On July 13 2016, the Supreme Court delivered a judgment reaffirming the principle of democratic governance by an elected government. The judgment slammed the governor of Arunachal Pradesh, a nominal head, for entering the political thicket of the state. The court restored status quo ante and the Nabam Tuki government was restored.
However, the judgment unintentionally leaves a loophole for unprincipled politicians to frustrate the working of the anti-defection law. The court while interpreting Article 179(c) and the Tenth Schedule of the Constitution has held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings, if a no confidence motion against him is pending.
The process of a no-confidence motion begins with a notice of 14 days under Article 179(c). The speaker can, thereafter, be removed by a no confidence resolution passed against him by a majority of “all the then members of the assembly” The Arunachal judgment interprets 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; consequently it holds that no change in the composition of the house is permissible once such a notice is given, till the outcome of the resolution. So, the court concludes that a speaker cannot disqualify a member under the Tenth Schedule, for defection, once there is a notice for his removal.
The Tenth Schedule was introduced by the 57th amendment act to the Constitution in 1985 in the wake of aya ram gaya ram politics plaguing the country. The rampant crossover of politicians, after being elected, was a serious concern. The Tenth Schedule prescribed disqualification for legislators who commit the “constitutional sin” of defection. The power to adjudge disqualification was vested in the speaker of the house
In 1992, in the Kihoto Hollohan case, the Supreme Court upheld the validity of the Tenth Schedule. Rejecting the argument that the speaker could not provide for an independent adjudicatory mechanism — on the ground of political bias — the court observed that it is “inappropriate to express distrust in the high office of the speaker”.
The court expressed the hope that “the robes of the speaker do change and elevate the man inside”.
Post Kihoto Hollohan, the country has seen several cases, where this constitutional trust reposed in the high office of the speaker being breached by the “man inside”. And almost two-and-half decades after Kihoto Hollohan, the Arunachal judgment seems to have junked the “robes” principle and has attempted to place legal fetters on the “man inside”. It has incapacitated the speaker from deciding any disqualification petition under the Tenth Schedule if a no confidence resolution is pending against him. The court has sought to base this on a principle that a person whose authority is under a cloud ought not to decide the fate of others till the cloud is removed. The principle is indeed salutary, but whilst putting fetters on the speaker on trial, the court has, in effect, provided a safety valve to potential defectors to escape the consequences of the Tenth Schedule.
A legislator, by simply giving a notice for removal of the speaker/deputy speaker, can bring the constitutional mechanism of disqualification under the anti-defection law to a grinding halt. All that a “constitutional sinner” has to do is to give a notice for removal of the speaker and then let raw unprincipled politics to take over. As long as the resolution for removal of the speaker is pending, any act of defection by a legislator cannot attract the penalty of disqualification.
The article should have mentioned that the author appeared for the Speaker in the case and has filed for a review petition.