Guest Post: No-Confidence Motions, Parliamentary Business, and the Constitution

[This is a guest post by Hardik Choubey.]

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On 26 July 2023, the Indian National Congress (INC) MP from Kaliabor moved a no-confidence motion (for convenience, NCM) against the NDA government in the Lok Sabha. This motion was accepted by the Speaker of the Lok Sabha (Speaker) on the very same day. The Lok Sabha Rules of Procedure provide that after leave is granted to an NCM, the speaker has a maximum time period of ten days to appoint the date on which the motion would be taken up (Rule 198(2)). The speaker did not immediately appoint a date for taking up the NCM, and in the meantime, the Union Government has proposed and passed at least six bills through the lower house.  This state of affairs has led to various opposition leaders severely criticizing the passage of these bills and citing parliamentary practice of no discussion on substantive motions when an NCM is pending before the lower house.

This piece will analyze this particular conundrum through a constitutional lens. I argue that not only are grave deviations from accepted parliamentary procedure ‘irregular’- but they can also be illegal. I will show ‘illegal’ deviations would be subject to judicial review under our constitutional scheme. In applying this analysis to the situation at hand, I will also argue that the ‘precedence’ of an NCM over other substantive motions is not merely a practice, but a convention which requires and deserves constitutional protection.

Background

An NCM is a formal proposal enshrined under Rule 198 of the Lok Sabha Rules of Procedure. There is no constitutional provision for an NCM; however, this motion provides for a mechanism to hold a council of ministers ‘collectively responsible’ to the lower house. Recall Article 75(3), which states that “the Council of Ministers shall be collectively responsible to the House of the People.“ A failure to defeat an NCM necessitates the resignation of the council of ministers and in that manner, it is a tool for accountability of the political executive to the representatives of the people.

However, this mechanism is strictly internal to the functioning of the parliament and the constitution provides for a bar on any court inquiring into parliamentary proceedings. Article 122 (which corresponds to Article 212 for the state legislatures) provides:

122. Courts not to inquire into proceedings of Parliament– (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

Prima facie, the conduct of other substantive business during the pendency of an NCM would seem to be a practice that can be condemnable but not justiciable, owing to the bar under Article 122. However, in light of the Supreme Court’s (SC) jurisprudence on the scope of Article 122, I argue that this need not be the case.

Scope of Judicial Review of Parliamentary Procedure

Note that Article 122 does not set an absolute bar on the judicial review of parliamentary proceedings- it qualifies the bar on questioning parliamentary proceedings on the ground of any alleged irregularity of procedure. A seven-judge bench of the SC attempted to clarify this distinction in Special Reference No. 1 of 1964 (Powers, Privileges and Immunities of State Legislatures) in the context of Article 212. The court observed that judicial review under the article is only barred when the grounds are limited to “irregularity of procedure”. They further observed that proceedings of the legislature can still be challenged if the ‘procedure is illegal and unconstitutional’ [Page 36]. Thus, an avenue for judicial review of parliamentary procedure was opened.

In Justice KS Puttaswamy v Union of India 2018 (Aadhar Judgement), both AK Sikri, J.’s Majority Opinion (At Para 405) and Chandrachud J.’s dissenting opinion (At Para 82) recognise that the Articles (122 or 212) only limited challenges on the ground of ‘irregularity of procedure’ and not on the grounds of illegality or a violation of constitutional provisions. On the question of what would not constitute “procedural irregularity”within these articles, a constitution bench judgement in Rojer Mathew (2019) clarified:

…gross violations of the Constitutional scheme would not be mere procedural irregularities and hence would be outside the limited ambit of immunity from judicial scrutiny under Article 122(1). (Para 104) [Emphasis Mine]

The recent judgement in Subhash Desai v Principal Secretary (2023) provides further specification:

The distinction between irregular procedure and illegal procedure must be drawn based on the nature of the procedure which was violated, and the impact of such a violation on democratic ideals. An infringement of a procedure would be irregular if the purpose of such procedure is unrelated to democratic ideals and its violation does not go to the root of democratic processes… this Court… does not make a distinction between irregularity and illegality solely based on the source of law. The distinction is not based on whether the procedure is entrenched in the Constitution but whether it is crucial for the sustenance of democracy. (Paras 99-100) [Emphasis Mine]”

Thus, the scope of judicial review for illegal adherence or non-adherence to a parliamentary practice would be contingent on the impact of such practice/procedure on the sustenance of democratic ideals in the nation. Crucially, the distinction between illegality and irregularity is not made solely on the source of the practice/procedure. This provides an avenue for challenges to adherence or non-adherence to not only formal rules, but also established parliamentary norms or conventions. Remember, that what is crucial is the impact of such adherence or non-adherence upon the democratic ideals enshrined in the Constitution.

