President Murmu breached no convention, rather followed or developed it: A response to S.N. Sahu’s piece

In a recent article in The Leaflet, S.N. Sahu spoke of the worrisome situation caused by President Murmu appointing B. Mahtab as the pro tem Speaker. Adducing previous pro tem Speakers, the author posits that the constitutional convention lacks clarity on whether the senior-most member of Lok Sabha is determined by intermittent or continuous service.

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WITH the 18th Lok Sabha sworn in, many concerned questions were raised by the appointment of Bhartruhari Mahtab of the Bharatiya Janata Party (BJP) as the pro tem Speaker of Lok Sabha.

The pith of the contentions raised by the Indian National Congress (INC) leader Jairam Ramesh, as well as former press secretary S.N. Sahu, relate to whether K. Suresh of the INC should have been appointed instead.

The pro tem Speaker is appointed for the oath-taking ceremony of the members of Parliament who are taking office at the start of a new term of Lok Sabha.

To take Sahu's arguments, as he presents them in The Leaflet, the constitutional convention dictates that such a role must only be afforded to the 'senior-most' member of Lok Sabha.

This convention arises out of a lacuna in Article 95(1) of the Constitution and leaves the appointment question to the discretion of the President.

In my view, the President has not erred in appointing Mahtab as the pro tem Speaker. The reasoning given by Kiren Rijiju, the Union minister for parliamentary affairs, is not 'shallow', as Sahu claims, but rather sensible, given the historical record.

The 'evidence' for the intermittent seniority

Sahu adduces two authorities on the question of why K. Suresh should be appointed as the pro tem Speaker. First, refers to the Practice and Procedure of Parliament published by the Lok Sabha secretariat, and the second to a primer by the Supreme Court Observer (SCO) when discussing the Karnataka Vidhan Sabha's crisis of constitution in 2018.

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In addition to this, he reproduces a list of all the Speakers of the Lok Sabha to date, adducing their seniority at the point of their appointment as pro tem Speakers. These, he believes, are sufficient to establish a breach of constitutional convention by the President.

Misreading the question

Strangely, none of these authorities cited succeed at advancing the proposition that the President breached any constitutional convention. The Practice and Procedure of Parliament, as well as the SCO's primer, state in effect that it is the 'senior-most' member of the Lok Sabha who is appointed to such a post.

This is, to put it mildly, exactly the claim of the BJP as well. It is not in dispute that the senior most Lok Sabha member should be appointed the pro tem Speaker, but rather what constitutes seniority— is it the number of years served in the Sabha intermittently or continuously?

Neither of Sahu's two cited authorities answer this question with the former response. Therefore, the claim that any such convention has been breached cannot be adduced to by them.

Belabouring of the numbers

Additionally, the long tapestry of pro tem Speakers, although making for a bulky dataset, does not advance the point being made either. It has thus far not been the case that any of the appointed pro tem Speakers have intermittently been members of Lok Sabha.

This can be seen clearly in the example of the three preceding pro tem Speakers.

BJP's Virender Kumar in 2019 had been a member of Parliament (MP) for every Lok Sabha term continuously since the 11th Lok Sabha in 1996.

INC's Kamal Nath, the pro tem Speaker in 2014, had been an MP since the 12th Lok Sabha in 1998. If not for the 11th Lok Sabha, he would have been continuously serving since 1980.

Manikrao Hodlya Gavit, the pro tem Speaker in 2009, was continuously serving since the 7th Lok Sabha in 1981.

Lest any accusations of partisanship arise, it may be relevant to note that in 2019, Kumar was in his seventh term, whereas BJP MP Maneka Gandhi, although in her eighth term, was not selected as she had lost an election in the Tenth Lok Sabha in 1991.

A case from the past?

In light of the clarifications made, the idea that the President breached the constitutional convention can be dismissed without hesitation.

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However, this may give rise to two questions that might be important for parliamentary polity. Indeed, even if a contrary practice was adduced to by practice, some reasons may be persuasive enough to consider those anomalies and departures instead.

The first question is, in the 17 terms of Lok Sabha till date, have there been any MPs who could claim a greater number of years as Lok Sabha members than the pro tem Speaker at the relevant time? If so, then the convention clearly favours Mahtab over Suresh.

Interestingly, the Practice and Procedure of Parliament is not silent on the question. It specifically notes that in the cases of Sardar Hukam Singh (1956) and D.N. Tiwari (1977), the convention was departed from (page 118, footnote 71).

In neither of these cases was there a claim of continuous membership as being the reason for departure. Singh, in particular, took the seat of Ayyangar as he did not wish to preside over a matter relating to his constituency (page 105, footnote 44). Therefore, the past practice does not bear out acknowledging this as a departure from established convention.

Therefore, at the most conservative, we can conclusively state that President Murmu's practice has helped develop an established convention, setting stipulations for its use and application.

Not being rigid law, such developments are necessary and productive in systems of democracy.

Going past the case

Having instituted the conservative position, an argument can also be made as to why the move undertaken by the President was not only permissible but preferable.

Firstly, PRS Legislative Research claims that the senior-most rule is not limited to Lok Sabha, rather it includes time spent in Rajya Sabha.

If true, subscribing to Sahu's logic is incompatible with this Rule. The Rajya Sabha Rule clearly indicates that one's association should be with reference to the Parliament as an institution, such that it does not quite matter that one had not spent time in the Lok Sabha in particular.

Naturally, this would be irreconcilable with the position that someone who lost the mandate of the people for two terms of Lok Sabha should be awarded the ceremonial helm.

An English mix

Secondly, a close perusal of Rijiju's statement would reveal that the 'continuous' qualification arises from the 'Westminster Model'. Discussions on this point have then failed to consider the practice of the United Kingdom's House of Commons and how it decides on the pro tem Speaker.

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In the United Kingdom, the presiding officer of the House since 1971 is the 'father of the House', pending the election of the Speaker. This rather homely nomenclature belongs to one who has the 'longest continuous service' as a member of the House of Commons.

Even in the United States Senate, the dean of the Senate refers to the longest continuous serving member. However, in those cases, the dean is customarily elected to be the pro tem President if they belong to the majority party, a position even more radical than that of India.

To shut it sealed

We can, then, state a few things about the conduct of the President in appointing Mahtab as the pro tem Speaker.

It is not incompatible with the past practice of Lok Sabha, which has never provided for a longest intermittent rule, nor signalled any past instance of continuous membership as departing from the convention for that reason.

All previous cases of pro tem Speakers evidently conclude that the office-holders have been in continuous service. 

Lastly, the continuous membership rule is structurally sound, given its direct correspondent in the Westminster system's 'father of the House' rule, as well as its interoperability with Rajya Sabha.