Subiyah Hafeez Siddiqui and Arifa Hafeez Siddiqui
Introduction:
The Manipur Legislative Assembly recently witnessed what has become a norm in Indian politics: abuse of power, complete disregard of electoral mandate and violation of the constitutional process. The Speaker of the Assembly, Yumnam Khemchand Singh failed to attend to the application moved to disqualify eight members under Ⅹth Schedule[1], neglected repeated Supreme Court orders and defied a High Court directive. The Xth schedule recognizes two grounds[2] for disqualification: a) a member voluntarily gives up his membership or b) he votes or abstains from voting against the direction of the party to which he belongs.
Defection entails the practice of desertion of allegiance owed by the legislators to their political party. Defection is common in most democracies[3]. It affects the stability of the government and promotes corruption in the legislative organ. To curb the practice of defection, the Parliament passed the fifty second amendment to the Indian Constitution in 1985 and added the Xth Schedule.
Anti-defection law aimed at strengthening democracy provisioned for disqualification of members of both the houses of parliament and state legislatures on the grounds of defection. It entrusted the presiding officer of the house with unbridled power to decide on “any question as to whether a member of house has become subject to disqualification”.[4] According to the Schedule, the speaker’s decision on such matters would be final[5]. To prevent abuse of the power, the landmark case of Kihoto Hollohan v. Zachillhu and Ors.[6], laid down the principle that any decision of the Speaker or Chairman, as the case may be, would be subject to judicial review by the Supreme Court. However, the proposition was laid down with a caveat: that such a review is possible only after the case has been finally decided by the Speaker/Chairman. It is this caveat that has birthed the current state of affairs. Such absolute power of the Speaker has been contentious since the inception of the schedule in 1985. It has been grossly misused by the Speaker to further the agenda of the political party he/she belongs to resulting in repeated miscarriage of justice.
Blatant violation of mandate in Manipur:
After the 2017 Legislative Assembly elections in Manipur, Governor Najma Heptulla called upon the BJP[7] to form a coalition government despite the Congress leading them by 7 seats and falling short of just 3 seats from majority. The BJP formed a coalition government. After forming government, T. Shyamkumar of Congress defected to BJP and was given a cabinet position. Soon after, seven more Congress MLAs defected to the BJP. However, they continued to sit in the opposition and voted in favour of the ruling party. The Congress petitioned before the Speaker to disqualify these members under the provisions of the Xth Schedule, but their cries went over deaf ears. After sleeping on it for 3 years, the Speaker further neglected repeated orders of the Supreme Court. The Apex Court, employing its plenary powers, disqualified T. Shyamkumar and reprimanded the Speaker[8]in March 2020. However, seven members were still left unpenalized. To remedy the situation, the Congress moved the Manipur High Court to disqualify the other members. The High Court ordered the Speaker to decide the case at the earliest but after the Rajya Sabha election scheduled on 19 June 2020. The High Court barred the defected members from voting in the Rajya Sabha election and also restrained the defected members from entering the Manipur Legislative Assembly till the Speaker’s decision. In another development, National People’s Party, one Trinamool Congress MLA, one independent MLA walked out and four of the seven defected members rejoined Congress[9].
The Speaker, realizing the impact of the walkout, heard the petitions of disqualification and exonerated the three MLAs who did not rejoin Congress and allowed them to vote. Therefore, to further the political agenda, the Speaker not only abused his power but also defied the High Court directive.
Unbridled power of the Speaker and inadequacies of the Anti-defection Law:
The scenario as narrated previously exhibits the disability of the anti-defection law. The Speaker of the Legislative Assembly is elected by the newly elected members of the Legislative Assembly and thus, belongs to the ruling party. A Speaker is required to be fair, just, and unbiased. However, it was adequately pointed out in the Kihoto Hollohan judgment that the “tenure of speaker is dependent on continuous support of majority in the house”[10]. Hence, an inherent bias creeps in, owing to prior political affiliation. Paragraph 6 of the Xth Schedule makes the Speaker the ultimate arbiter of any question as to the disqualification of a member under paragraph 2. In the garb of acting fair, they espouse their political party backhandedly. Ultimately, the ruling party rules.
