While granting interim relief to rebel MLAs of the Shiv Sena on Monday, the Supreme Court made a crucial but unusual judicial intervention that raises questions on the powers of the Speaker under the Tenth Schedule of the Constitution. The Speaker’s powers under the Tenth Schedule have been previously upheld by the Supreme Court itself; the court has allowed judicial review only once the Speaker has made a decision, and has ruled out interference with the process.
The question of when a floor test will be held in the Maharashtra Assembly, meanwhile, remains unclear. BJP leader Devendra Fadnavis met Governor Bhagat Singh Koshyari late on Tuesday.
What does the interim order say?
The interim order grants more time to the rebel MLAs — until July 11 — to reply to the disqualification notice served on them. It seeks affidavits from them, and also a counter-affidavit from the Deputy Speaker on his removal as demanded by the rebels.
In granting more time, the Supreme Court has essentially delayed the disqualification proceedings, which would have a direct impact on a
trust a vote in the Assembly, whenever it takes place.
The issue of considering the removal of the Deputy Speaker himself is more complex and raises questions on the sanctity of the Tenth Schedule.
What does the Tenth Schedule say?
The Tenth Schedule or the anti-defection law, introduced in 1985, gives the Speaker of the House the power to disqualify legislators who ‘defect’ from the party. In the landmark case Kihoto Hollohan versus Zachillhu in 1992, the Supreme Court upheld the power vested in the Speaker and said that only the final order of the Speaker will be subject to judicial review.
Courts have refrained from interfering with the process itself.
However, a 2016 ruling of a Constitution Bench of the Supreme Court has shifted the balance on the powers of the Speaker. In the landmark Nabam Rebia v Bemang Felix case, concerning a constitutional crisis in Arunachal Pradesh then, a five-judge Bench of the SC limited the Speaker’s powers.
What was the Nabam Rebia ruling?
While the larger legal issue in the Nabam Rebia ruling was on the contours of the powers and limitations of the Governor, the issue of anti-defection also came up. On that point, the Supreme Court held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings, if a no-confidence motion against him is pending.
“The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule, whilst a notice of resolution for his own removal, from the office of Speaker is pending, would ‘appear’ to be unfair. If a Speaker truly and rightfully enjoys the support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature, repose in him,” the Supreme Court ruled.
This ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification dates are anticipated — effectively tying the hands of the Speaker.
Have legislators used this legal route?
Yes, since 2016, this legal route has been a familiar playbook for legislators cutting across states and political affiliations.
In 2016, rebel MLAs of the Congress including Vijay Bahuguna sought removal of Uttarakhand Assembly Speaker Govind Singh Kunjwal after shifting ranks to the BJP to stall anti-defection proceedings.
In 2018, AIADMK legislator S Karunas sent a notice to the Tamil Nadu Legislative Assembly Secretary K Srinivasan, seeking removal of Speaker P Dhanapal at a time when the AIADMK leadership was mulling action against Karunas and three other MLAs for having pledged their support to TTV Dhinakaran .
In June 2020, the Congress in Manipur served a notice for the removal of Speaker Y Khemchand as nine of its MLAs defected to the BJP.
How can the Speaker be removed?
Under Article 179 of the Constitution, a Speaker can be removed by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”. The process begins with notice of at least 14 days.
In the 2016 Nabam Rebia ruling, the Supreme Court interpreted Article 179, specifically the term “all the then members of the Assembly”, to mean the composition of the house at the date/time of giving the notice for the removal of the Speaker. This interpretation would mean that the composition of the Assembly cannot be changed from the date of issuing of a notice of the removal of the Speaker, and therefore the Speaker cannot make any decisions under the Tenth Schedule to change the composition of the House until the question of his removal is settled.
During the hearing on the Maharashtra situation, senior advocate Neeraj Kishan Kaul, appearing for the rebel Shiv Sena MLAs, referred to the 2016 Nabam Rebia ruling to argue that the Deputy Speaker of an Assembly cannot decide on disqualification of MLAs while a motion for his or her removal is pending.
What were the reasons for the Supreme Court’s 2016 decision?
The Supreme Court’s reasoning in barring the Speaker from acting under the Tenth Schedule when a notice for his own removal is pending, is to ensure that the Speaker who disqualifies legislators must enjoy the confidence of the Assembly.
“After all, disposal of the motion under Article 179(c), would take no time at all. As soon as the motion is moved, on the floor of the House, the decision thereon will emerge, forthwith. Why would a Speaker who is confident of his majority, fear a floor test? After his position as Speaker is affirmed, he would assuredly and with conviction, deal with the disqualifications petitions, under the Tenth Schedule. And, why should a Speaker who is not confident of facing a motion, for his removal, have the right to adjudicate upon
disqualification petitions, under the Tenth Schedule?” the Supreme Court had said in Nabam Rebia.
This interpretation would mean defection is followed by an immediate floor test and not proceedings of the Tenth Schedule. A floor test is the ultimate step in ascertaining majority in the House, but legal experts have criticized that 2016 interpretation saying it would not lead to ascertaining “real majority” that is determined after punishing defecting MLAs.