Precedence of NCM as a ‘Parliamentary Convention’

Even if it is established that illegality related to parliamentary conventions can be reviewed by courts, it is necessary to investigate whether the purported claims of ‘precedence of NCM over substantive motions’ are actually based on an established parliamentary convention. If they are, then it would be safe to say that the substantive value of non-adherence to such a convention would be fairly higher than non-adherence to a mere cursory practice.

In this analysis, therefore, I will stick to the following inquiries:

Whether the precedents of ‘precedence of NCMs over substantive motions’ create a rule? And if (a) is answered in positive, then: (b) Whether such ‘rule’ creates a ‘convention’?

In this, I would seek to utilize Sir Ivor Jennings three-part characterization of when a ‘convention’ is formed [At Internal Page 19]: In order to establish a convention three questions must be asked: firstly, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, whether there is a good reason for the rule? This criterion was subsequently adopted by the Canadian Supreme Court in Re: Resolution to amend the Constitution (1981).

Let us begin this analysis from the question of what are the precedents. The various opposition parties have pointed to an excerpt from Kaul & Shakhder’s Practice & Procedure of Parliament (page 772), which reads:

When leave of the House to the moving of a motion has been granted, no substantive motion on policy matters is to be brought before the House by the Government till the motion of no-confidence has been disposed of. [Emphasis Mine]

The argument essentially is that a commentary issued by the parliament itself notes that the practice of the lower house has been to not take up substantive motions when an NCM (for which leave has been granted) is pending. The book cites two instances where this was observed: the first was in relation to Hiren Mukherjee’s NCM against Indira Gandhi’s government in August 1966; and the second was in relation to Jyotirmoy Bosu’s NCM against Indira Gandhi’s government in July 1974. I will take up each of these instances in-turn:

Hiren Mukherjee’s NCM (July-August 1966):

This motion was brought in the context of the government’s decision to devalue the rupee whilst the parliament was not in session. The government had been provided with an order by the speaker which gave the Finance Minister’s motion to discuss this decision priority in the session following the decision. The NCM was made on 25 July 1966 and was granted leave of the house on the same day (Internal Page 193-196). The house remained in commotion on the 25^th regarding which motion should be given precedence: the NCM or the Finance Minister’s motion. The opposition made pleas to the speaker to prioritise the NCM. It was pointed out that there was no precedent in the House of Commons of any substantive debate until a government had proved that it had the trust of the house (At 201). In the words of the (then) opposition MP from Indore (At 208): “It is constitutional decorum to have the discussion of the No-Confidence Motion first.”

However, the Hon’ble Speaker insisted that the matter was not in his hands as it was time allotted to government business and the most he could do in light of the rules was to “persuade” the government to discuss the NCM first (At 204). Neither motion could be discussed that day, owing in no small part to the commotion in the house. The next day (26^th)- the discussion proceeded with the Leader of the House (& Minister for Parliamentary Affairs) conceding thusly (At 458): “I do concede that whenever there is a no-confidence motion, no substantive motion should be brought just to forestall the whole thing.”

However, he made this assurance prospective and when a motion to adjourn discussion on the Finance Minister’s motion was brought, it was negatived (At 459). The Finance Minister (FM) made his speech that day but no substantial discussion happened on his motion (461 onwards). On the 27^th, the Prime Minister explained that the FM’s motion was in pursuance of informing the parliament about actions taken when it was out of session  and not to forestall taking up the NCM (At Internal Page 780). She informed the parliament that the government had “re-considered” the matter after the resumption of proceedings, and would be prepared to postpone the discussion on the FM’s motion until the NCM was disposed of. She elaborated that the opposition’s entitlements and the government’s duty to demonstrate the confidence of the house during the pendency of an NCM had weighed in this decision [The belief of being bound by the rule]. The NCM was taken up from the next substantive session on 1 August.

