Power and function of Speaker of the House
In connection with the Tenth Schedule to the Constitution of India

Yumkham Erabot Singh *

Inside the Assembly Building at Chingmeirong :: Pix - Daniel Chabungbam

Floor-crossing, Carpet-crossing, Party-hopping, Waka-jumping all are different nomenclatures meant of defection which is more common term. There are countries where defection is non-issue, not perceived as a problem whereas in other countries it has become a serious concerned. Defection is dealt with the help of a well-established customs, conventions, parliamentary practice and procedures in many countries including the British Parliament. In other words, it is under the unwritten constitution.

Out of the 40 Commonwealth parliaments 23 have anti-defection laws and 17 do not have such laws. In U.K., the mother of democratic parliament has no bar on members changing their party affiliations. However the member who defects sits separately from the original party members. Similarly there is no prohibition of legal or constitutionality against the practice of crossing of floor in Canada, Australia, etc. In Barbados, there is no anti-defection law.

But if a member defects his seat would be declared vacant thereby paving the way of by-election. Still very exceptional practice is there in the parliament of Nauru. Member is elected on the basis of adult franchise can become either member of the caucus (ruling) or the back bancher (opposition). In short, there are parliaments which have no laws/rules framed for defection.

In India political defection has become a serious concerned. Keeping into account of frequency and number of defections causing of instability, loss of political ethics and moral, upper handing by selfish ends all these need to legislation of an appropriate Act and Rules. Accordingly, the Constitution (fifty-second Amendment) Act,1985 amended Article 101, 102, 190 and 191 of the constitution regarding vacation of seats and disqualification from membership of parliament and State Legislative Assembly setting out certain provisions as to disqualification on ground of defection. Further amendment of the Tenth Schedule in 2003 causing delation of split of legislatures and merger of legislature along without the parent political party are all subjected to disqualification.

The question of encurring disqualification under the Tenth Schedule can be determined by the Speaker/Chairman himself or if supposed required the same may be referred first to the Committee of priviliges for a preliminary enquiry and submitting a report to the Speaker. Then Speaker will determine the matter after the receipt of the report of the Committee.

Courts have no power to question the jurisdiction either as to the occasion or purpose or the subject-matter of an ordinance even if the ordinance is found not made in good faith, except on the justifiable ground of exceeding the legislation power conferred on the Union by the Constitution. The said provision is quite different from that of the disqualification in the Tenth Schedule.

In Kehota Hallohon vs Zachilhu majority of the opinion was that the Speaker/Chairman is to act under para 6(1) of the schedule to be merely that of a Tribunal and 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 para 6(2) to be confined to jurisdictional errors only viz., enfirmities based on violation of constitutional mandate, melafides non-compliance of rules of natural justice and perversity.

The question, however, as to whether a member of the House has become subject to disqualification must arise for decision under para 6(1) of the Schedule only on its being referred for decision of the Speaker/Chairman not his own whose decision shall be final. It has been a continuing observation and major opinion in the Supreme Court of India that the para 7 of the Tenth Schedule on the jurisdiction of Courts (H.C. and S.C.) is ultra vires of the Constitution and needs of ratification or amendment.

The most pecular and exceptional case in connection with the disqualification of member of the House is found very interesting in the case no. 82 of 1992 in the Supreme Court of India. The case was that some member of the State Assembly of Manipur was disqualified by an order of the Speaker, Dr. H. Borobabu Singh in the year 1992. The member moved to the Supreme court. Supreme Court stayed the order of disqualification passed by the Speaker.

The then Secretary of the Assembly of the State of Manipur, Sri, I. Manilal Singh processed in compliance of the directive of the Court. In the mean time the Speaker put the Secretary under suspension and thereafter made an order of compulsory retirement of the Secretary. The matter was brought to the notice of the Supreme Court in a formal way.

Supreme Court stayed the impugn order of suspension and compulsory retirement of Sri, I. Manilal Singh. At the same time Supreme court seriously directed the Speaker to appear in person in the Court under the charge of the criminal contempt. From the episode it is no doubt to enfer that the Speaker of Manipur Legislative Assembly thought or was advised by his councel or the like in a different way due to their failure to synthesize the related basic provisions of Articles in the constitution of India.

The Speaker and his group took that Speaker is imune in discharging his power and function to disqualification of member of the House only concentrating with the para 7 of the Tenth Schedule. It is the well confirmed points that the Supreme Court shall be the court of record and shall have all powers including power to punish for contempt of itself under the Article 129 and enforcement of decree and orders of the Court under the Article 142.