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In fact: Why Speaker’s power to disqualify is not unrestrained

Justice Dipak Misra’s separate judgment in the Arunachal case last week elucidated for the first time details of provisions of Art 179 (c) and Tenth Schedule.

Written by Utkarsh Anand |
July 20, 2016 2:34:36 am
Arunachal pradesh, Arunachal pradesh verdict, Nabam Tuki, Arunchal president rule, Dipak Misra, Justice Dipak Misra, india news Justice Dipak Misra

The Constitution Bench judgment in the Arunachal Pradesh case last week signifies many firsts in Constitution law jurisprudence. It declared an unequivocal resolve by the Supreme Court to “put the clock back” when the “elected government of the day”, as it said, has been “humiliated” amid political horsetrading.

The judgment was unprecedented — never in Indian judicial history had a government been dismissed by virtue of a court order and the previous dispensation restored. Similar situations arose in the top court twice before, but even a nine-judge Bench had refrained from reinstating a government thrown out following a spate of political revolts and the Governor’s intervention.

The judgment was also a landmark verdict on the role of the Speaker of the House. Justice Dipak Misra delivered a separate judgment running into 25 pages, in which he elucidated the role, power and duties of the Speaker. Justice Misra traced the importance of the office of the Speaker from the Constituent Assembly debates, and juxtaposed it with his authority under the Tenth Schedule of the Indian Constitution, which is popularly referred to as the “Anti-Defection Law”. The Tenth Schedule was inserted into the Constitution by the Fifty-Second Amendment Act in 1985 to curb “the evil of political defections” by “outlawing” the guilty.

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Justice Misra, authoring his concurrent judgment, referred to the Constituent Assembly debates as he pointed out that Constitutional provisions would connote that “the Speaker enjoys high constitutional status and the Constitution reposes immense faith in him”. It was a constitutional warrant, and not merely the fond hope of individuals, that the Speaker must have a sense of elevated independence, impeccable objectivity and irreproachable fairness, and above all, absolute impartiality, said the judge as he set down the interpretation of Article 179 (c) of the Constitution.

Article 179 (c) lays down that the Speaker may be removed from office by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”. A prior notice of 14 days is required to be given before such a resolution is moved in the House. The Arunachal Pradesh case lent an opportunity to the Supreme Court to interpret this provision in detail for the first time, and Justice Misra opted to write elaborately on this aspect.

His judgment recalled that an amendment was moved during the Constituent Assembly debates to alter the words “all the then members of the Assembly”, and make it “majority of the members present and voting”. The amendment was negatived, and it was resolved that the Speaker could be removed only by a resolution passed by a majority of all the then members and not just by the majority of the members present and voting. Highlighting this, Justice Misra said, “it is necessary to sustain the elevated position the Speaker constitutionally enjoys, and (to) also have room for constitutional propriety”.

The judgment then referred to the Speaker’s powers under the Tenth Schedule to disqualify legislators for defection, and held that he functioned as a “tribunal” in adjudication of disputes relating to defection.

Justice Misra said that when the framers of the Constitution upheld that the Speaker could be removed only a majority of all the then members of the Assembly, there was no Tenth Schedule in force — and hence, the time had come to find a balance between his powers and his duties.

The judgment looked for a legal answer to a situation where a 14-day notice had been given for removal of the Speaker, but the latter decides to adjudicate in the mean time the petitions to disqualify those who want him out.

“…The power which flows from the introduction of Tenth Schedule by constitutional amendment is required to be harmoniously construed with Article 179 (c). Both the provisions of the Constitution are meant to subserve the purpose of sustenance of democracy which is a basic feature of the Constitution,” noted Justice Misra.

The judgment said that the answer to such a situation lay in the principles of “complete detachment and perceivable impartiality” that required the Speaker to desist from using his power to disqualify the members until he passed the test of, what Justice Misra called, “constitutional confidence”.

The judge said that to maintain his propriety as an adjudicator, it was expedient that the Speaker should first “stand the test and then proceed”, since that could be the only intention of Article 179 (c). “…The said interpretation serves the litmus test of sustained democracy founded on Rule of Law; and the Founding Fathers had so intended and the constitutional value, trust and morality unequivocally so suggest,” he said.

Justice Misra said it would be “an anathema to the concept of constitutional adjudication” if the Speaker is allowed to initiate proceeding under the Tenth Schedule after “intention” to remove him from his office is moved because the command for him is to retain the confidence of the majority of the “actual or real figure”.

The judgment asserted that as far as the Speaker is concerned, nothing changed even after the introduction of the Tenth Schedule, which empowered him to pass adverse orders against fellow legislators. It was imperative for the Speaker to first pass muster himself to strike harmony between “constitutional confidence” and “constitutional control”, Justice Misra said.

The judgment, for the first time, sets down as a legal principle that the Speaker cannot proceed to disqualify Members of the House if an “intention” to remove him has already been moved, and that he would have to first prove he still has the confidence of the majority of Members. The Tenth Schedule might have authorised the Speaker to adjudicate disputes on defection, but it cannot supersede his duty to show he continues to carry the “constitutional confidence”. Justice Misra ends his judgment with the message that high constitutional functionaries should remain embedded to restraint and discipline with humility which, he says, is the “ultimate constitutional virtue”.

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utkarsh.anand@expressindia.com

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