Jyotirmoy Bosu’s NCM (July 1974):

In this instance, an NCM was moved against some allegedly unjustified ordinances (At internal page 65). In contrast to the 1966 motion, this time the Hon’ble Speaker was keen on taking up the NCM soon after the house granted its leave to the same (At Internal Page 220-221). In fact, the MP who moved the NCM and other opposition MPs attempted to bring up other substantive issues for debate, but the speaker would not allow anyone (ibid). In reply to one opposition MP pleading to discuss a separate issue, the speaker responded (At 221-222): “Please sit down. Your committee has decided that so long as a No-Confidence Motion is there no other question will come except this one. Please cooperate.”

It is clear that the speaker held himself out to be bound by the rule that no other substantive motion or question could be taken up until the NCM was disposed of. The house then proceeded to discuss the NCM that very day.

It is clear from these examples that not only was there an adherence to a tradition borrowed from the UK House of Commons, the actors in parliament demonstrated a commitment to be bound by this tradition. Various leaders and office-holders in these debates, from all sides, agreed that a ruling dispensation cannot keep on forwarding the business of government whilst their trust by the lower house has been questioned. In my research on other NCMs, for large swathes of the history of independent India, this rule has been adhered to. The principle therefore fulfils the criterion for being a parliamentary convention.

In Goa, an NCM was pending before the legislative assembly in February 1991 (Rule 247 of the Goa Legislative Assembly Rules is in pari materia with Lok Sabha Rule 198. The speaker of the assembly felt bound by precedent in giving precedence to the NCM over other motions (At Internal Page 300).  In Pondicherry, precedence was given to an NCM over a ‘motion of thanks’ in 1993 (ibid). These instances showcase that even on the level of state legislative assemblies, the role and bindingness of the precedence of NCMs over other substantive motions has been reiterated time and again.

The Parliamentary Convention of ‘Precedence to NCMs’ and Democratic Ideals

As we have discussed earlier, practices within the parliament can only be reviewed judicially if the adherence or non-adherence of a process leads to an illegality. Recall that this threshold can be achieved only if the practice which is not being adhered to is crucial for the sustenance of democracy.  In the Indian parliamentary context, if the convention of precedence to NCMs over other substantive motions is not adhered to, various ramifications may ensue. It is the government which gets substantial time for business in the parliament, and this privilege sets the scope for much of the debate and discussion in the nation’s representative body. This privilege may be exercised by an executive which stonewalls a discussion and vote on their ability to showcase the trust of the people’s representatives. Further, the power to promulgate ordinances effectively rests in the hand of the union council of ministers. Lastly, a council of ministers that has not faced a trust vote continuing to propose and pass laws is undemocratic and runs counter to the principles of collective responsibility and parliamentary democracy. In this backdrop, I submit that the state of affairs where long-stablished parliamentary conventions are ignored, is not one of procedural irregularity, but of illegality. This is an illegality that can be taken cognisance of in constitutional terms, and should be remedied.

The Maharashtra Political Crisis Judgment – IV: The Speaker, the Election Commission and the Legal Fiction [Guest Post]

[This is a guest post by Shiva Krishnamurti.]

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In a recent interview with The Hindu, published on 25.05.2023, the Hon’ble Speaker of the Maharashtra Legislative Assembly, talking about the Shiv Sena dispute, stated that he is not bound by the order of Election Commission (ECI) and will decide the disqualification petitions filed by both factions of the Shiv Sena independently. He also affirmatively stated that the Hon’ble Supreme Court, vide its judgement dated 11.05.2023 in Subhash Desai v. Principal Secretary to Government, Maharashtra, WP (C) No. 493 of 2022 (Shiv Sena Constitution Bench Judgement) has widened the role of the Speaker under the X Schedule of Constitution (X Schedule), and has also asked him to investigate who the “real” Shiv Sena political party was as of July 2022.

It is now not out of the place to mention that this affirmative statement made by the Hon’ble Speaker finds its force from the discussion and conclusion  under Part E of the Shiv Sena Constitution Bench Judgement, between paragraphs 125 to 159 of the Judgement.

However, if the said discussion and the latest interview of the Hon’ble Speaker make one thing very clear, it is that there now exists a situation of chaos, which has blurred the powers of ECI and under Paragraph 15 of the Election Symbols (Allotment and Reservation) order, 1968 (Symbols Order) and the power of Hon’ble Speaker under X Schedule of Constitution.

The Hon’ble Supreme Court categorically states that the ECI is an independent Constitutional Body and so is the Speaker, and the pendency of a concurrent issue initiated before one authority shall not await the result of the other, pending before the other authority. However, the stand of the Hon’ble Supreme Court essentially makes it impossible for either the ECI or the Speaker to proceed, without creating a situation of chaos and unsettlement, and essentially a paradox.

