The Supreme Court has said that Parliament should “rethink” whether the Speaker of a House should continue to have powers to disqualify lawmakers as such a functionary “belongs to a particular political party”.

Parliament may seriously consider amending the Constitution to substitute Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disqualification issues with “a permanent tribunal headed by a retired SC judge or a retired Chief Justice of a High Court” or some other mechanism to ensure swift and impartial decisions, the SC said.

A Bench headed by Justice R.F. Nariman took note of the role played by Speakers and inordinate delays in deciding pleas for disqualification of lawmakers.

What was the context of the SC observation?

The SC was hearing a case challenging the Manipur High Court verdict, which refused to direct the Speaker to decide the plea for disqualification of a rebel Congress MLA.

In the 2017 Assembly election in Manipur, the Congress emerged as the single largest party, winning 28 seats in the 60-member House, while the BJP came second with 21 seats.

However, a BJP-led government was sworn in and Congress MLA Th Shyamkumar switched sides and became a minister. This led to the filing of pleas with the Speaker seeking the MLA’s disqualification under the anti-defection law.

The plea is still pending with the Speaker.

As a result, Congress leaders first approached the HC and then the apex court.

The HC had refused to direct the Speaker to decide the plea on the ground that the “very same issue” whether the Speaker can be directed by the courts to decide disqualification was pending adjudication before a five-judge bench of the apex court.

What did the SC say about the plea?

The apex court directed the Speaker to decide within four weeks the plea of Congress leader Keisham Meghachandra Singh seeking Shyamkumar’s disqualification.

“A time has come when Parliament should 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 particular political party either de jure or de facto,” the SC said.

“Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule 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 to ensure that such disputes are decided both swiftly and impartially, thus giving real teeth to the provisions contained in the Tenth Schedule, which are so vital in the proper functioning of our democracy,” said the Bench, which also comprised Justices Aniruddha Bose and V. Ramasubramanian.

Anti-defection law

The Tenth Schedule, which is known as the anti-defection law, was inserted in the Constitution in 1985 by the 52nd Amendment Act.

It lays down the process by which legislators may be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House.

A legislator is deemed to have defected if he / she either voluntarily gives up the membership of his / her party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his / her membership of the House. The law applies to both Parliament and Assemblies.

A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a state if he / she is so disqualified under the Tenth Schedule.

Recent case of disqualification

In November 2019, the SC allowed the 17 disqualified Congress-JD(S) MLAs to contest bypolls in Karnataka even as it upheld the Speaker’s action after their rebellion led to the fall of the H.D. Kumaraswamy government and the return of the BJP to power.

The court struck down the portion of the order of the then Speaker K.R. Ramesh Kumar by which the MLAs were disqualified till the end of the current term of the Assembly in 2023.

Kumar disqualified the 17 legislators - 14 from the Congress and three from the JD(S) - ahead of the trust vote on July 23. Kumaraswamy resigned after losing the trust vote, which paved the way for the BJP-led government under B.S. Yediyurappa.

However, the law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

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