The Robes of the Speaker do change and elevate the man inside.
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The ‘52nd Constitutional Amendment Act, 1985’ added the ‘10th Schedule’ in the Constitution. With other provisions, the amendment, under para 6 also gave power to speaker of the Loksabha, to decide the disqualification of the member if he defects from his party by which s/he was elected as a member of parliament.
In the case of ‘kihoto Hollohon v. Zachilluhu, (1991)’, the constitutional validity of the amendment was challenged. The case arose after some decisions of various speakers of various states on the membership of member of parliament. Other provisions of 10th Schedule, were also questioned, but the main focus was on Speaker’s power to decide the question of disqualification of MPs.
The case was heard by five judges’ bench, which included, Justice M.N. Venkatchaliah, K.J.Reddy, S.C Aggarwal (majority), Justice L.M. sharma and Justice J.S. Verma (both were in minority).
FIRST, we will discuss the majority’s decision on the matter and then minority’s decision.
Para 6 of the Tenth Schedule
6. Decision on questions as to disqualification on ground of defection. — (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.
The decision of the Majority (Justice Venkatchalaiya)
The speaker is Tribunal
The word “Courts” is used to designate those Tribunals which are set up in an organised State for the administration of justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish “wrongs”.
Where there is a lis an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a court. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.
A finality clause
Finality clause means, a clause in a provision which made the decision final by certain authorities. In para 6(1), the decision of the speaker is provided as final. So, the court discussed the legality of finality clause.
When it was contended in the case that the finality clause ousted the jurisdiction of the court from deciding anything on disqualification, Justice Venkatchailaya said,
A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority.
An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant consideration.
Therefore, the finality clause with the word “final” in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different.
The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, noncompliance with rules of natural justice and perversity. But Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia-timet action would not be permissible.
Nor would interference be permissible at an interlocutory stage of the proceedings. Exceptions will, however, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.
The finality Clause does not oust the jurisdiction of the court
The finality clause in Para 6(1) of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be, the speaker of the House shall be final is not decisive. Such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity.
Sub-paragraph (1) alone is, therefore, insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of supreme Court.
The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations.
Giving the power of adjudication to speaker does not violate the basic feature of democracy
The argument was that an independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy, which is a basic feature of Indian constitutionalism. It was urged that investiture of the power of resolving such disputes in the Speaker or the Chairman did not answer this test of an independent, impartial quality of the adjudicatory machinery. It was, therefore, urged that Paragraph 6(1) of the Tenth Schedule was violative of a basic feature.
It was also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free tugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.
But the court said that the office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature of democracy.
It is inappropriate to express distrust in the high office of the speaker, merely because some of the speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside.
Minority Opinion
Speaker is not independent authority
Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, one of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.
The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Article 103 and 192 for decision of disputes by the President/Governor in accordance with the opinion of the Election commission.
In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.
The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of bias could not be ruled out. Rule of law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are: Nemo judex in cause sua – `A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and `it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.
An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.
The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.
Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.
Reference
Kihoto Hollohon v. Zachillhu (1992)