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Having Non-Partisan Speakers

Prakash Nanda

Updated: April 18, 2016, 6:07 PM IST
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Having Non-Partisan Speakers
Recent political developments in Arunachal Pradesh and Uttarakhand have revived again the questions that were very common in between late 1960s and early 1990s. The questions relate to the central government of the day dismissing the state governments run by the opposition parties. It so happened that those days the central government was run by the Congress party.

Today, the roles have been reversed – the dismissed governments in both Arunachal Pradesh and Uttarakhand happened to be that of the Congress. Of course, last word has not been said on these developments since the matters are now under the scrutiny of the judiciary; but that is a different matter.

In both Arunachal Pradesh and Uttarakhand the media headlines have concentrated on the roles and reports of the two Governors on the basis of which the central government proclaimed President’s rule in the two states. And we all know how partisans have been some Governors in the states ruled by parties that are in opposition at the national level.

And it is understandable since Governors are usually the political appointees of the ruling party at the centre. However, in the process we have not paid sufficient attention to the controversial roles of the Speakers of the Legislative Assemblies in precipitating the political crises in the states that a Governor cites as the pretext for imposing the central rule.

In our parliamentary history, there have been many instances where the Presiding Officers of the legislatures (Parliament and Legislative Assemblies) are found wanting in taking correct decisions; but one of the most abusing roles they have played is in disqualifying members on the basis of the anti-defection provisions in the 10th Schedule of the Indian Constitution.

It may be noted here that in 1985 the Anti-Defection Law was passed as the Constitution (Fifty-second) Amendment Act. The Act sought to curb individual defections in the Legislatures by providing for disqualification of the defecting member while it allowed splits, if it involved one-third of the strength of the party in the legislature, and mergers of political parties under certain conditions, thereby seeking not to suppress political dissent, an essential pre-requisite for a healthy democracy.

However, there were still grey areas in the Act which were exploited by the unscrupulous politicians, particularly by breaking away with the support of one-third of the members of the party. Defections were easy so far as smaller parties were concerned. This lacuna was rectified when the Constitution was amended in 2003 through the Constitution (Ninety-first) Amendment Act.

The main provisions of the Tenth Schedule as it exists now are the following:

(i) An elected Member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated Member of Parliament or a State Legislature who is a member of political party at the time he takes his seat would be disqualified on the ground of defection if he voluntarily gives up his membership of such political party or votes or abstains from voting in the House contrary to any direction of such party.

(ii) An independent Member of Parliament or a State Legislature will also be disqualified if he joins any political party after his election.

(iii) Provisions have been made with respect to mergers of political parties. No disqualification would be incurred when a legislature party decides to merge with another party and such decision is supported by not less than two-thirds of its members.

(iv) A member, disqualified under the provisions of the Tenth Schedule, shall also be disqualified for being appointed as a Minister or for holding a remunerative political post for the duration of the period commencing from the date of his disqualification till the expiry of the term of his office or till he is elected again.

(v) The question as to whether a member of a House of Parliament or State Legislature has become subject to the disqualification will be determined by the Presiding Officer of the House.

It is this fifth point than enables the Presiding Officers of the legislatures to decide questions of violation of the provisions of the Anti-Defection Law that has come under shadow these days.

In many cases political considerations have been applied by the Presiding Officers in deciding the matters of defection, which considerably affects the dignity of the high office of the Presiding Officer. And this has happened in both Arunachal Pradesh and Uttarakhand.

The crisis in Arunachal Pradesh was essentially due to the clash of "powers" between the Governor and Speaker, following factionalism in the ruling Congress party that had 41 legislators in the 60-member House. As many as 21 dissidents wanted a new chief minister in place of Nabam Tuki.

They were supported by 11 MLAs belonging to the BJP. Obviously, Tuki did not enjoy the majority. But the Speaker Nabam Rebia disqualified 16 Congress dissidents even though till their "disqualification" they had not left the party or defied the party directive inside the Assembly to come under anti-defection laws.

The same has been the case in Uttarakhand. Here, there were nine Congress rebel MLAs. Till their "disqualification" by the Speaker Govind Singh Kunjwal, these rebels had not left the Congress party. And they had not, legally speaking, voted against the party inside the Assembly by violating the party whip.

It is true that they wanted division for passing the budget, but the Speaker, and it is unprecedented, declared the budget "passed" without voting. These rebels definitely would have invited the anti-defection provision had they been allowed by the Speaker to vote along with the opposition BJP against the budget.

But, had they been allowed, the Congress government would have also fallen that day as it would have been reduced into minority (the nine rebels along with BJP's 28 in a house of 70 would have reached the number 37 and easily defeated the budget, and the government was bound to resign with the defeat of a money bill like the budget).

In fact, the Congress party has no moral right to be in the government in Uttarakhand after what it did through the Speaker, first by declaring the budget passed without voting and then disqualifying the rebels to bring down the strength of the Assembly to survive.

Has the central government committed a mistake by imposing the President's rule first in Arunachal Pradesh and now in Uttarakhand when the constitutional crises there arising out of the Speakers' decisions were sub-judice? The correct answer can be given only by the higher judiciary, but what has happened is not the first of its kind. In 1992, the then Meghalaya Speaker PK Kyundiah suspended the voting rights of five Independent members before the House was to take up the confidence motion against Chief Minister BB Lyngdoh.

Later, Kyundiah disqualified them even though they had obtained "stay" from the Supreme Court. The apex court now said that the disqualified members must vote in the trial of strength. But before the Court's order was implemented, the then central government led by the Congress party imposed the imposition of Presiden't's rule in the state!

In my considered view, the solutions to Arunachal or Uttarakhand type problems are not legal but political. We must have clear laws pertaining to the powers of the Presiding Officers. Various Speakers have interpreted the Anti-defection law differently, sometime to save the government of the day and sometime to dislodge it.

After all, the Speakers or the presiding officers in the Assemblies and the Lok Sabha have been invariably members of the ruling party or coalition. They do not forgo their party membership after becoming Speakers and they do contest elections as ordinary party members to re-enter the legislatures.

Even if the Speaker is re-elected to the House, he or she retaining the job depends on the new composition of the House. This practice is in contrast to some other parliamentary democracies like Great Britain where the Speaker's office remains apolitical. If one becomes a Speaker then in the next election no political parties field candidates in the Speaker's constituency to ensure his or her re-election. And more often than not, the Speaker, if re-elected to the House, continues as the Speaker, unless he or she shows unwillingness to do so.

One is not sure if our political parties will develop such a healthy convention on the office of the Speaker. And that being the case, it is not a bad idea to work on the suggestion in 2010 of the then Union Law Minister that "the issue of disqualification of members of state assemblies, legislative councils and both Houses of Parliament should be decided by the Governor and President based on the recommendation by the Election Commission."

One is also reminded here of the former Lok Sabha Speaker Somnath Chatterjee that "the jurisdiction and authority to deal with matters of defection as provided in the Tenth Schedule need not continue to be exercised by the Presiding Officers and the power should be conferred on some other authority like a special Tribunal comprised of people well versed in law or on an authority like the Election Commission."

It is time indeed to stop the Speakers to abuse the Anti-defection laws.
First Published: April 1, 2016, 2:11 PM IST

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