent MLA Gayaram switched four different political parties in a span of 15 days. After such an incident, safeguards were placed in the constitution to keep a check on the elected members of the Parliament and Legislative Assembly against their misconduct.
Constitutional Amendment
Anti-defection law was inserted in 10th schedule of the constitution by 52nd Amendment Act of 1985 to disqualify any member of the Parliament or Legislative Assembly from switching the political party from which they have been elected.
Speaker has vast power under the constitution to disqualify any member of the assembly. Being the presiding officer of the house any petition for disqualification is to be placed before him. Since 2003 the political parties have started to misuse the powers of the speaker’s office for disqualifying the members of the assembly. We all know that a speaker is to be elected by the members of the assembly but it’s an unfortunate truth that the party in the majority selects any person amongst themselves as a speaker who will remain biased during the proceedings of the assembly in their favour.
Judicial Review
Initially, any decision under the anti-defection law was not subjected to the judicial review but in 1993 through the case of Kihoto Hollohan vs Zachillhu And Others, the Supreme Court declared this provision as unconstitutional to the extent that, any decision of disqualification of any member of the assembly is subject to judicial review and can be challenged before the Supreme Court and High Court as a judicial review- part of ‘Basic structure’.
Misuse of Office of the Speaker and its Power
In 2019, a political crisis came up in Karnataka assembly where after election 17 MLAs of Congress they gave their resignation to K.R. Ramesh Kumar who was Speaker of the house. It was just before when congress was about to give confidence motion to the Speaker for making a government in the state. Being loyalist to congress party K.R. Ramesh Kumar while passing the order of disqualifying these MLAs, restricted them to contesting election until the term of the current assembly ends in 2023.
Affected MLAs approached the Court of Law against the order of the Speaker being unconstitutional and beyond the power of the House of Speaker. A three judges’ bench of Supreme Court in Shrimanth Balasaheb Patil vs Honble Speaker Karnataka upheld the order of the Speaker disqualifying 15 MLAs from Congress and JD(S) but struck out the period of disqualification. Supreme Court held that the speaker in the exercise of powers does not have the power to indicate the period for which a person is barred from contesting an election. This could be said as one of the defects of the defection law as there is no penalty imposed to the defecting member of the House – so there is no deterrence whatsoever.
Court further held that the Speaker, while adjudicating a disqualification petition, acts as a quasi-judicial authority and the validity of the orders thus passed is subject to judicial review before this Court under Article 32 of the Constitution.
Court further observed that 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 the lure of office or wrong reasons have not abated. Thereby, the citizens are denied stable governments.
Recently in July’ 2020, a similar issue came up in the State of Rajasthan where show cause notice was being issued by the Assembly Speaker CP Joshi after the Congress complained that Deputy Chief Minister Sachin Pilot and 18 MLAs had disobeyed the whip of the party to attend two Congress Legislature Party meetings held at CM House.
Sachin Pilot and 18 other MLAs moved to the Hon’ble High Court challenging legality and constitutional validity of such notice as such a party whip applies only when the assembly is in session. Hon’ble High Court vide its order requested the assembly speaker not to ake any further action on show-cause notices to the 19 legislators and to maintain “Status Quo” until 24th July 2020.
Felt aggrieved by this order Rajasthan Speaker moved to the Supreme Court challenged this order of “Status Quo” on the basis of the judiciary was ever expected” to intervene in such matters resulting in “constitutional impasse”. As per the Constitution bench, the Judiciary cannot interfere in the discharge of the duty of the speaker. However, it was contended that only notice was issued to the MLAs. The decision on the matter was yet to be taken. Unfortunate that the elected representatives are circumventing through Judiciary. Three judges bench led by Justices Arun Mishra, B R Gavai and Krishna Murari while refusing to grant stay against the order of the High Court observed that “serious questions related to democracy” are involved in the matter.
Court further observed that the “voice of dissent cannot be suppressed in a democracy”. They had all been elected by the people and being their representative they have all the right to raise their voice and their voices cannot be suppressed. If some members of the political party do not agree with the agenda of the party, it will not be called for the disqualification of those members merely because they do not agree with the party.
Thus, to conclude, we can vividly witness how the powers of the speaker are being misused or being used in the most biased way. The position of the speaker is a constitutional post whose sanctity deserves to be maintained, however, in the above-mentioned instances the picture is truly disappointing. In simpler terms, political games put a wrong mark on the provisions of the constitution, which as a citizen makes us feel like the construction of fraud on the Constitution.
