Speaker can never be an unbiased umpire in the game of politics, says petitioner in Shiv Sena dual-faction case

The petitioner sought reference to the law laid down by the Supreme Court in Nabam Rabia that the Speaker's functions as a Tribunal become disabled the moment a notice for their removal is issued. It was argued that the court needs to revisit the Tenth Schedule of the Constitution, which once ensured political morality but is now being misused.

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ON February 14, the Supreme Court Constitution bench of Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha began hearing a batch of petitions concerning constitutional questions on the interpretation of the Tenth Schedule of the Constitution, dealing with the disqualification of a legislator on the grounds of defection, including the powers of the Speaker therein.

These petitions concern the political upheaval in Maharashtra involving the rift within the Shiv Sena last year, which led to two factions — the Shiv Sena (Uddhav Balasaheb Thackeray) led by former Chief Minister Uddhav B. Thackeray, and the Balasahebanchi Shiv Sena led by current Chief Minister Eknath S. Shinde. The latter broke away from the original Shiv Sena and, on the invitation of Governor Bhagat Singh Koshyari, formed the government in June last year after the resignation of Thackeray as Chief Minister.

One of the writ petitions was filed by the then General Secretary of the Thackeray-led Shiv Sena, Subhash Desai, who challenged the Governor's invitation to Shinde to form the government. It also challenged the election of the new Speaker, Rahul Narwekar, and his subsequent recognition of the Shinde faction's nominee Bharat Gogawale as the Chief Whip of the Shiv Sena, instead of Thackeray's nominee Sunil Prabhu.

Previously, these matters were heard by a bench led by then CJI N.V. Ramana and Justices Murari and Kohli. In August last year, the bench formulated eleven questions for adjudication by a five-judge Constitution bench. One of the crucial questions pertained to the power of the Speaker or the Deputy Speaker to initiate disqualification proceedings under the Tenth Schedule whilst proceedings on their removal are pending. This issue directly concerns the law laid down by a five-judge Constitution bench of the Supreme Court in Nabam Rebia & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016).

Nabam Rebia judgment disables Speaker to decide disqualification petitions

In Nabam Rebia, the Supreme Court had held that the Speaker cannot disqualify members under the Tenth Schedule when a motion of removal is pending against them. This way, there will be a constitutional harmony between the provisions of Article 179(c) of the Constitution concerning the removal of the Speaker/Deputy Speaker and the Tenth Schedule.

At the outset, senior advocate Kapil Sibal, representing the petitioners, argued that Nabam Rebia disables the Speaker from functioning under the Tenth Schedule as a Tribunal. Sibal urged for a reference of the Nabam Rebia judgment to a larger bench.

Explaining the disability attached to the role of the Speaker as a tribunal, Sibal told the court that any legislator can issue a notice for the Speaker's removal with a 14-day period notice under Article 179 of the Constitution and Rule 11 of the Maharashtra Legislative Assembly Rules.

As per Rule 11, once that notice expires, it is subsequently read by the Speaker and ten per cent of the majority membership (which amounts to 29 legislators for Maharashtra) must vote in favour of it. Once the majority agrees, a leave is granted and within seven days of the leave, a resolution for the Speaker's removal has to be passed.

Sibal told the court that the moment notice is issued, the Speaker cannot function as a Tribunal. Moreover, the Assembly does not need to be in session to issue a notice. This has been a tool of misuse, Sibal submitted.

In Nabam Rebia, 21 Indian National Congress legislators of Arunachal Pradesh had rebelled against the then Chief Minister Nabam Tuki of the Congress. Some members of the Assembly had written to the Governor to communicate their displeasure with the Speaker and the state government. The Governor, without acting on the aid and advice of Tuki, moved the Assembly session earlier in time and listed the removal of the Speaker on the legislative agenda. Meanwhile, the Speaker decided on the disqualification petitions of the rebel legislators on the ground of defection. When the Assembly met, a resolution for the Speaker's removal was adopted.

The Supreme Court had restored the status quo ante. It held that the Governor has no role to play in the removal of the Speaker under Article 179.

However, the court also observed: "…Any change in the strength and composition of the Assembly, by disqualifying sitting [legislators], for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all "the then members" to determine the right of the Speaker to continue."