The relationship between the proceedings under the X Schedule of Constitution and Paragraph 15 of the Symbols Order

Though hyper-technically, or even theoretically, the X Schedule and Paragraph 15 of the Symbols Order operate in totally different fields with no relation whatsoever to each other, the recent twists to the political events across the nation has brought (and intertwined) both the legal frameworks to an interesting cross roads.

On the one hand, the Speaker, under the X Schedule has the power to disqualify any member of the Legislative Assembly when there is any defection by a member from the political party they are associated with. Defection is defined under the X Schedule (primarily, voting against the party whip).

On the other hand, Paragraph 15 of the Symbols Order only comes into play when there are two factions inside one single party and both believe that they are “THE PARTY”. In these circumstances, the ECI determines the real party in tune with the law laid down by Hon’ble Supreme Court in the case of Shri Sadiq Ali and Anr. v. Election Commission of India and Ors. (1972) 4 SCC 664.

Now, the question arises when there is a split inside the Political Party and both factions seek the disqualification of each other. This is precisely what happened in the Shiv Sena Case, which started in June 2022. Now in this scenario the following difficulty arises:

1. If the Speaker decides upon the disqualification of either split faction’s members, it will impact the test of majority while deciding the allotment of symbol issue by the ECI to determine “THE PARTY”
2. If the ECI decides “THE PARTY”, essentially that member would not have defected form “THE PARTY” so defined and hence ought not to be disqualified.

Now, since the Supreme Court refused to grant constitutional sequence to either of the proceedings, there is enough potential to create a paradox where there will be two concurrent (and contradictory) decisions given by two Independent Constitutional Authorities, which will leave the political party and the legislature at the cross roads.

SC on ECI and its powers under Paragraph 15 of Symbol order vis-à-vis the Judgement of Shri Sadiq Ali and Anr. v. Election Commission of India and Ors. (1972) 4 SCC 664

The Uddhav Thakeray faction before the Constitution Bench asked the SC to set a Constitutional Sequence, as to which Constitutional Authority i.e., either Speaker or the ECI shall decide the issue of Disqualification or the dispute under Paragraph 15 of the Symbols Order. However, while denying this categorically, interestingly, the Supreme Court has given a different interpretation to decide the disputes under Paragraph 15 of the Symbols Order.

So far, the ECI has been only adopting the test of majority in every dispute under Paragraph 15 of the Symbols Order. It means that the ECI used to determine which faction has greater numerical strength in the Legislative and Organizational wings of the party. Consequently, the faction having such numerical strength used to get the symbol of the party and would be determined to be “THE PARTY”.

However, the above test is not enumerated in the legislative text of the Symbols Order but has evolved through the law laid down by Hon’ble Supreme Court in the case of Sadiq Ali (supra). In that case, the Apex Court formulated 3 essential tests to determine the “THE PARTY”. The first test was to analyse the constitution of any Political Party in question and determine the real faction. The second test was to see which faction furthers the aim of the Political party and determine the real faction through that. The third test, and probably the most relevant one, was to determine the strength of numerical support/majority.

Now here is where it gets interesting. There are two factors which were not present during the Sadiq Ali case, which left the vacuum as it is. First, there was no X Schedule in existence. It was inserted in 1985. Therefore, the Hon’ble Court was never posed with a challenge to determine the overlapping of fields between the X Schedule and Paragraph 15. Secondly, owing to the facts and circumstances which were present back then, the Court felt that the first two tests were not applicable to the case of Sadiq Ali and merely gave a judgment pertaining to the test of majority/numerical strength.

However, over the years, the ECI adopted one single method (the third test) and did not even attempt to develop the other two tests mentioned in Sadiq Ali case to determine the real party in cases of a contest between two factions.

Hence, when the dispute as that of Shiv Sena arose, it resulted in a conundrum.

Supreme Court’s Judgement and the possible paradigm shift and a situation of legal fiction and paradox

The Hon’ble Supreme Court rightly pointed out the complication in the case at hand and attempted to harmonize the X Schedule and Paragraph 15 of Symbols Order. Now, when this complex and difficult situation was presented before the Hon’ble Supreme Court, it correctly determined that the ECI has not explored the possibility other two tests and has been relying upon the rule of majority alone. Therefore, to that extent, the Supreme Court was right in stating that ECI should try to adopt other methods to determine the real faction. However, still the issue of the Speaker and the ECI giving contrary decisions is a hanging sword.

