Earlier this week, Mulayam Singh Yadav proved his majority in the UP assembly for a record 22nd time in four years. The Election Commission’s announcement of the schedule for assembly polls seems to have checked plans to impose President’s rule in the state following the judgment disqualifying 13 Bahujan Samaj Party MLAs who had joined the Samajwadi Party. The Congress claimed that all 37 MLAs have been disqualified and that the Mulayam government was therefore unconstitutional and deserved to be dismissed. The SP claimed the strength of a majority in the assembly. The apex court judgment has, in fact, nothing to do with the dismissal of state governments under Article 356. The decision raises vital questions pertaining to the speaker’s role in the context of the disqualification of legislators and the scope, desirability and effectiveness of judicial review in the context of the use of money and office to wean away legislators.The problem of defection is not new. In 1967 the Lok Sabha had set up the Committee on Defections to consider the problem of legislators changing their allegiance from one party to another. In the 12 months between March 1967 and February 1968, there had been no less than 438 defections! The Committee in 1969 noted that out of the 210 defecting legislators in various states, 116 were included in the ministerial council. The Committee had recommended debarring defectors from being appointed ministers. Bills to amend the Constitution in order to disqualify defectors from continuing as MLAs were brought in in 1973 and 1979, but lapsed subsequently. Finally, the Constitution was amended in 1985 adding the Tenth Schedule, which forms the basis of the present judgment. The Supreme Court, while adjudicating on the validity of the Tenth Schedule, struck down para 7 barring judicial scrutiny as unconstitutional in the Hollohan case in 1993. The judgment declared that though the Tenth Schedule pronounces the decision of the speaker to be final, the Supreme Court and high courts could intervene in cases of malafides, violation of constitutional mandates, and contravention of the rules of natural justice.The power vested in the speaker was based on the understanding that in a democracy, the elected legislature is the representative of the sovereignty of the people. Immunity from outside interference, including the judiciary, was considered a necessary prerogative of the effective functioning of the House. However, implicit in his office is the speaker’s impartiality. To quote Malvankar, “Once a person is elected speaker, he is expected to be above political parties, above politics.”Moving from theory to reality, we meet Luis Barbosa. He was elected to the Goa assembly on a Congress ticket and was made speaker. In March 1990, while still speaker, he resigned from the Congress along with six others, to form the ‘Goan Peoples Party’. Barbosa sought the protection of para 5 of the Tenth Schedule, which exempts from disqualification a person who resigns from the party for reason of his election as speaker. Barbosa engineered defections for his own political advancement and then tried to hide behind the office of the speaker! Then take Kailashnath Tripathi, speaker of the UP assembly who, in October 1997, dismissed the petition for disqualification of 12 out of the 67 BSP MLAs who defected to support the BJP government. Under the law, disqualification could be avoided in the case of a split involving one-third of the legislators. After a spate of defections and counter-defections, the Supreme Court ordered the holding of a composite floor test to determine the majority in the assembly in the Jagdambika Pal case.In the present case, 13 BSP MLAs requested the governor to invite Mulayam Singh to form the government after the Mayawati cabinet recommended dissolution of the assembly in 2003. The speaker kept the petition for the disqualification pending. Thereafter, a request was made by 37 BSP MLAs, including the 13 against whom a petition was pending, that a split involving one-third of the members had occurred in the party. In the course of a day, the speaker recognised the group as separate and its merger with the SP! It is interesting to note that the defence of a split involving one-third of the legislators as an answer to a petition for disqualification has been omitted by the 91st Amendment Act brought in 2003. However, the defence of merger of a party involving two-third of the legislators remains a valid defence to a plea for disqualification.In the present era of wafer-thin majorities, the role of the speaker has become vital. Courts deciding the question of disqualification is neither an effective nor desirable constitutional resolution. Equally, it is clear ‘the robes of the speaker’ do not ensure that the person wearing them is impartial. Perhaps, it is time to think of some alternative mechanisms to settle disputes arising out of defections, splits and mergers.The writer is a Supreme Court advocate
