In a landmark judgement, the Hon’ble Supreme Court (RF Nariman, Anirudha Bose and V Ramasubramanian, J.J) has asked Parliament to “have 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 political party either de jure or de facto.”

These directions are truly a landmark, considering the provisions of Articles 212 and 122, whereby courts have virtually no jurisdiction over legislative proceedings and even while deciding cases under the anti-defection law, have avoided giving any specific directions. In the case in question relating to Manipur, the petitioner has been asked to come back to the court in case no decision is taken by the Speaker within four weeks.

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In a way this amounts to giving a direction to the Speaker, though in a very subtle manner. Under the chairmanship of the Lok Sabha Speaker, Mr Om Birla, the presiding officers of various legislatures had met at Dehradun on 18 December last. As per reports in the media, the Lok Sabha speaker appeared to be in favour of amendments to the anti-defection law. The fundamental issue, which quite a few of the Speakers have not been able to address, is not all that complex.

It has so become, in view of an inherent conflict of interest. As Speakers after assumption of the high office do not severe their links with parent parties, a conflict of interest manifests in different forms, including bias, in several cases under the anti-defection law.

In the case of the Speaker of the Manipur legislative assembly, the Hon’ble Supreme Court while recommending an independent tribunal has gone back to the classic enunciation which appeared as the minority view in Kihoto Hollohan vs Zachillhu (1992), where inter alia it was observed that adjudication of such a dispute should not be by the Speaker but by an independent authority outside the House, namely President/Governor in accordance with the opinion of the Election Commission, all of them being high constitutional functionaries.

On the other hand, the majority judgement in this case led by then Chief Justice of India, MN Venkatachaliah, held, “Accordingly, we hold that the vesting of adjudicatory functions in the Speakers/ Chairmen would not by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speaker/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and (are) guardians of the rights and privileges of the House.

They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy.” Though it is a different matter that the author of these views, CJI Venkatachaliah revised his stand while chairing the Commission to review the working of the Constitution and supported an independent agency like Election Commission to decide on proceedings under the anti-defection law. This was, however, not accepted.

The very visible bias of some Speakers in favour of their parent political parties has led to several controversies which have manifested in the shape of malpractices in the legislatures as well as political instability and sometimes continuation for long durations of minority governments formed on the strength of defectors. The partisan role played by some speakers has brought out the darker side of politics where every loophole in the text of the statute is attempted to be exploited against the fundamental objectives of the anti-defection law.

No wonder there is such a clamour these days amongst coalition partners to first secure the post of Speaker for their own party. It is not as if realisation of such a bias has not been there. As early as 1951, the conference of presiding officers of legislative bodies in India had recommended that a convention should be established ~ that the constituency of the Speaker should not be contested, and he should be returned unopposed. Further, he should not take part in party politics.

Such was indeed the situation before independence as the presiding officers from Vithalbhai Patel onwards dissociated themselves from parties. In order to save the high office of the Speaker from any embarrassment, there used to be a convention in the House of Commons that in a subsequent election to Parliament, no party fielded a candidate against him/ her. Also, having resigned from the parent party, he/she would contest only as a Speaker. In case he/she was not re-contesting, usually, he/she would be elevated to the House of Lords.

Some of these conventions have since been diluted but in our context need to be studied for strengthening the office of the Speaker and ensuring his/her neutrality. As of now, there are several suggestions for swift, impartial and fair action under the antidefection law. Amongst others, these include amending the law, constituting an independent tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a High Court or some other outside independent mechanism.

It is suggested here that before we consider all these proposals which might require a constitutional amendment (Anti Defection Law being an integral part of the Constitution in its Xth Schedule) Speakers as well as deputy Speakers should essentially avail of the exemption already provided for in Section 5 of the Anti-Defection Law, which enables them to severe links with their political parties. After being elected to the post of a Speaker or a Deputy Speaker, in case they resign the membership of their political party, under this provision they would be exempted from disqualification.

To date, no Speaker or Deputy Speaker, except in one case, has made use of this provision to severe their political links. It is high time that before considering other options, use may be made of this built-in provision in the Anti Defection Law which was included in the text, just for such exigencies. The legal provision is already on the statute book. Who will take the lead?

(The writer is a former Governor and a Sr Advisor at the Pranab Mukherjee Foundation)