Thus, the matter could not be left at that, and to put an end to the paradox, the Supreme Court further pondered upon the possible outcome in such complication. However, at this juncture, the Hon’ble Court contemplated only two outcomes – first, when the ECI decides prior to Speaker and determines the real faction; and second, when the Speaker decides prior to the ECI on the issue of disqualification. The SC however did not contemplate or give finding upon the possible contrary outcomes by Speaker and ECI, concurrently. Hence, the Judgement did not deal with that aspect which has now let the Speaker state that he should determine the real party, in his interview discussed above.

Therefore, at this juncture the SC, even though it stated that it is harmonizing the X Schedule and Paragraph 15 of the Symbols Order, has given absolutely no possible solution as to how to deal with the possible situation where the decision of Speaker is contrary to that of the ECI. The SC merely states that “a question may arise as to whether the decision of the ECI under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes.”

When we try to find answers as to what would be the way forward for dealing with the overlapping situation as that in hand, where Speaker affirms that he will determine the real Party, whereas the ECI has already seized of the matter to determine the Real Party, it creates a paradoxical situation where the two Constitutional bodies are set to possibly determine the same issue and possibly in two different directions (a possibility).

The Constitution Bench by suggesting to the ECI to adopt alternate tests and deviate from the years-old majority rule to determine real faction, though logically arguably correct, would surely create turbulence in the settled jurisprudence of Paragraph 15. Furthermore, it still does not resolve the core underlying issue of the possible legal fiction that would be created. We live in interesting times, and would possibly find answer to the paradoxical situation in either the plea filed against the Order of the ECI by Udhav faction or in the larger bench proceedings of Nabam Rebia. Till then, we shall continue to witness the the continual evolution of our nation’s election jurisprudence.

The Supreme Court’s Maharashtra Political Crisis Judgment – III: On Constitutional Romanticism and the Role of the Speaker [Guest Post]

[This is a guest post by Chiranth Mukunda, and continues the blog series on the Supreme Court’s Maharashtra Political Crisis judgment. Parts One and Two may be read here.]

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On May 11, a five-judge bench of the Supreme Court delivered a unanimous decision with nine conclusions in the Maharashtra political crisis case (Shubhash Desai vs Principle Secretary). The complex sequence of events that unfolded involved the roles of constitutional functionaries, including the Governor, the Deputy Speaker (and then the Speaker), the ECI and most importantly, the Court. The political sequence cannot be comprehended without considering the associated decisions by these constitutional functionaries, intermingling with each other and forming a web. As pointed out previously, the interim court order extending the time given to the rebel MLAs for replying to the first batch of disqualification petitions, on natural justice grounds, significantly altered the power equations. The intervening period saw an appointment of a Speaker to the vacant post, the Governor’s call for a floor test, and a change in government.

Now the Supreme Court has held that the decision of the disqualification petitions by the Speaker will only have prospective operation without having an effect on the validity of the proceedings in the intervening period (“Conclusion C”). As the Court recognized, the speaker’s role under the scheme of the Tenth Schedule becomes more significant when there is a factional dispute. It necessitates the speaker to prima facie decide the ‘real’ political party for the purposes of the Tenth Schedule in a situation where different factions emerge. The consequences of this will be discussed later in the essay. The mismatch between the position of the speaker, who continues to be a political figure, and the role entrusted to them, is bound to increase litigation, with consequent time lag, and result in ineffective or infructuous remedies (as in this case).

The continuing contradiction between the role of the speaker under the Tenth Schedule, which envisages the speaker as an impartial adjudicatory authority, and the actual workings of the office, was too visible for the court to have ignored in this case. The judgment glosses over these arguments without addressing the core concern about the partisan actions of the speaker. Constitutional romanticism regarding the supposed neutrality of the speaker continues to have its day. In this piece, by analysing the present judgment, I therefore highlight some inconsistencies that emerge under the current regime of the anti-defection law, which places the speaker at its centre.

The Interim Measure

The Tenth Schedule makes the Speaker the adjudicatory authority for disqualification petitions. The decision of the speaker is subject to judicial review, as held in Kihoto Hollohan.

