Context

• The Supreme Court (SC) recently granted interim relief to rebel MLAs of the Shiv Sena amid Maharashtra political crises and has sought a counter-affidavit from the Maharashtra Deputy Speaker.
• This crucial but unusual judicial intervention by SC raises questions on the powers of the Speaker under the Tenth Schedule of the Constitution.
• The question of when a floor test will be held in the Maharashtra Assembly, meanwhile, remains unclear.
• During the hearing on the Maharashtra situation, senior advocate, 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.
• The issue of considering the removal of the Deputy Speaker himself is more complex and raises questions on the sanctity of the Tenth Schedule.

Background

• In February 2021, the post of the Assembly Speaker fell vacant after the Speaker Nana Patole, a Congress legislator, resigned from his position and became the state Congress president.
• Thereafter, as per Rule 9 of the Maharashtra Legislative Assembly Rules, 1960, Deputy Speaker, Narhari Zirwal started discharging the duties of the Speaker in the House.
• The Maharashtra government had since been proposing to hold the elections to the post of the Speaker, which has however not taken place so far.
• This has made Deputy Speaker, Zirwal a key player in the political drama playing out in the state. As he issued disqualification notices to 16 rebel Sena MLAs including Shinde, on the Thackeray-led Sena’s request.

About SC interim order

• Extended time: The interim order grants more time to the rebel MLAs, (until July 11) to reply to the disqualification notice served on them by the Sena government.
• Documents: It seeks affidavits from the rebel MLAs and also a counter-affidavit from the Deputy Speaker on his removal as demanded by the rebels.
• Significance: In granting more time, the Supreme Court has essentially delayed the disqualification proceedings, which would have a direct impact on a trust vote in the Assembly, whenever it takes place.

Earlier rulings

• 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.

About Tenth Schedule

• Description: 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.
• Judgement: 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. Hence, Courts have refrained from interfering with the process itself.
• Ruling to limit Speaker’s powers : 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 Bamang Felix case, concerning a constitutional crisis in Arunachal Pradesh then, a five-judge Bench of the SC limited the Speaker’s powers.

About Nabam Rebia ruling

• Governor meeting for floor test: The Constitution Bench judgment of the Supreme Court in Nabam Rebia versus Deputy Speaker in July, 2016, held that a Governor is bound to convene a meeting of the Assembly for a floor test on the recommendation of the Cabinet.
• Speaker limitation : On the issue of anti-defection, 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.
• Unwarranted action: 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.
• Significance: This ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated, thus effectively tying the hands of the Speaker.

Reasons for Supreme Court’s 2016 decision

• Confidence of Assembly: 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.
• Quick decision: The disposal of the motion under Article 179(c), takes no time at all. As soon as the motion is moved, on the floor of the House, the decision thereon will emerge, forthwith.
• Firm decision: After his position of Speaker is reaffirmed, he would assuredly and with conviction, deal with the disqualification petitions, under the Tenth Schedule.
• Elucidation: This interpretation would mean defection is followed by an immediate floor test and not proceedings of the Tenth Schedule.
• Criticism: A floor test is the ultimate step in ascertaining majority in the House, but legal experts have criticised that 2016 interpretation saying it would not lead to ascertain “real majority” that is determined after punishing defecting MLAs.

Have legislators used this legal route?

• Yes, since 2016, this legal route has a been a familiar playbook for legislators cutting across states and political affiliations.
• Uttarakhand: In 2016, rebel MLAs of the Congress sought removal of Uttarakhand Assembly Speaker Govind Singh Kunjwal after shifting ranks to the BJP to stall anti-defection proceedings.
• Tamil Nadu: In 2018, AIADMK legislator S Karunas sent a notice to the Tamil Nadu Legislative Assembly Secretary, 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 T T V Dhinakaran.
• Manipur: 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.

Procedure for removal of Speaker

• Constitution provisions: Under Article 179 of the Constitution, a Speaker or Deputy 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.
• Interpretation: 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.
• No change in composition of Assembly: 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.

Way forward

• In Keisham Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative Assembly & Ors., the court recommended the Parliament to amend the Constitution regarding the role of Speaker as a quasi-judicial authority while dealing with disqualification petitions under the anti-defection law, when such a Speaker continues to belong to a particular political party.
• The Supreme Court suggested that an independent tribunal could be appointed which would substitute the Speaker of the Lok Sabha and Legislative Assemblies to deal with matters of disqualification under the Tenth Schedule.
• Such a tribunal will be headed by a retired Supreme Court judge or a retired Chief Justice of a High Court.
• The court also suggested that some other outside independent mechanism can adjudicate on such matters. This will ensure that such disputes are decided both swiftly and impartially.