Furthermore, no maximum time period is allotted within which the question must be decided. It is after the exhaustion of this remedy that a judicial review of the High Court is viable. This loophole has repeatedly been exploited by Speakers. In the Manipur crisis, the Speaker did not attend to the question of disqualification of members for two and a half years. In fact, on pleading before the High Court, the Speaker cited his power of discretion as granted by paragraph 6. However, the Supreme Court held that,
“a failure to exercise jurisdiction vested in a Speaker cannot be covered by the shield contained in paragraph 6 of the Tenth Schedule, and that when a Speaker refrains from deciding a petition within a reasonable time, there was clearly an error which attracted jurisdiction of the High Court in exercise of the power of judicial review”.
Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly and Ors. [11]
These discrepancies in the Xth Schedule must be removed. The Supreme Court has asked Parliament to rethink the quasi-judicial authority of the Speaker under paragraph 6 when he continues to belong to a particular political party. The Supreme Court has also suggested the setting up of a “permanent tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court”[12] or any other independent body that Parliament may deem fit to decide questions arising under the X Schedule.
Manipur is not the only state currently dealing with the problem of defection. In the State of Karnataka, in 2019, 17 MLAs defected to the BJP from the Congress-JD-S led coalition government. The then Karnataka Assembly Speaker K. R. Ramesh Kumar disqualified them and barred them from contesting election till 2023. The Supreme Court, moved by the disqualified and barred members, held the defection valid. and the actions of the Speaker as ultra vires[13].
This reflects another defect in an already defective anti-defection law. Neither the Constitution nor any other statute bars members disqualified under Xth Schedule from contesting elections. This empowers the disqualified members to use this loophole as a detour via which they can come back through by-election[14]. The Karnataka Assembly Speaker in order to remedy this situation acted ultra vires and barred them for the life of the House.
Conclusion:
Position of the Speaker is therefore peculiar. He enjoys absolute power to decide the fate but is completely powerless to actually provide a practical solution. He has unbridled power to decide on the question of disqualification of an impugned member but is rendered rather helpless when the said member employs legal loopholes to get re-elected.
To keep a check on absolute power of the Speaker and for complete disposal of this issue, an independent adjudicating body headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court needs to be established as per the suggestion of the Supreme Court[15]. Such an independent adjudicating body must also be empowered to bar members disqualified under X Schedule from contesting by-elections till the life of the House. This would ensure that the disqualified members do not relay back into the House with the ticket of the party they had defected to thus, making a complete mockery of the system. mechanism must also be put in place to limit the time period within which any question arising as to the disqualification of the member is decided. This in turn would result in effective application of the anti-defection law.
Subiyah Hafeez Siddiqui is a third year student enrolled at the Rajiv Gandhi National University of Law, Punjab, and Arifa Hafeez Siddiqui is a fourth year student enrolled at the Dr. Ram Manohar Lohiya National Law University, Lucknow.
[1] India Const. sch. X.
[2] Id. at ¶2.
[3] Defection is a big problem in Australia, Nigeria, and Kenya. See: Sarah Miskin, Politician Overboard: Jumping the Party Ship, 4 APO (2003).
[4] India Const., supra note 1, at ¶6.
[5] Id at ¶6.
[6] Kihoto Hollohan v. Zachillhu and Ors., AIR 1993 SC 412.
[7] BJP won 21 seats.
[8] Keisham Meghachandra Singh v. The Hon’ble Speaker, Manipur Legislative Assembly and Ors., (2020) SCCOnLine SC 55.
[9] Pradip Phanjoubham, Gross Abuse of the Manipur Mandate, THE HINDU (Jun 23, 2020), https://www.thehindu.com/opinion/lead/the-gross-abuse-of-the-manipur-mandate/article31873142.ece.
[10] Kihoto Hollohan, supra note 5.
[11] Keisham Meghachandra Singh supra note 8.
[12] Id.
[13] Shrimanth Balasaheb Patil v. The Hon’ble Speaker, Karnataka Legislative Assembly and Ors., (2019) SCCOnLine SC 1454.
[14] S. Y. Quraishi, When Defection is a Mere Detour for an MLA, THE HINDU, (Jul 1, 2020), https://www.thehindu.com/opinion/lead/when-defection-is-a-mere-detour-for-an-mla/article30463693.ece.
[15] Keisham Meghachandra Singh supra note 8.
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