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Dismissal Of The Speaker Of A State Legislature – Legal Process And Implications

INTRODUCTION

There is an uniform pattern in the governance of the States but the Constitution makes a difference between the bigger and the smaller States in the concept of Legislature. Every State will have Governor and few States shall have both Legislative Assembly and Legislative Council, and there will be Legislative Assembly in the remaining States.[1] The State Governance which consists of both the houses is called as the bicameral Legislature. Andhra Pradesh, Bihar, Telangana, Maharashtra, Karnataka and Uttar Pradesh have both Legislative Assembly and Legislative Council. Creation or abolition of a Legislative Council in a State takes place if the Legislative Assembly of the respective State should pass resolution with the presence and vote of not less than two-thirds of the members. Later, the Parliament should approve the resolution passed by the Legislative Assembly.[2]

The Legislative Assembly and Legislative Council are also called the Upper House and Lower House respectively. The Legislative Council is headed by the Chairman and the Legislative Assembly is headed by the Speaker. Speaker is the person who presides over the day-to-day functions of the Assembly.

APPOINTMENT OF A SPEAKER

According to Article 178 of the Constitution, the Legislative Assembly should choose two members among the members of the assembly as the Speaker and Deputy-Speaker of the Assembly. If the position of Speaker and Deputy-Speaker are vacant, the members shall choose another member to act as the Speaker or Deputy-Speaker as the case may be.[3] There are no specific qualifications to become a Speaker. He or She should be a citizen of India and should be above the age of 25;the person should not hold any office neither under the Government of India nor under the State; the person should be a member of the Assembly and should be selected as the Speaker with a majority of two-thirds of the members of the Assembly. A major consideration is given to the member who has a clear understanding of the Constitution and conventions of the Parliament. Generally, the elected Speaker belongs to the ruling party. There are also occasions where the Speaker does not belong to the ruling party. Once the Speaker is elected, the Prime Minister or the Minister of Parliamentary Affairs will propose the Speaker’s name. Then, the Prime Minister and the Leader of the opposition party escort the Speaker to chair.

POWER AND FUNCTIONS OF A SPEAKER

Speakers have more administrative and discretionary powers which are as follows:

  1. A Speaker guides the Lower house and ensures that discipline and decorum prevail in the Assembly.

  2. Speaker will always decide the order of proceedings and agenda to be followed without any infringement of the rights and privileges of the members.

  3. Speaker does not vote in the first instance but he/she has the power to vote while there is a deadlock.

  4. He/She has the right to adjourn the house if there is no quorum.

  5. A Speaker should ensure that a member is punished for any misbehavior.

  6. Under the Tenth Schedule of the Constitution, a Speaker can disqualify any member from the House on the ground of Defection.

  7. A member should withdraw from the House if he fails to comply with the orders of the Speaker.

  8. He/She can reprimand, adjourn, pass a motion of censure, pass a motion of no confidence and can issue warrants to execute the orders of the House.

  9. A Speaker presides over the Joint sittings of the legislative assembly and legislative council.

  10. The decision of the Speaker is final in the issue of considering whether a bill is a money bill or not.

  11. Speaker is the sole arbiter and reader of laws related to the operation of the House. His / her judgments are definitive, binding and cannot usually be doubted, questioned or attacked.

  12. It is through the Speaker that the actions of the House are transmitted to persons and organizations outside the Assembly.

DISMISSAL OF A SPEAKER

According to Article 179, a Speaker or Deputy-Speaker should vacate his office once he ceases to be a member of the Assembly. If a Speaker intends to resign at any time, he or she may tender his resignation in written to the Deputy-Speaker, and in case of the Deputy Speaker, the written resignation is to be tendered to the Speaker. According to Article 179(c), if the members of the Assembly wish to remove the Speaker from his office, they should pass a resolution with the majority. But this resolution cannot be moved until a 14 days’ notice is given to the Speaker. Also, the Speaker need not vacate the office until the first meeting of the Assembly after dissolution takes place.[4] The Speaker is also excluded on disqualification from becoming a member of Lok Sabha according to sections 7 and 8 of the Representation of the People Act, 1951. This situation might arise when a Speaker misrepresents and declares a bill as a money bill.

In the case of Bhupesh Baghel vs State of Chhattisgarh And Ors,[5] the Speaker of the Chhattisgarh Assembly was questioned pursuant to Article 179(c). The Speaker was supposed to have approved the Notice of Resolution on the Assembly, yet the Speaker profusely declined to set a date on which the matter is to be submitted to the Assembly and eventually provided the date on 21 July, 2014 but the session of the Assembly was closed on 25 July, 2014. In case of a violation of the date of the notification, the court assumed the power and ruled that the Speaker was immune to the Jurisdiction of the Court.

In S.R. Bommai V. Union of India[6], 19 MLAs submitted their intent to withdraw their support to the ruling party, and the Government imposed President rule in Karnataka. Later, a writ petition was filed challenging the dismissal. The Nine-Judge Bench of the Apex Court with a 5-4 majority held that the Bommai government’s dismissal to be unconstitutional. The Supreme Court held that a majority of the government should be checked only on the floor test of the House. The governor cannot determine whether to implement his private expertise. This decision appeared time-tested.