The judgment further stated: "…If a Speaker survives the vote, on a motion for his removal from the office of Speaker, he would still be able to adjudicate upon the disqualification petitions filed under the Tenth Schedule….It is apparent, that the difficulty arises only, if the disqualification petition is taken up first, and the motion for the removal of the Speaker is taken up thereafter…"

According to Sibal, no threshold can be attached to the functioning of a Speaker as a Tribunal unless a resolution on their removal is passed. It is because if they become disabled the moment a notice is issued, there will be no one to decide on the pending disqualification petitions.

Also, during the period from when the leave is granted to when the resolution is passed, the legislator has the discretion to move the motion for resolution and it may not be ultimately moved at all. It is only when the resolution is passed that the Speaker will have to vacate the chair.

At this juncture, the CJI read out an interesting proviso to Article 179(c). The second proviso to Article 179(c) states that when the Assembly is dissolved, the Speaker shall not vacate their office until immediately before the first meeting of the Assembly after the dissolution. He remarked that even in dissolution, the Speaker continues, notwithstanding that they were elected by the Assembly.

Their office, even in dissolution, is continuing, Sibal submitted.

Sibal: Minority in Kihoto Hollohan was right, Speaker cannot be sole arbiter 

Sibal then referred to the minority judgment in the Supreme Court's landmark judgment in Kihoto Hollohan versus Zachillhu & Ors. (1992) to substantiate his arguments.

In Kihoto Hollohan, a five-judge Constitution bench of the Supreme Court, by a 3-2 majority, upheld the sweeping discretion available to the Speaker, while deciding on a disqualification petition. However, the minority judgment, authored by Justices L.M. Sharma and Jagdish Saran Verma, said that the authority of the Speaker is dependent on the continuous support of the majority in the House and thus, they don't satisfy the requirement of an independent adjudicatory authority to decide on a disqualification petition during the pendency of a motion of their removal.

Since adjudication of issues relating to the free and fair election is essential to sustain democracy, which is a part of the basic structure of the Constitution, the Speaker, as a sole arbiter, violates this essential feature, as per the minority opinion.

The bench in the instant case noted that the functioning of the Tenth Schedule depends on the Speaker and asked Sibal if he wanted to make a reference to Kihoto Hollohan. Sibal answered that he personally feels that there must be a reference since the minority was right.

Responding to a question of the CJI on who gets to decide if not the Speaker, Sibal said the court should decide.

However, the bench rejected this proposition and said this is a matter for the House to decide. "The court cannot go into the House to decide," Justice Narasimha remarked.

Notice for Speaker's removal must only be given when the House is in session 

Sibal suggested that the notice for the removal of the speaker should only be sent when the House is in session. This will prevent all malpractices that take place because the Speaker will only have to vacate their seat when a resolution on their removal is put to vote.

Further, deliberating on Article 181 of the Constitution, which prescribes that the Speaker or the Deputy Speaker must not preside while a resolution for their removal from office is under consideration, Sibal said that the Speaker continues to preside and perform their legislative functions except when voting on the resolution for their removal takes place. They have a casting vote only when there is equality of votes.

However, their functions under the Tenth Schedule as a presiding officer of the tribunal do not apply even when notice is issued, he submitted.

What are the consequences of the Speaker deciding Tenth Schedule proceedings when leave for their removal is granted, asks Supreme Court

While Sibal pointed out that there is always a possibility that the resolution may never be moved, the CJI pointed out that one of the consequences could be that the Speaker may affect the motion for his own removal.

Sibal told the court that the disqualification could be subjected to judicial review. He further told the court that they must not assume that the Speaker will discharge the functions in a mala fide manner as they are well within his mandate to decide the disqualification of those who have voluntarily given up membership of the party.

According to Sibal, the Speaker is a constitutional authority and their function as a Tribunal cannot be hindered when they continue to perform all legislative functions. Unless there are express or implied restraints, their authority as a presiding officer under Tenth Schedule cannot be clouded.

However, the court will continue to deliberate on the position taken by Justice Deepak Misra in Nebam Rebia, in which he had held that if the Speaker is not restrained to function as a tribunal, they may decide the disqualification petition before the expiry of the 14 days' notice period.

The bench agreed that this is a matter of interpretation and will continue to hear arguments on it.

Interestingly, Sibal had represented the appellant and argued before the Supreme Court in Keisham Meghachandra Singh versus The Hon'ble Speaker Manipur Legislative Assembly & Ors (2020), in which a three-judge bench of the court noted:

"Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal 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, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy."

The matter will continue to be heard on February 15.