Now, considering the possibility of misuse of the Court’s decision in Nabam Rebia, which had held that the Speaker was barred from adjudicating disqualification petitions if a motion for their own removal was pending, and which was referred to a larger 7-judge bench in this case, the Supreme Court here adopted an interim measure to serve the constitutional purpose of the Tenth Schedule. The Court held that the Speaker’s jurisdiction under the Tenth Schedule extends to deciding and ruling upon applications questioning said jurisdiction. Upon an application questioning the jurisdiction of the Speaker (a pending notice of removal under article 179(c) can be an example), the Speaker can either adjourn the proceedings under the Tenth Schedule if the application is bona fide, or proceed with the disqualification petitions with relevant reasons. This decision of the speaker is subject to judicial review.

This interim measure is meant to avoid a ‘constitutional hiatus’ in the operation of the Tenth Schedule. The constitutional ideal would be for the Speaker to act in a fair and impartial manner while considering application which questions their jurisdiction. In reality, this constitutional ideal is unrealisable because the Speaker continues to maintain their political affiliation. In most scenarios, the Speaker will be part of one of the political ‘factions’ that emerge or will have a stake in one of the factions of any other party with whom the possibility of government formation holds, as can be seen even in the Maharashtra political crisis. For example, the newly elected Speaker (whose position itself was a matter of challenge) appointed a new whip from the breakaway legislative party, with whom his party formed the government (an appointment that the court in its analysis held to be illegal). It is important to note that subjecting the decision of the speaker to judicial oversight is only part of the solution. As seen in this case, time holds crucial value in politics: a significant delay in judicial resolution would have altered the balance of power on the ground.

On Bypassing the Authority of the Speaker

One of the questions that arose was whether the court could decide on disqualification under the Tenth schedule, absent a decision by the speaker. The petitioners urged the court to decide on the matter of disqualification directly, because, they argued, the newly appointed Speaker was proven to be incapable of acting in a fair and impartial manner. The Court rejected this argument by citing a passage from Kihoto Hollohan which held that the office of Speaker embodies propriety and impartiality and that it is inappropriate to express distrust in the office of Speaker in a parliamentary democracy. It was held that since the Speaker was elected by MLAs (including the MLAs against whom disqualification petitions are pending), following the proper procedure laid down in the rules, the Speaker was the appropriate authority to decide the disqualification petitions. Petitioners contended that alternatively, it should be the Deputy Speaker, who was acting in the role of Speaker whose seat was vacant at the time when the alleged act constituting disqualification was made, to decide on the petitions. The Court rejected this on the ground that a Deputy Speaker acts only when the post of Speaker is vacant, and the post of Speaker was occupied as of July 3, 2022. Hence, in this anomalous situation, the incumbent Speaker is now going to decide on the disqualification petitions where the grounds for disqualification include going against the party whip issued to not elect him in the speaker’s election to fill the aforementioned vacancy. Thus, the vacant Speaker’s office at the relevant time effectively smoothed the process for the Shinde Faction, because the deputy speaker’s role was easily neutralised by electing a speaker from the party (BJP) with whom they formed the government, as opposed to the 14-day notice period that is required to remove a Speaker.

At this point, there are two aspects that merit consideration.

Rule of Law

The Speaker is undoubtedly a member of the political party that forms the government and is an active political figure, which the tenth schedule is incognizant of. There is ample evidence of the Speaker acting in a partisan manner by favouring the government and the ruling party. For the Speaker to continue to hold office, the support of a majority of MLAs is needed, which is usually provided by the MLAs of a ruling party or coalition parties forming the government. In this case, the Speaker was elected by the new coalition consisting of MLAs of the Shinde faction of Shiv Sena and the BJP, which then formed the government. Now, since the decision on the disqualification petition is entrusted to the Speaker, the Speaker’s decision will have a bearing on continuation of his own coalition government (since the Speaker continues to be a party member and a political figure). Impartial exercise of adjudicatory powers might lead to fall of the government of his own party/faction if the MLAs are disqualified. As a result, adjudication by the speaker has the potential to violate the principle of natural justice ‘nemo judex in sua causa ‘or that no one is a judge in his own cause. The court evaded this issue by maintaining the Kihoto line that great traditions of high office of Speaker are not to distrusted with and “…the robes of the Speaker do change and elevate the man inside”.

