Senior advocate Arvind P Datar Monday suggested that the Speaker of the Legislative Assembly should not decide the disqualification proceedings for anti-defection under the Tenth Schedule of the Constitution and instead the matter should be decided by the dedicated judge/bench in the respective High Court assigned to hear election petitions. "First and foremost thing we have to do is to remove the decision of disqualification from the Speaker. It is not possible to expect (impartiality, objectivity) from the Speaker as he is elected from a political party. History, empirical data has shown there is not a single instance of a Speaker voting against his own party, at least in my record," Datar suggested. Datar was speaking on the topic 'Anti-Defection and Constitutional Morality- The Need to Replace the Tenth Schedule' at the Justice (retired) K T Desai Memorial lecture on Monday evening held in the lawns of the Bombay High Court building, presided over by Chief Justice Devendra Kumar Upadhyaya. He had recently appeared for the Election Commission in Shiv Sena dispute before the apex court. Datar said that as per all the past judgments the Speaker "is expected to be a person of outstanding ability and impartiality." "But by nature, unfortunately, he/she is a member of a ruling party and in case after case you find, his partiality, non-objectivity is very evident and It is the most common feature where no decision is taken within a time limit, " Datar added. He referred to the 2007 judgment of the Supreme Court in Rajendra Singh Rana case where the judge had said that not deciding on disqualification by Speaker is abdication of his duty and decided to disqualify the members concerned. Datar also referred to the 1992 SC verdict of Kihoto Hollohan vs Zachillhu and Others where Justice J S Verma in his minority verdict had stated that the Speaker is a member of the ruling party and how one can expect a 'partisan' speaker to be independent and unbiased. He also stressed that a gap can be filled by the judiciary on the issues of whether there should be a time limit for the Speaker to take decision on disqualification pleas and for the Governor on giving assent to the Bill. As per Datar, the framers of the Constitution said that the posts concerned are all eminent constitutional offices and they will do their duty in an expeditious manner, "but it has not happened at all." He further spoke on who should be vested with the power to decide on the disqualification petitions once it is removed from the Speaker. Datar noted that in the 255th Law Commission headed by Justice (retired) A P Shah, it was recommended that it should be given to the Governor who will decide on the advice of Election Commission, similar to how the President is empowered to do so for members of Parliament under Article 103 of the Constitution "But with great respect, I would not agree with the suggestion to shift it (power) from the Speaker to Governor, which may not really achieve the objectivity it requires," Datar added He then referred to the SC judgment by Justices (retired) Rohinton Nariman and S Ravindra Bhat which suggested a separate tribunal headed by a judge to decide the disqualification issue. "My suggestion is, under Article 329, in the Madras High Court, there is a permanent judge who decides election petitions and the court is only occupied with such petitions. I would suggest, if there is a question as to whether the person has incurred disqualification under the Tenth Schedule, we can have such a provision under Article 329A (replaced) where a decision on disqualification is decided," Datar mentioned.
