Indecision by the Speaker: Exploiting A Constitutional Silence in the Tenth Schedule

Eeshan Sonak & Arjun Nayyar

While hearing a plea seeking guidelines to decide defection cases in a time-bound manner, CJI Ramana made the following observations in Ranajit Mukherjee v. Union of India: “How can we make a legislation? We can't fix time and time limits. It is all matter of the Parliament which has to take into consideration these things. I've already expressed the same opinion in my Karnataka judgement. Read the same and come back.”

Firstly, the Karnataka judgment in question relates to the larger idea of the Speakers impartiality, and not to the Courts power to check her indecision. Its relevance to the present petition is further questionable because subsequently, a three-judge Bench of the Supreme Court in Keisham Meghachandra v. Kale Yadaiah conclusively held that Speakers must decide disqualification petitions within three months except under exceptional circumstances. “The Supreme Court ends Speakers’ freedom to do nothing in disqualification cases” read an editorial in the Hindu soon after the judgment. Yet we see the Supreme Court once again moan that its hands are tied.

India’s anti-defection law is riddled with flaws, prince among them being the vesting of adjudicatory authority in the Speaker. We are increasingly witnessing cases of Speakers displaying a ‘partisan trait’ towards their political masters. Since the Tenth Schedule does not stipulate any time restriction for the speaker to pronounce a decision, Speakers simply sit tight on a disqualification petition without giving a decision. This allows legislators to defect from their party and take up plump portfolios in the government with impunity. Except for the judiciary through its writ jurisdiction, there is nothing to prevent the Speaker from taking as long as she pleases – even the entire remaining term of the House – to decide the disqualification petition. If the CJI’s comments are to be accepted, this writ remedy will also not be available.

This issue has come up time and again in the Courts, and was finally thought to have been resolved in Keisham Meghachandra. It remains to be seen what the Supreme Court does in the present case, but CJI Ramana’s remarks show that the Court may take a different decision. In Kihoto Hollohan v. Zachillhu (1992), the Supreme Court struck down paragraph 7 of the Tenth Schedule which barred the jurisdiction of Courts to review the Speakers decision. However, it held that a restraining action (quia timet) would be impermissible at a stage prior to the making of a decision by the Speaker.

Conversely, a few years later, a Constitution Bench of the Supreme Court observed that allowing the Speaker to indefinitely delay her verdict “goes against the very constitutional scheme of adjudication contemplated by the Tenth Schedule… Such a failure to exercise jurisdiction cannot be held to be covered by the shield of para 6 of the Schedule.” It has been suggested that these remarks by the Constitution Bench were only obiter, as they dealt with the particular facts of the case and whether the MLAs can claim the defence of split in the original party. However, in Keisham Meghachandra, the Court explained the proper import of the Constitution Bench decision. Since the matter involved inordinate delays in decision making by the Speaker, this observation cannot be said to have been obiter merely because no direction was passed in pursuance of it.

The Courts have in the past stipulated time periods for Speakers to pronounce their verdicts in anti-defection cases. For instance, in 2010, the Punjab and Haryana High Court directed the Speaker to decide the disqualification petitions within a period of four months, and the Supreme Court upheld this direction. Although, it set aside the part of the order which stripped the MLAs from voting or holding office in the meantime. Similarly, in 2012, the Orissa High Court directed the Speaker to dispose of the disqualification petitions within eight weeks, and the Supreme Court upheld this direction. It was in light of these decisions and their supposed conflict with Kihoto Hollohan that a two-judge bench of the Supreme Court in Sampath Kumar v. Kale Yadaiah (2016) made a reference to a Constitutional Bench.

Amidst its pendency before the Supreme Court, some High Courts addressed the same issue. The Bombay High Court in 2019 observed that the power to formulate a timeline for the Speaker is absent in the Tenth Schedule and the Rules framed thereunder. Similarly, the Madras High Court in 2018 dismissed a writ petition on the preliminary ground of judicial restraint and refused to decide a question of law pending before the Supreme Court. However, the Meghalaya High Court took a different approach, taking cognizance of the fact that disqualification petitions filed in July 2017 were kept undecided for two years. In July 2019, the High Court held that the Speaker is a quasi-judicial authority who is required to take a decision within a reasonable time.