But it is no answer to say that the Speaker will indeed act impartially; the form of the Speaker’s office – who need not give up his party affiliation upon entering the office – permits reasonable apprehension of bias, which is enough to vitiate the proceedings. However, essentially, the Supreme Court has adopted a view that romanticizes the role of speaker by removing any link between the Speaker and the political party. This is far from the constitutional reality. Therefore, the present regime of anti-defection laws has the potential to violate the rule against bias, which is an essential ingredient of rule of law. The partisan role played by the Speaker was implied when the court held that the appointment of new whip and leader of the legislative party was illegal. But the Court refused to accord it the significance it deserved and deal with the consequences of its finding; rather, it continued to romanticize the high office.

On the Validity of Proceedings in the Interregnum

The second aspect is the continuation of the Speaker in the office. If the Speaker’s decision on disqualification relates back to the date when the act constituting the disqualification (i.e., the date of defying the party whip or act of voluntarily giving up the membership of the party) was made, the proceedings in the interregnum, which included the election of the Speaker himself, would be cast in doubt. Hence, it is probable that Speaker would decide against the disqualification petitions, being a judge in his own cause, and consequently failing to act in an impartial and fair manner. This line of argument was rejected by the Court by holding that the decision of speaker on disqualification and its consequences will not have a retrospective effect but only a prospective effect from the date of the decision (Para 92). The court did not find any authority on the question of whether the proceedings in the house in the intervening period, between the disqualification-inducing act and the decision by the Speaker, would be subject to the final decision on disqualification. The court considered it afresh and held it in negative. It held that MLAs are entitled to participate in the proceedings until they are disqualified, which is the date when the speaker makes the decision.

In its reasoning, the court held that situation under article 189(2) (which stipulates that the validity of any proceedings of the legislature shall not be questioned on the ground that it was discovered subsequently that a legislator who was not entitled to vote or sit, took part in the proceedings) never arose, because the decision of the speaker on disqualification is only prospective. The court interpreted Rajendra Singh Rana to mean that the relevant reference point of time for the Speaker’s decision on disqualification is the time of the prohibitory act under tenth schedule. It means that even though the Speaker makes the decision with reference to a back date, the consequences of the decision will take effect only from the date of the decision by the Speaker, i.e., the member may have incurred disqualification under the Tenth Schedule prior, but the seat becomes vacant only after the decision on disqualification by the speaker. This effectively means that the Tenth Schedule operates from the date the Speaker wishes for it to operate, because the rigours of disqualification are incurred only from the date the Speaker makes the decision, and the proceedings in the intervening period are protected. This is compounded by the fact that there is no time limit for the speaker to make a decision (without a judicial order). The only requirement is that the decision be made in ‘reasonable time’.

Speakers’ Role under the Tenth Schedule when there is an Effective ‘Split’

The Court held that the Speaker who is the adjudicatory authority under the Tenth Schedule, may be called to decide who is the ‘real’ political party or the ‘original political party’ for the purpose of disqualification under paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule. Since the defence of split is no longer available after the ninety-first constitutional amendment, one of the factions/groups is bound to lose out if they are considered by the speaker not to be the political party at the time the act constituting defection was made. When two or more factions issue whips, the court held that the speaker has to prima facie decide, for the purpose of para 2(1)(a) and 2(1)(b), which whip represents the political party (not the legislative party); but this has no bearing on the decision by the ECI under paragraph 15 of the  Elections Symbols (Reservation and Allotment) Order. Similarly, the Court held that the decision of ECI on which group or faction is the ‘real’ political party under paragraph 15 of the Symbols Order will have no bearing on the decision of the speaker, who has to decide which group or faction is the political party for the purpose of making a decision on the question of disqualification, with reference to the date on which the member voluntarily gives up his membership or defies the whip. This means that in the present case, the decision of the ECI recognizing the Shinde Faction as the real Shiv Sena will have no bearing on the decision of the speaker, who has to make a decision considering the facts on the day the act incurring disqualification was committed (see Part II of this series for a detailed critique).

The decision of the ECI under paragraph 15 of the Symbols order will only be prospective in operation. The court also held that the proceedings under paragraph 15 of symbols order cannot wait until the final adjudication under the Tenth Schedule. This is because, the ‘test of legislative majority’ is not the only test but merely one of the factors to be considered while making the decision. When legislative strength is in doubt (example, when disqualification petition is pending), other factors should be given greater weight.

