Authored by Shubham Thakare, a 2nd-year law student at NLSIU, Bangalore
Introduction
The Speaker’s office often finds itself entangled in the very politics it seeks to rise above. In 2016, the Supreme Court, in its landmark judgment in Nabam Rebia v. Deputy Speaker expressed concerns about the Speaker’s political neutrality in deciding on disqualification proceedings under the tenth schedule. This ruling was recently referred to a larger seven-judge bench for reconsideration in Subhas Desai v. Principal Secretary. One of the primary reasons behind this referral was the judgment’s conflict with another landmark judgment in Kihoto Hollohan, where it was observed that there lay no basis for the court to cast doubt on the Speaker’s impartiality in adjudicating disqualification proceedings. This brings forth two pertinent questions for us to ponder over: Is the Speaker impartial in practice? And if not, how can we ensure that parliamentary proceedings remain unbiased, especially in matters of disqualifications?
Legal scholarship has answered the first question in the affirmative. The Speaker is elected by a majority of the members of the Lok Sabha at the central level and by those of the Vidhan Sabha at the state level. This means that the ruling party typically decides on who the Speaker will be. Although the office of the Speaker is theoretically a constitutional post, it has for all practical purposes become a political tool for the ruling party to exploit for its own benefit. This is even more apparent in the context of disqualification proceedings under the tenth schedule, as I will show below, where Speakers have delayed or expedited decisions to suit the ruling party’s interests.
The Speaker’s impartiality is integral to the effective functioning of legislative procedures at both the central and state levels. The proper functioning of these procedures lies at the heart of democracy, as it is in the legislative houses that our elected representatives debate and make laws. Speaker’s bias in deciding defections is said to be one of the reasons for the failure of the Anti-Defection Law (the Tenth Schedule) to curb defections. If the ruling party continues to misuse the speaker’s post to escape accountability and facilitate defections, it could spell a troubling future for our constitutional democracy. This makes the second question on making parliamentary proceedings unbiased ever more pertinent — and this is precisely the question I attempt to address in the present article.
The article is divided into two parts: In the first part, I examine various proposals given by courts, legal scholars, and law commissions to address the problem of the Speaker's partiality. Most of these suggest replacing the Speaker with another authority to decide on defections. I argue why these proposed solutions may not be as effective as they appear at first glance. In the second part, I put forward an approach that has been largely overlooked in mainstream scholarship: instead of replacing the Speaker as the bearer of disqualification powers, we should reform the role of the Speaker itself to cultivate conditions conducive to genuine neutrality. For this, I analyse the office of the Speaker of the British House of Commons— and draw some key lessons from it for India.
Proposals to Address Bias in Disqualification Proceedings in Speaker's Office
Predominantly, two solutions have been put forward to resolve the problem of bias by the Speaker in disqualification proceedings under the Anti-Defection Law. These are: (i) Establishing and transferring this power to an Independent Judicial Tribunal and (ii) Transferring this power to the Election Commission of India. Each of these suggestions seeks to replace the Speaker with an alternate authority for deciding on defections.
Independent Judicial Tribunal
A possible solution to address the potential of bias when the Speaker of the House is tasked with deciding on the Anti-defection Law is to give this power of a speaker to an independent judicial tribunal. The court, in the case of Kihoto Hollohan, recognised that the speaker, when deciding on defections under the Anti-Defection law, acts as an adjudicatory tribunal. However, the dissenting opinion in the same judgement outlined that this was problematic. This was because the Tenth Schedule granted the Speaker not only the authority to adjudicate defection disputes but also the final say on them, with no provision for appeal or review by an independent body. This accumulation of power in the hands of the Speaker was seen to pose a risk to the impartiality required in just and fair adjudication since the speaker remains an active participant in the political processes they are supposed to judge. Their election by the ruling party and the dependence of their tenure on the majority's support created a situation where the Speaker's decisions may be influenced by partisan considerations.
In a subsequent judgment in Keisham Meghachandra Singh v. Hon'ble Speaker, the Supreme Court suggested that the Parliament should explore amending the Constitution to replace the Speaker with a permanent adjudication tribunal headed by a retired Supreme Court Judge or another independent authority.
While a tribunal might indeed offer more impartiality than the speaker, there is a risk that this could lead to delays in decision-making. The speaker is an integral part of the legislative process, and being so, he is typically well-positioned to make quick decisions. In contrast, the judges of an external tribunal would require additional time to understand the facts of each case before them and would hand out a delayed decision. Furthermore, the proposal is likely to face significant political resistance. Members of Parliament, especially from the ruling party, might most probably oppose this idea as it could be seen as diminishing the legislative branch's privilege over its proceedings. This resistance would make it difficult to secure the necessary support to pass the requisite constitutional amendments.
Election Commission of India
The Dissenting opinion in Kihoto observed that the members of the constituent assembly seem to have deliberately assigned the responsibility for deciding disqualification disputes to the President or Governor, acting on the advice of the Election Commission of India (ECI) in Articles 103 and 192. The members believed that the Speaker of the House might not exercise impartiality in such matters since he is inherently linked to the majority party and his tenure depends on the majority’s support. Yet, despite this background, the Parliament in passing the Anti-Defection law vested the power to decide on defections solely in the Speaker. This step led to problems with the functioning of the law since it opened it up for exploitation by the ruling party.