KARNATAKA CRISIS

Recently, the Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka[7] case overruled S.R. Bommai V. Union of India. in 2019, a no-confidence motion was considered in Karnataka Government. During this period, several legislators withdrew from their own parties. Nevertheless, their dismissal was not taken into account by the then Speaker of the Assembly because of the confidence vote to be offered after a few days. As the confidence vote was not secured by the governing party during the floor test, the Speaker excluded certain defiant leaders. It addressed the question of disqualification of representatives under the Anti-Defection Law (Tenth Schedule) and the position of Speaker in approving their resignation.

Additionally, the Speaker forbade such MLAs from contesting elections before the expiration of the tenure of the current Assembly. It posed another problem as to how disqualification under the Tenth Schedule could allow the legislature to challenge by-elections within the duration of the existing legislature. The Supreme Court affirmed the disqualification of the opposing legislators, but also ruled that their exclusion would not preclude them from contesting by-polls. Subject to the Court’s order, neither under the Constitution nor under the Representation of the People’s Act, 1951, nor under the Anti-Defection Act, it is specified that disqualification under the Tenth Schedule will act as restriction on contesting re-election. The Court also observed that even the 91st Amendment Act, 2003, which did not require a disqualified person to be a Minister, did not grant the Speaker the right to bar the Speaker from conducting elections before the completion of the fixed term.

CONSTITUTIONAL INTERPRETATION

The dispute is largely focused on the assumption that there is sufficient proof to depict that the defection of the petitioners has happened even before they had withdrawn. In the impugned orders, the Speaker argued that the petitioners’ acts indicated “voluntary renunciation of membership.” Consequently, there is no doubt as to the ability of the Speaker to comply with disqualification once the representatives have tendered their resignation, stricto sensu. So, there is no need to deal with the question of law. Furthermore, the ability of the Speaker to disqualify has been understood in a variety of cases, so there is no scope for a specific analogy in the present situation, which will only delay the unavoidable.

Certain casual and cavalier references will not be pursued by this Court in consideration of conditions prescribed under Article 145(3) of the Constitution, which imposes a duty upon this Court not to engage in excessive intellectual pursuits and save precious judicial resources, and efficiently dispense justice in a timely manner. The last factor, which refers to the ability of the Speaker to disqualify the representatives before the completion of the period, we can point out that the argument of the Respondents that there is a bar on the members until the end of the term falls within the domain of the legislature. In light of the aforementioned debate, the Constitution perceives that there is no need to assign the case to a superior court provided that there is no substantial question of constitutional definition that occurs in this case.

PARLIAMENT AND STATE

The parliament also has two houses, the former is called the Council of State and the latter is called the House of the people. According to Article 93[8], the members of the Lower House shall select two members among themselves to act as the Speaker and Deputy-Speaker of the House.  Article 94(3) states that if the members of the House want to remove the Speaker from his office, they should pass a resolution with the majority of the House. But this resolution cannot be moved until a 14 days’ notice is given to the Speaker. The Speaker need not vacate his office until the first meeting of the House of People after dissolution takes place.[9] More or less the same procedure takes place in the Parliament and the State. The Speaker may also be barred from being a member of Lok Sabha under Sections 7 and 8 of the People’s Representation Act, 1951.

CONCLUSION

The role of Speaker in a Legislative Assembly is very crucial. The official duty of the Speaker is to direct the discussion, make a decision in the process, report the outcomes of the voting, determine who will talk, and punish the representatives who violate the proceedings of the Chamber or House. The members of the Assembly get an opportunity to pass a no-confidence motion because a Speaker with responsibilities should be supported by the members. The members support the Speaker when he acts in the right way. And so, Article 179 of the Constitution gives a path to the members who are not satisfied with the rule. In every other case, the position of the Speaker is vital in ensuring a balance between democratic principles and constitutional concerns. In this respect, the function of this Court is to determine if the Speaker, as a neutral individual, has performed the duty to preserve the Constitution and the principles thereof.

Case Laws:

[1] Article 168 of the Indian Constitution, 1949

[2] Article 169 of the Indian Constitution, 1949

[3] Article 178 of the Indian Constitution, 1949

[4] Article 179 of the Indian Constitution, 1950

[5] Bhupesh Baghel vs State of Chhattisgarh And Ors on 16 October 2015

[6] S.R. Bommai vs Union of India on 11 March, 1994, Appeal (civil) 3645 of 1989

[7] Shrimanth Balasaheb Patil vs Hon’ble Speaker Karnataka on 13 November, 2019, WRIT PETITION (CIVIL) NO. 992 OF 2019

[8] Article 93 of the Indian Constitution, 1949

[9] Article 94(3) of the Indian Constitution, 1949

C.AMIRDHA VARSHINI

SASTRA DEEMED TO BE UNIVERSITY

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