This matter in appeal came up for consideration before a three-judge Bench of the Supreme Court in Keisham Meghachandra. Justice Nariman recognized how this loophole was being exploited by politicians to subvert the provisions of the Tenth Schedule and prescribed an outer limit of three months for deciding disqualification petitions. In the context of restraint in quia timet action, the Court held that judicial intervention cannot be used to pass injunctions preventing the Speaker from making a decision, but can always pass orders “in aid of the Speaker arriving at a prompt decision.” This is of course at odds with the questions posed by CJI Ramana in the ongoing case of Ranajit Mukherjee.

In our opinion, the decision in Keisham Meghachandra is logically and constitutionally sound. The Supreme Court never usurped jurisdiction from the Speaker, but only introduced a condition requiring the Speaker to exercise her powers within a reasonable timeframe. Logically speaking, allowing defectors to hold office for an indefinite period defeats the purpose of the anti-defection law. If the ruling party assures an MLA that the Speaker will not decide the disqualification petition for a substantial period, MLAs can be incentivized to defect. Surely, this could not have been the intention of the Parliament.

Time and again, the Supreme Court has stepped in to fill the gaps in constitutional silences. In the words of Justice Bhagwati in D.C. Wadhwa v. State of Bihar, a constitutional authority cannot do indirectly what is not permitted by the constitution to do directly. The Constitution does not permit immunity to the Speakers decision from judicial review. Yet, the Speaker can achieve the same result by simply not taking a decision. Without a timeframe for Speakers to decide disqualification petitions, the protection of judicial review is no deeper than a coat of paint. Speakers can simply leave disqualification petitions undecided for the remainder of the term of the House, thereby disallowing the Courts to exercise writ jurisdiction.

Harvard Professor Lawrence Tribe said that constitutional silences are what was omitted when a constitution was enacted, but it was not what the framers would have rejected. Closer to home, Justice Chelameswar in his concurring opinion in the Privacy judgment observed that the ‘dark matter’ of the Constitution is as important as the text. Barring a few exceptions like Gopalan and ADM Jabalpur, the Supreme Court has consistently rejected the textual approach in favour of the living constitutionalist interpretation approach. Chelameswar held that privacy is a facet of Article 21, just as other rights such as education, reputation, livelihood, environment, and speedy trial are part of Article 21 despite not being explicitly mentioned in the text of the Constitution.

A Court that declared the re-promulgation of ordinances as a fraud on the constitution, a Court that interpreted ‘consultation’ to mean ‘concurrence’ in the context of the appointment of judges, and a Court that gave us the basic structure doctrine itself, cannot claim helplessness in the face of subversion of our democratic principles. It is the duty of the Supreme Court to ensure that its co-ordinate branches do not abuse the provisions of law. When such abuse does take place, the Courts must step in to protect our constitutional values and ethos.

In Ranajit Mukherjee, that would mean reading into the constitution a ‘reasonable time’ condition. While not explicitly mentioned, the absence of a timeframe would render moot the provisions of the Tenth Schedule. Judicial restraint, though laudable, needs to be tempered to its proper limits. If overdone, it would amount to judicial abdication. In the present case, the CJI's advocation of restraint is no different from granting a licence of indecision to a Speaker. The Court cannot deprive itself of jurisdiction by allowing a constitutional silence to be exploited in this manner.

As observed by CJI Ramana himself, the impartiality of Speakers can no longer be trusted. If the Supreme Court refuses to follow its decision in Keisham Meghachandra delivered by a bench of co-ordinate strength, it would add another arrow in the Speakers quiver to defraud the Tenth Schedule and the Constitution of India.

(The authors are third-year students at NALSAR University of Law, Hyderabad)