INTRODUCTION
The Tenth Schedule of the Constitution of India, 1950 (COI) – the “Anti-Defection Law” – was enacted with the intention of preserving the integrity of the parliamentary system by curbing opportunistic defections [Kihoto Hollohan v. Zachillhu, para-53]. One of the crucial actors in this process is the Speaker, whose pivotal role in determining the fate of defecting legislators has often been brought into focus. One such instance is the landmark judgment of Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (hereafter, “Nabam”), where it was held that it is impermissible for Speaker to adjudicate upon disqualification petitions after a notice to move a resolution for their removal from the office of the Speaker was issued [para-194]. However, this rule has recently been challenged in Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors (hereafter, “Subhash”) as it defeats the purpose of the Tenth Schedule by being prone to misuse by MLAs apprehending disqualification. This raises crucial questions that demand careful consideration.
This article aims to critically analyse the verdict propounded in Subhash. To this end, this article firstly, gives a brief overview of the reasons provided in Subhash for referring Nabam to a larger bench. Secondly, it highlights the inconsistencies present in the application of these reasons. Lastly, it argues that the interim measure proposed in this verdict is unconstitutional as it violates the maxim ‘nemo judex in causa sua’.
CASE BACKGROUND
In 2019, head of the Maha Vikas Aghadi (hereafter, “MVA”) and Shiv Sena leader, Mr. Uddhav Thackeray, was sworn in as Maharashtra’s Chief Minister [Subhash, para-3]. Later in 2022, Mr. Eknath Shinde, the leader of Shiva Sena Legislative Party, went missing with some MLAs and refused to attend party meetings stating that MVA was no more in consonance with Shiv Sena’s ideology. Consequently, the Thackeray-faction initiated disqualification proceedings against the rebel group. Concurrently, MLAs from the Shinde-faction issued a notice to the Deputy Speaker, Mr. Narhari Zirwal, calling upon him to move a motion for his removal from the Speaker’s office, however, right after notice was issued, Mr. Zirwal issued notices in the disqualification petitions. Ultimately, one of the questions before the SC was whether the ratio propounded in Nabam was valid or whether Nabam merits reference to a larger bench [Subhash, para-36].
REASONS PROPOUNDED FOR REFERRING NABAM TO LARGER BENCH
In Subhash, essentially three reasons were offered to substantiate why Nabam merits reference to a larger bench. Firstly, the ratio propounded in Nabam comes in direct conflict with that of Kihoto Hollohan v. Zachillhu (Kihoto) [para-74]. This is because it was held in Kihoto that there exists no reason to be suspicious of the Speaker’s impartiality when required to adjudicate on disqualification proceedings. Further, it was held that it is unsuitable to express distrust in the Speaker’s Office [Kihoto, para-118]. In contrast to this, Nabam is actively doubtful of the Speaker’s political neutrality when deciding disqualification notices amidst pending proceedings regarding their removal. It goes on to say that the Speaker’s decision on disqualification petitions may often be influenced by political considerations [Nabam, para-193]. Therefore, this contradiction warrants resolution.
Secondly, the interpretation of the phrase “all the then members”, in Article 179(c), which was proposed in Nabam, is erroneous [Subhash, para-74]. Nabam propounded that the rejection of Mr. Mohd. Tahir’s proposition of replacing this phrase with “all the members of the Assembly present and voting” by the Constituent Assembly implies that the phrase meant that composition of the Assembly ought to remain unchanged after notice was issued under Article 179(c). However, Subhash proposes that such a view is misguided as during the Constituent Assembly debates, Dr. Ambedkar had clarified himself that ‘all the then members’ essentially refers to all those members of the house whose seats are not vacant at the given point of time. Therefore, there is no need to ensure that the Assembly’s composition remains unaltered.
Thirdly, the bench believed that Nabam did not extensively deliberate upon the fact that, in light of the ratio proposed in the case, MPs and MLAs apprehending disqualification proceedings can maliciously issue notice for removal of the Speaker, merely to deter disqualification proceedings [Subhash, para-74]. This will eventually lead to a temporary disablement of the Speaker’s office thereby, resulting in a constitutional hiatus.
On account of these reasons, SC ruled that Nabam must be referred to a larger bench.
INCONSISTENCIES PRESENT IN REASONING FOR REFERRING NABAM TO A LARGER BENCH
Firstly, this article argues that while the bench in Subhash acknowledges the conflict that exists between Kihoto and Nabam, it is not cognizant of the same when propounding the interim measure. In spite of the conflict between the two landmark cases of the same bench strength, the SC has implicitly endorsed the position propounded in Kihoto by entitling the Speaker with the power to determine the credibility of the motion moved to remove them from office [Subhash, para-76]. This is concerning as it has the effect of romanticising the position of the Speaker while placing unreserved conviction in the institution. Consequently, it has not adequately addressed the possibility of the Speaker’s inability to disassociate themselves from their political party.
