A law for lawlessness

In a notable judgment of Keisham Meghachandra Singh v. The Hon'ble Speaker, the Supreme Court gave certain valuable suggestions which should catalyse a public debate about the need for amendments in the anti-defection law. The judgment lays down the foundation for the Constitution Bench to decide the pending question of law on its jurisdiction in ordering the Speaker on disqualification proceedings.

The anti-defection laws have been under scrutiny for ineffective implementation and this judgment is expected to furnish them with resuscitated vigour.

The March 2017 elections of the Manipur Legislative Assembly resulted in a hung assembly, with the Indian National Congress emerging as the single-largest party winning 28 seats, three short of the requisite majority. However, in a dramatic turn of events, the BJP with 21 seats formed the government on being invited by the Governor, an action becoming more and more commonplace as seen both in Karnataka and Maharashtra in 2018 and 2019 respectively.

In Manipur, the judgment is specific to Shri TS Singh, a candidate nominated as a Congress representative and elected as such, who switched to the BJP before it was invited to form the government. Once the BJP staked a claim and was invited, he was sworn-in as a minister in the BJP-led government and continues to hold that office.

Subsequently, thirteen applications were filed before the Speaker of the Manipur Lower House asking for his disqualification under Para 2(1)(a) of the Tenth Schedule. The applicants' move of approaching the High Court was unsuccessful, which reasoned that the same question of law was already pending before a Constitution Bench of the Supreme Court.

The High Court further observed that exhaustion of the alternative remedies available in the Tenth Schedule is a prerequisite before approaching a court of law. If such alternative remedy is found to be ineffective due to deliberate inaction or indecision on the part of the Speaker, the Court cannot be denied jurisdiction to issue an appropriate writ to the Speaker. Consequently, the applicants moved the Supreme Court, in Keisham Meghachandra Singh.

The fear of a Speaker shedding the celebrated designation of a Constitutional functionary and acting along partisan lines was first expressed by former Chief Justice of India JS Verma in his minority judgment in the landmark case of Kihoto Hollohan v. Zachillhu. Verma J. had observed thus:

"The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, the likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has the adjudicatory disposition and therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes."

The same fear was reiterated in the present case of Keisham Meghachandra Singh, wherein the Court said:

"It is time that Parliament has a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto. Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as an arbiter of disputes concerning disqualification which arise under the Tenth Schedule."

The issue of Constitutional functionaries breaking uncodified Constitutional conventions and acting on partisan lines falls beyond the line of unconstitutionality but falls short of fulfilling constitutional morality.

Another holding of the Kihoto Hollohan case was that judicial review cannot be available at a stage before the making of a decision by the Speaker/Chairman. The same was reiterated by the three-judge bench in the present case of Keisham Meghachandra Singh.

"Nor would interference be permissible at an interlocutory stage of the proceedings. An exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence."

The above holdings require that proceedings shall be complete before petitioners approach the courts. This means that a Court cannot be approached between or even before a proceeding.

The Supreme Court in Keisham Meghachandra Singh opined: "Parliament may seriously consider amending the Constitution to substitute the Speaker… as an arbiter of disputes concerning disqualification … with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court or some other outside independent mechanism…"

In Keisham Meghachandra Singh, the Court noted that while the Constitution or any other statute does not prescribe a strict time, a Speaker cannot sit on a disqualification petition indefinitely. Such a petition would need to be decided within a reasonable time.

The Court, however, went one step further in this instance, and defined what it meant by reasonable time was, in the absence of any exceptional circumstances, a period of three months for the Speaker to decide on the petition.

The Court based its reasoning on Rajendra Singh Rana v. Swami Prasad Maurya, wherein the Supreme Court had observed that a person who incurs disqualification under the Tenth Schedule does not deserve to be a member of Parliament or Legislative Assembly even for a single day, thus concluding that the three month period was generous.

Dr Ambedkar believed in the institutionalisation of every step and was aware that unwritten rules and conventions based on good faith leave a gap that could be potentially misused by constitutional functionaries. Their repeated breaches of constitutional conventions have created a capacious space being filled by judicial supremacy. It should instead be filled by constitutional morality, by making guidelines for the functioning of the Speaker.

We also suggest the addition of a layer of scrutiny or review to the Speaker's functioning. Article 192 provides for any question of disqualification under Article 191(1) to be referred to the Governor, whose decision, after taking the binding opinion of the Election Commission, shall then be final. This adds not one but two layers to the decision of disqualification, one of the Governor, who might work on partisan lines and then of the Election Commission, which is an autonomous organisation.

This is despite the fact that disqualifications under Article 191(1) are relatively more straitjacket and objective, compared to disqualifications as provided for by Article 191(2). We suggest the Governor be added as a mandatory layer of scrutiny to the Speaker's decision of disqualifying a member under the Tenth Schedule. On one hand, it is a democratic process upholding the Parliamentary conventions at the same time obviating judicial interference and judicial supremacy.

Views expressed are strictly personal