Explained: How powerful should the Speaker really be?

New Delhi, Jan 22: In a path-breaking ruling, the Supreme Court has said Parliament should 'rethink' whether the Speaker of a House should continue to have powers to disqualify lawmakers as they 'belong to a particular political party'.

The top court recommended that Parliament should seriously consider Speaker disqualification powers with 'a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court' or some other mechanism to ensure swift and impartial decisions.

A 3-member 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.

Interestingly, the judgment comes at a time when a discussion is already underway among presiding officers of legislatures on how to secure the legislative Speaker's "dignity" in the matters related to the defection of lawmakers.

The apex court has cited the landmark judgment in Kihoto Hollohan 1992, in which the top court laid down the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.

What was the Kihoto Hollohan 1992

In the year 1985, the Tenth Schedule was introduced in the Constitution, by which legislators could be disqualified on grounds of defection. A member is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party on a vote. A member defying the whip of his party may be disqualified from the membership of the House.

The Supreme Court examined whether the powerful role given to the Speaker violated the doctrine of Basic Structure - the judicial principle that certain basic features of the Constitution cannot be altered by amendments by Parliament.

Speaker's role

A Speaker of the house enjoys a unique position. He has to be impartial to uphold the traditions of parliamentary democracy. A government may fall if a simple majority of members present in the House votes against it during a trust vote. But to remove a Speaker, the number of votes against him must be higher than half of the total strength of the House.

The politics

Like any other MLA, a Speaker also belongs to a party and chosen as head to maintain the decorum of the house. Even after he leaves the post, he stands a chance to become a minister and therefore harbours political ambitions. Not the best scenarios for him to act in a non-partisan manner. Unfortunately, the Speaker's position has become a weapon to help the ruling party maintain its numbers when in crisis.

And what is the extent of the Speaker's powers?

Under the Tenth Schedule, Paragraph 6(1) describes the Speaker's sweeping discretionary powers:
"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."

What was the minority view on the Bench?

Dissenting Justice Lalit Mohan Sharma and J S Verma noted: "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 an independent outside authority."

"An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution... the Speaker's choice as the sole arbiter in the matter violates a basic feature of the Constitution since the Speaker cannot be treated as an authority... notwithstanding the great dignity attaching to that office with the attribute of impartiality," it further added.