Decoding the role of the Speaker and judicial review in legislative defections
The Maharashtra crisis may be leading India towards a constitutional anomaly. Exercising judicial review prior to the decision of the Speaker of the House virtually nullifies “Schedule X” of the Indian Constitution.
The Maharashtra political crisis may be leading India towards a constitutional anomaly under the guidance of the Supreme Court (SC). The deputy speaker of the Maharashtra Legislative Assembly served a disqualification notice to 16 rebel Members of Legislative Assembly (MLAs). Prior to this, the rebel MLAs moved a no-trust motion against the deputy speaker. The motion was rejected as the same was delivered through an anonymous email address. The rebel MLAs challenged the authority of the deputy speaker to serve a disqualification notice while a no-trust was pending against him. In a significant order, the vacation bench of the SC issued a notice to the deputy speaker seeking his response. The SC also granted interim relief by extending the deadline to July 12 from the original deadline of June 27.
Schedule X of the Constitution of India, inserted by the 52nd amendment, governs disqualification on the grounds of defection. As per paragraph 6 of Schedule X, the Speaker (or deputy speaker) of the house is the decision-making authority on questions of disqualification and acts as a tribunal. The decision of the Speaker is final. However, it can be subject to judicial review on certain grounds — violation of constitutional mandate, perversity, non-compliance of rules of natural justice, and mala fides. This judicial review cannot be undertaken prior to the making of a decision by the Speaker as per the judgment of the constitution bench of the SC in Kihoto Hollohan v Zachillhu (1992).
A similar scenario took place in Rajasthan in 2020 when Sachin Pilot of the Congress approached the Rajasthan High Court (HC), challenging the disqualification notice. The Rajasthan HC granted interim protection to Sachin Pilot by directing the Speaker to defer from taking action in disqualification notice. The order of the HC was appealed before the SC by the Speaker of the Rajasthan Legislative Assembly, which was withdrawn. Before withdrawal, the SC had the opportunity to stay the proceedings. However, it did not.
In a 2020 decision of Keisham Meghachandra Singh v the Honorable Speaker Manipur, the SC reiterated this principle and said interference by courts at the interlocutory stage of proceedings is not permissible. Issuance of notice of disqualification is a mere starting point of the procedure, and the defecting MLAs are given adequate opportunity of being heard. It is only after this that the Speaker decides. The law is unambiguous on this point; judicial review is permissible only when the Speaker has taken the decision. Any interference by a court prior to this stage is not envisaged by Schedule X, except in cases of interlocutory disqualification having “grave, immediate and irreversible repercussions.”
It is crucial to discuss the case of Nabam Rebia v Deputy Speaker, Arunachal Pradesh, at this point as it is being relied upon by the rebel MLAs to buttress their claim that the deputy speaker ought not to adjudicate upon the disqualification of MLAs while a no-trust vote is pending against the deputy speaker. Two things warrant attention here — first, in Nabam Rebia, the no-trust vote motion against the Speaker was instituted and the MLAs were disqualified with the purpose of reducing “all the then members” of the assembly who will vote for removal under Article 179(c). The court held that since the decision of the Speaker was based on this ulterior motive, it was unconstitutional. Second, if the ruling of Nabam Rebia is applied as argued by rebel MLAs in the present case, it would make Schedule X redundant. Each time a disqualification notice is served, rebel MLAs might move a no-trust motion against the Speaker. At the same time, the law could not be applied in a way where a genuine no-trust vote against the Speaker is not entertained.
The SC, in such cases, could refrain from interfering with the status quo while subjecting the disqualification to the outcome of the petition, as was done by the SC in Kunwar Pranav Singh v Speaker, Legislative Assembly of Uttarakhand. This would not interfere with the process and, at the same time, safeguard any malicious actions. However, the court interfered in the deputy speaker’s domain prematurely and two days later refused to stay a floor test during the pendency of the disqualification notice.
Coupled together, the orders tilted the political landscape. Orders of such nature create a ripple effect. If appropriate corrective measures are not taken by the court in the future, there will be a disjuncture between the constitutional law and practice in the sense of repudiation. The practice will overshadow the mandate of the constitution rendering the law a dead letter and virtually nullifying Schedule X.
Prakhar Raghuvanshi is a constitutional law honours student at National Law University, Jodhpur
The views expressed are personal
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