The political stability index of 2021 ranked India at the 143rd position out of 194 countries with an aggregate score of -0.62. This created a sheepish image of the largest representative democracy in the world. Many propositions were cited to justify the so-called “substandard rank”, however, the primary ground-level reason for subsequent political instability was credited mostly to defection by political party members since its Independence. Once elected on a party ticket, a legislator is perpetually expected to stick to the ideologies and policies of the same party. Though, time and again due to internal disagreements with senior leaders and their quest for power, elected members usually left the parties to join the opposition. The fact Because democracy requires a stable government by its very nature, defection was seen to be a threat to the representative ethos of the country. It was assumed that the regular government crises could breed mistrust among the population, questioning the very model of “Parliamentary Democracy”. Hence, the introduction of the Anti-Defection Law was deemed to be the “sine qua non” to combat the evils of political defection. The Anti-Defection law was enshrined through the introduction of Schedule X into the Constitution of India, comprising VIII paragraphs. But since its inception, there had been multiple judgements questioning the Suo moto powers of the speaker under paragraph VI. Also, certain prominent judgements have been in contradiction to each other. The author, therefore, opines that this conundrum shall be put forth to an end by demarcating the jurisdiction of courts under Article 226 and that of the speaker’s power under Schedule X.
THE CONFLICTING JUDGEMENTS
The voice of prominent judgement is heard across the globe. Especially if it’s given by the apex court, then it not only creates a precedent but also adds strong persuasive value. There have been instances when petitions about the same section and schedule are offered contradictory grounds of the decision and one of the nonpareil examples is Schedule X. The judgement given by the Supreme court in “Kihoto Hollohan v. Zachillhu” and in that of “R. Sakkrapani v. Thiru R. Natraj” depicts the lacuna of infirmities. Section 2(1)(b) of the schedule reads as whenever a member is found to be voting against the whip initiated by the party or acting contrary to the directions issued shall be disqualified. This unequivocally had the motive to strengthen the existence and accountability of the government. Section VII, on the other hand, gave powers to the speaker concerning disqualification on these aforementioned grounds, which later was nullified. The speaker was treated as a tribunal for the final decision maker for the disqualification of the members.
However, in “Kihoto Hollohan v. Zachillhu” the unwarranted power of the speaker concerning the disqualification of a member was questioned before the apex court. It was argued that the finality of the decision shall not lie solely in the hands of the speaker and shall be subject to judicial review. Also, it was presumed that the speaker’s position of authority in the house and his continued service depends on the desire of the majority so he may be biased. Therefore, allowing the same under the purview of Judicial Review was meant as the need of the hour. Also, it is pertinent to mention the concluding judgement of the case wherein the bench observed that in the X schedule, the Speaker is made not only the sole but the final arbiter of a dispute with no provision for any appeal or revision against his decision to any outside authority. This departure of the tenth schedule would be a reverse trend and violate the basic structure of the constitution. Since the speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates, the para VII of the X schedule was held unconstitutional and the defection cases were held amenable to judicial review. Further, it was iterated that reaching out to the court, before the decision of the speaker shall not be entertained unless it falls under the following grounds namely
- Infirmities based on violation of the constitutional mandate
- Mala fide intention of the speaker
- Noncompliancece with rules of natural justices
By this viewpoint, the courts were not expected to render a final decision on the petitions by acting as the competent authority under the schedule or issue a temporary disqualification order for the accused member(s) while their petitions were being reviewed by the Speaker. This nullified para VII (excluding the jurisdiction of courts) of X Schedule. As a result, the arbitrary decision of the speaker for the petitions prolongs for an indefinite period limiting his unwarranted power.
However, in the year 2018; R. Sakkrapani, a Tamil politician and member of the legislative assembly was disqualified for voting against the whip issued by the party and he challenged the same in High Court. Here, it was again contended that if the speaker disqualifies a candidate and upholds the same for an indefinite period then this shall be an opportunity to reach the court. Also, it was argued that the speaker’s failure to dismiss the petition without prior notice constituted a violation of disqualification rules. Such inaction in itself would uphold the validity and deny the principle of “Ubi Jus Ibi Remedium”. The bench observed that they were constrained to embark upon the exercise of taking over the functions of the Speaker. Though in exceptional circumstances the court shall be reached out and even assuming that those circumstances exist, seeking relief by the court order would not only amount to judicial overreach but would also amount to a gross breach of judicial discipline. Therefore, the case was dismissed: “R. Sakkrapani v. Thiru R Natraj”.
This not only questioned the former judgement but also obscured the thin line of differentiation between the powers of the speaker and that of the jurisdiction of the court. It was clear that the courts were not allowed to execute quia timet acts i.e., “because one fears the disqualification at a later stage will not be allowed to reach the court before it”. The same was akin to pre-emptive action and was deemed not to be the right course. Also, one may easily reckon that the speaker’s inaction in the case led the petitioner to reach the court for judicial review. However, the court’s dismissal opening it not to be within their ambit even though it was the final decision of the speaker depicted the gross violation of the precedent set in the Kihoto Hollohan case. These two judgements had not only created an ambiguity in the jurisdiction of Courts but also laid down a question mark on the power of the speaker concerning defection. The “horse trading” had been a problem since why Anti-Defection law was introduced, but the subterfuge law in itself has become a bone of contention because of its obscure implications. The requisite gap-filling exercise between the two should be conducted.
Lord Halifax rightly said that “Even the best of the political party is a conspiracy against the nation”. The strife between the party in power and the opposition party had been a battlefield for the members about defection and retention. However, amidst this conventional culture, the very spirit of parliamentary democracy is transgressed and neglected. It is high time that these enigmas should be addressed by a higher Constitutional bench. The speaker’s suo moto power to disqualify the member should only be subject to judicial review after qualifying the grounds cited in Kihoto Hollohan Case. The disqualification shall be adjudicated by the speaker in a time-bound manner. Also, the jurisdiction of the apex court should only be entertained after this and not outrightly breach the division of powers between various organs. Provisions seeking to exclude the jurisdiction of the court shall be construed and a clear distinction needs to be conveyed invariably.
Author(s) Name: Niharika Rai (Rajiv Gandhi National University of Law)