There have been recommendations that akin to the power to decide on other disqualifications outlined in Articles 102 and 191, the power to decide on disqualification under the 10th Schedule must also be given to the President/Governor in consultation with the ECI. The National Commission to Review the Working of the Constitution (para 4.18) observed that the Election Commission of India would serve as a more neutral adjudicatory body than the Speaker, who is inherently a political figure. The Dinesh Goswami Committee on Electoral Reforms (para 1.4.2), the 255th Report of the Law Commission of India (para 5.22) and even the Election Commission of India itself have also echoed this sentiment.
There is, however, a problem with this approach as well. This approach assumes that the Election Commission of India would serve as a more neutral body than the speaker. However, in recent times, the ECI itself has increasingly become an institute embroiled in controversy. Opposition leaders have often voiced their distrust in the Election Commission of India (ECI), arguing that it is biased towards the ruling party due to alleged interference by the latter. This concern isn't limited to politicians; several scholars of law and political science have also levied these claims. Given the challenges to its current credibility, transferring the power of disqualification under the 10th Schedule to the ECI may not effectively address the problem of bias (whether actual or perceived).
Creating a Non-Partisan Speaker: Lessons from the UK for India
An often-overlooked approach when addressing the Speaker’s bias in deciding defection-based disqualifications is reforming the office of the Speaker itself to make it less susceptible to being partial. This solution could prove to be more practical than simply replacing the Speaker with an alternative adjudicatory body, as seen in the previous part since it would also promote impartiality in proceedings beyond defection-related disqualifications.
How can we make the Speaker less biased? We can take inspiration from the UK Parliament—the country on which we have modelled our parliament. While we did inherit the Speaker’s office, we did not adopt the conventions in the UK that ensure the office’s impartiality.
In the UK, constitutional conventions exist around the office of the Speaker to ensure their impartiality and neutrality. These have developed over time with support from both the ruling and opposition parties. Albert Austen in his paper has highlighted the following conventions: Firstly, the British Speaker receives a salary of £5,000 annually, a pension of £4,000, and a peerage upon retirement. This salary is paid from the Consolidated Funds independent of Parliament's annual vote. Secondly, although the Speaker is elected, they are typically re-elected regardless of whichever party is in power. The Speaker stands for re-election as "the Speaker," and does not involve himself in active campaigning on political issues. Major political parties have rarely opposed the speaker on their re-election and this continuity has only been disrupted once in the 19th century. Even apart from these two conventions, upon election, the Speaker of the House resigns from their political party and distances themselves from former party colleagues, avoiding associations with any particular group or interest within the House. They also do not frequent the Commons dining rooms or bars. Former Speakers also do not return to active party politics. Even when they are appointed to the House of Lords, they sit as Cross-Benchers.
There have been attempts in India to make the Speaker’s office impartial, but success on that front has been limited. Vithalbhai Patel, India's first Indian Speaker in 1925, attempted to set a precedent of being impartial by occasionally going against his own party’s stance, and later contesting as an independent in his re-election. Neelam Sanjiva Reddy followed suit post-independence, resigning from Congress upon becoming the Speaker. However, these actions have been the exception rather than the norm. Nearly all former Lok Sabha speakers have retained their party membership during their tenure, and as a result of this have faced conflicts between their constitutional duties and party loyalty. Perhaps the best example of this is Somnath Chatterjee’s case in the 2008 No-Confidence vote against the UPA Government. Chatterjee was a member of the CPI(M) but was compelled by the party’s whip to vote against the UPA. Chatterjee did not follow the whip to vote against the UPA and instead took on an impartial role as the speaker to oversee the vote. Post this, he was expelled from his party.
However, unlike Chatterjee, not all Speakers would choose to uphold the Constitution over their party. Recently, the Speaker’s role fell into controversy in Karnataka, Telangana, Arunachal Pradesh, and Manipur due to them allegedly being biased towards the party during disqualification proceedings under the Tenth Schedule. Even apart from the speaker not resigning on his election, Speakers often face contested re-elections, as seen with Om Birla, who won by a narrow margin of 3% this year. Many Speakers remain politically active after their tenure, with G.S. Dhillon and Balram Jakhar even going on to become ministers.
To address these issues, India must evolve conventions similar to those in the UK to promote the speaker’s impartiality. There are already a few provisions in place to support this: Rule 5 of the Tenth Schedule exempts the Speaker from disqualification for defection when they resign from their party due to their election as a speaker. Moreover, the speaker only votes in the house in case of a tie. Evolving these conventions would no doubt take time – but in the short term, some legal changes might be necessary to accelerate their development. These can enhance the Speaker’s perks and pensions to deter them from seeking post-retirement benefits, mandating speakers to resign from their party once they get elected, etc.
As we conclude, it is important to note that while these steps can help promote the speaker’s impartiality, they are by no means sufficient on their own. For complete impartiality, it is essential that political parties, who are the main actors in our country’s political system, recognize that the Speaker is not merely a tool for the ruling party but rather is a facilitator for fair representation in parliament. Understanding this will benefit them when they find themselves as the opposition.