While granting interim relief to rebel MLAs of the Shiv Sena recently, the Supreme Court made a crucial but unusual judicial intervention that raises questions on the powers of the Speaker under the Tenth Schedule of the Constitution.
The interim order of Supreme Court:
The interim order grants more time to the rebel MLAs, until July 11, to reply to the disqualification notice served on them.
It seeks affidavits from them, and also a counter-affidavit from the Deputy Speaker on his removal as demanded by the rebels.
Implication: In granting more time, the Supreme Court has essentially delayed the disqualification proceedings, which would have a direct impact on a trust vote in the Assembly, whenever it takes place.
The Tenth Schedule and related Judgements:
The Tenth Schedule or the anti-defection law was introduced in 1985.
It gives the Speaker of the House the power to disqualify legislators who ‘defect’ from the party.
Kihoto Hollohan vs Zachillu and others Case of 1992:
In this case, the Supreme Court upheld the power vested in the Speaker and said that only the final order of the Speaker will be subject to judicial review.
The Supreme Court held that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman.
Nor would interference be permissible at an interlocutory stage of the proceedings carried by the Speaker/Chairman.
However, before this case the decision of the Speaker/Chairman was considered final and was not subject to judicial review. This provision was rendered unconstitutional by the Supreme Court.
Nabam Rebia v Bamang Felix case (2016):
In the landmark Nabam Rebia v Bamang Felix case, concerning a constitutional crisis in Arunachal Pradesh then, a five-judge Bench of the SC limited the Speaker’s powers.
The Supreme Court held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings, if a no-confidence motion against him is pending.
The 2016 ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated — effectively tying the hands of the Speaker.
Removal of speaker of Assembly:
Under Article 179 of the Constitution, a Speaker can be removed by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”.
The process begins with notice of at least 14 days.
In the 2016 Nabam Rebia ruling, the Supreme Court interpreted Article 179, specifically the term “all the then members of the Assembly”, to mean the composition of the house at the date/time of giving the notice for the removal of the Speaker.
This interpretation would mean that the composition of the Assembly cannot be changed from the date of issuing of a notice of the removal of the Speaker, and therefore the Speaker cannot make any decisions under the Tenth Schedule to change the composition of the House until the question of his removal is settled.
Constitutional Provisions related to Anti-defection
The 52nd amendment (1985) to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection.
Grounds of defection:
A state or central legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party.
Independent members would be disqualified if they joined a political party.
Nominated members who were not members of a party could choose to join a party prior to six months of the date of nomination.
Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post.
A party could be merged into another if at least two-thirds of its party legislators voted for the merger (Initially it was one third 91stamendment act made it two third).
The law initially permitted splitting of parties, but that has now been outlaw