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How can we guarantee the Speaker’s impartiality?

Arvind P Datar writes: Either allow Parliament and state legislatures to descend into terminal decline or make the Speaker truly independent and let every legislature perform its constitutional function

Written by ARVIND P. DATAR |
Updated: August 20, 2021 9:47:57 am
The Parliament building in New Delhi. (PTI)

The disturbing scenes that we have witnessed in several state assemblies were sadly repeated in this year’s Monsoon Session of Parliament. Over the last two decades, paralysing Parliament has become the standard operating procedure of every Opposition party.

One can safely predict that the Winter Session of 2021 and all the coming sessions of Parliament will also be “washed out”. The decline in the functioning of India’s Parliament — and state assemblies as well — is caused by one primary reason: The lack of independence and impartiality of the Speaker.

Our Constitution, after extensive debate, adopted the Westminster model of governance. Members of Parliament were granted the same powers, privileges and immunities that were enjoyed by the House of Commons. In the Lok Sabha, as in the United Kingdom, the Speaker is the supreme authority; he has vast powers and it is his primary duty to ensure the orderly conduct of the business of the House. Every textbook of constitutional law points out the two essential qualities of a Speaker: Independence and impartiality. GV Mavalankar, the first Speaker, observed: “Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly, irrespective of party or person”. Pandit Nehru referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasised that Speakers should be men of “outstanding ability and impartiality”. MN Kaul and SL Shakdher, in their book Practice and Procedure of Parliament, refer to him as the conscience and guardian of the House. As the principal spokesperson of the Lok Sabha, the Speaker represents its collective voice.

It is the Speaker’s duty to decide what issues will be taken up for discussion. He has the sole discretion to permit an adjournment motion to be tabled or to admit a calling attention notice, if the issue is of urgent public importance. In the latter case, the minister has to make a statement or ask for time to make a statement later. Speaker Mavalankar observed that if something is very grave and affects the country, the House must pay attention to it immediately. Indeed, the supremacy of Parliament is emphasised by Article 75(3) of the Constitution: “The Council of Ministers shall be collectively responsible to the House of the People”.

Several judgments on the anti-defection law have been rendered by the Supreme Court. A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies. Sadly, over the last decade and more, an impartial and independent Speaker is an oxymoron. Indeed, it should be made mandatory that the Speaker ought to resign from his party and his sole allegiance must be to the Constitution and to maintaining the dignity of the House.

The present practice of the Speaker continuing to be an active member of the ruling party has the inevitable result of his refusing to allow any debate or discussion that may be essential in national interest but may embarrass the ruling party. This inevitably leads to constant disruption of Parliament by the Opposition. Indeed, a Speaker who continues to be a member of the ruling party is like an umpire being appointed by the batting side.

The persistent disruption of Parliament causes extensive damage not only to the prestige of the House but also frustrates the primary function of any legislature: The responsibility to make laws for the good governance of the country after careful debate and deliberation. Every law enacted is, therefore, said to represent the “wisdom of Parliament”. One cannot forget that some of the finest speeches have been made during debates on controversial legislation in all parliamentary democracies.

The stalling of parliamentary proceedings has led to the passing of important bills in several sessions without any discussion. In this session, not a single bill was referred to any select committee. It is significant that the Chief Justice of India has also highlighted the deleterious effects of no discussion taking place even when important bills are being passed.

However, the most dangerous consequence is the vastly increased powers that the executive — the bureaucracy — begins to command by default. In 1951, a nine-judge bench of the Supreme Court (In Re Delhi Laws Act Case) held that essential legislative functions cannot be delegated to the bureaucracy; law-making must remain the domain of the legislature. This constitutional mandate is now increasingly and consistently being violated by issuing rules and notifications that have far-reaching consequences. The new rules on information technology and electronic commerce are clear instances of changes that should have come about by a parliamentary law. And worse still is the power given to the executive to issue retrospective notifications — a step unknown to any civilised democracy.

The separation of powers is part of the basic structure of our Constitution. If Parliament ceases to be relevant, the foundation of our democracy will progressively get weaker. It is, therefore, imperative that the Speaker of every legislature resigns from his party to honour his constitutional obligation of independence and impartiality. For example, in 1967, late N Sanjiva Reddy resigned from his party when he became the Speaker.

This must be accepted as the primary responsibility of every ruling party, both at the Centre and in each state, and made into a constitutional convention. Indeed, the option is a binary: Either allow Parliament and state legislatures to descend into terminal decline or make the Speaker truly independent and let every legislature perform its constitutional function of deliberating on matters of public importance and passing laws after proper debate.

This column first appeared in the print edition on August 18, 2021 under the title ‘Guardian of the House’. The writer is a senior advocate

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