Secondly, this article argues that there is a need to re-evaluate the opportunity cost of permitting Speaker to exercise their power under the Tenth Schedule while proceedings regarding their removal are pending. This is because, as acknowledged in Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly(hereafter, “Shrimanth”) and Nabam, there are various instances where the Speaker has acted in contradiction of their constitutional duty of being impartial by furthering personal political considerations [Srimanth, para-154]. Therefore, it is completely viable that the Speaker may misuse its power to adjudicate on disqualification proceedings when notice for its removal has been issued. Consequently, the exercise of such power is likely to prejudice MLAs facing disqualification as disqualified MLAs would no longer possess the right to vote in the motion for Speaker’s removal, even if their disqualification orders are later set aside [Subhash, para-59]. Further, the SC has not offered any coherent legal reasoning for classifying one form of misuse as more flagrant than the other.
Therefore, it is argued that the reasons proposed for referring Nabam to a larger bench require further deliberation.
UNCONSTITUTIONALITY OF THE INTERIM MEASURE
In Subhash, the SC went ahead to propose an interim measure to be applicable until any decision was taken on the constitutionality of Nabam. The measure proposed states that upon receiving a notice for their removal, the Speaker will be entitled to adjudicate whether the motion for removal is well-founded or not [Subhash, para-76]. If the Speaker is of the opinion that the motion is legitimate, they may adjourn disqualification proceedings under the Tenth Schedule until verdict for their removal is decided. However, if the Speaker considers the motion to be malicious in nature, they can continue to proceed with the hearing.
This measure is unconstitutional on the ground that it is in violation of the principle ‘nemo judex in sua causa’ i.e., ‘no one should be permitted to be a judge in their own cause’. This maxim is one of the core principles of natural justice [AK Kraipak v. Union of India, para-20], contravention of which is considered to be a violation of the rule of equality before the law under Article 14 [DK Yadav v. JMA Industries, para-12]. Permitting the Speaker to adjudge the credibility of the motion defeats the purpose behind introducing principles of natural justice, i.e., to prevent miscarriage of justice [AK Kraipak, para-20]. Additionally, as acknowledged in Shrimanth, the political neutrality of the Speaker cannot always be ensured. This gives rise to a discrepancy between Speaker’s position as a political figure and role assigned to them, based on the premise of impartiality. Consequently, this mismatch is bound to increase litigation, thereby leading to a time lag and infructuous remedies.
Several critics may refute this argument by arguing that this maxim is inapplicable in the present scenario on account of the doctrine of necessity. This provides that a person who is subject to removal may adjudicate the same in case no other competent authority or institution is available [J Mohapatra v. State of Orissa, para-12]. However, in the given scenario, the Speaker is not the only institution capable of deciding the bona fide nature of the application issued to remove them. Another possible alternative is courts.
This claim may be rebutted by critics through application of Article 212, which provides that the validity of State legislature’s proceedings cannot be questioned merely on the ground of irregularity of procedure. However, this article refutes this claim on two grounds.
Firstly, this kind of intervention by courts would not fall under the purview of “proceedings”. It was held in Mohd. Saeed Siddiqui v. State of UP that ‘proceedings of the legislature’ would include everything that is done in either of the Houses during a transaction of parliamentary business [para-34]. This does not hold well in the present case as what the courts will potentially interfere with is whether the application should be admitted or not. Such adjudication does not constitute a part of parliamentary business as it anyway does not require any input from or voting within the house and instead, will be done by courts at their discretion.
Secondly, the current legal position permits proceedings of Legislative Assemblies to be brought into question in a court of law if they suffer from not merely irregularity of procedure, but also an illegality or unconstitutionality [Special Ref No. 1 of 1964, para-61]. By violating the principle of natural justice, the interim measure contravenes Article 14 as well and is thus, unconstitutional. Hence, on account of this unconstitutionality, courts are entitled to interfere in legislative proceedings.
Therefore, this article asserts that this interim measure proposed is unconstitutional and thus, must be set aside.
CONCLUSION
Upon critically analysing the reasons proposed for referring Nabam to a larger bench, this article argues that, through these reasons, the judiciary has romanticised the Speaker’s office to such an extent that it has reposed blind faith in this institution based on a misguided premise of political neutrality. However, such a premise is ignorant of the fact that the Speaker continues to remain affiliated with their political party and thus, may take decisions based on political considerations. Additionally, even the interim measure proposed in Subhash relies on the neutrality and impartiality of the Speaker when it proposes that the Speaker can equitably adjudge the credibility of the motion moved to remove them from office. This article conclusively argues that these concerns warrant further deliberation and it is imperative that the SC takes these into consideration in the upcoming hearing of Subhash before a 7-judge-bench.
The author is a 2nd year student of National Law School of India University, Bangalore
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