Importantly, the court here is envisaging similar roles for the Speaker and the ECI in deciding who is ‘real’ Shiv Sena, albeit for different purposes, by banking on the impartial role that the Speaker ought to play. The factors which the Speaker has to consider overlap with the factors which the ECI considers while resolving factional disputes. In both cases, the Court discouraged using the ‘test of legislative majority’ and suggested looking for the structure of leadership outside the legislature (para 168), and other factors in cases where legislative strength is a matter of dispute, as in this case, because of pending disqualification petitions. In this scenario, it is entirely possible for the Speaker and ECI to reach different conclusions on which faction or group is the ‘real’ political party for the purpose of disqualification and granting symbols, respectively. Here again, the role, position and capacity of the Speaker to perform the task is doubtful. Since the Speaker could well be a member of a political faction, his functioning will be biased towards a particular faction. In absence of objective criteria like the strength in the legislature, subjective political considerations are bound to play a decisive role. This might result in the Speaker being the kingmaker, with his faction being saved from the proceedings of disqualification. It might be said that the decision of the Speaker is subject to judicial review, but once again, with the time factor making the crucial difference, it is unclear how effective this will be (as the present case itself amply demonstrates); furthermore, the repeated need for judicial involvement, thereby increasing the role of the judiciary in settling disputes of political nature, will not bode well for a constitutional democracy and judicial independence.

The original sin lies in the Tenth Schedule, which envisaged a quasi-judicial adjudicatory role for the speaker, who nonetheless continues to be a member of a political party either de facto or de jure. Recognising the pattern of partisan actions by the Speaker, the court in Keisham Meghachandra Singh vs Hon’ Speaker Manipur, made observations regarding the need for an independent adjudicatory mechanism outside the house in the form of a tribunal. The speaker being an authority within the house, and his tenure being dependent on the majority will, the court reasoned, create a potential for bias. Similarly, in Shrimanth Baladaheb Patil vs Hon Speaker, the court recognized the growing trend of speakers acting against their constitutional role of being neutral. Hence, this case once again underscores the need for a revaluation of the Speaker’s role under Tenth schedule.

Conclusion

With factional disputes reaching the courts and repeated instances of constitutional functionaries disregarding their constitutional role which leads to judicial intervention, the Court is becoming an arena for waging political battles. This ‘judicialization of politics’ by increasing the role of the court might lead to the court being accused of political bias. Outsourcing political decisions and the constitutionally entrusted roles of other functionaries to the courts is a growing trend. This has happened with explicit or implicit acceptance of political actors in the hope of favourable judicial decisions or simply to avoid making a decision to escape accountability. With politically consequential decisions increasingly emanating from the bench, the judiciary becomes the target for control, with threat to its independence. In political disputes like these, balancing the opposing political interests in the backdrop of judiciary’s institutional interest, judges are made to engage in a political balancing act.

One high constitutional office that has been repeatedly accused of partisan bias is the office of the Speaker. Disregarding constitutional conventions by the Speaker has been a regular feature both in the parliament and the state legislatures. This political crisis is a feature of it; paradoxically, however, the judgement reinforces that very existing framework of the Speaker at the centre of the Tenth Schedule, which is the cause of the problems that brought this dispute to Court.

The Supreme Court’s Maharashtra Political Crisis Judgment – II: On the Tenth Schedule and the Symbols Order [Guest Post]

[This is a guest post by Yogesh Byadwal, and continues this blog’s examination of the Supreme Court’s judgment in the Maharashtra Political Crisis case. Part One is available here.]

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Recently, the Supreme Court announced its verdict in Subhas Desai v. Principal Secretary, Governor of Maharashtra & Ors. The court concluded that the Governor was not justified in calling upon Mr. Thackeray to prove his majority and the decision of the speaker in recognising the whip appointed by Shiv Sena legislature party(SSLP) was incorrect, since a whip can only be appointed by the political party. The court rejected the request of restoring status quo ante since Mr. Thackeray did not face the floor test and tendered his resignation.

In this post, I will focus on the part of judgement dealing with the relationship between the Tenth schedule and Para 15 of symbols order. The Tenth Schedule of the Constitution – or the anti-defection law deals with disqualifications of sitting members of Parliament and state legislatures on grounds of defection from their political parties. Para 15 of the Symbols order, on the other hand, deals with recognition of registered political parties by the Election Commission of India (ECI) for the purpose of allotment and reservation of election symbols to the recognized political party, and further allotment of election symbols to the candidates sponsored by them at the time of elections.

On the relationship between the two, the Supreme Court concluded that the respective outcomes need not be consistent because each is based on different considerations. The Court held that the adjudication of any dispute under these laws must be independent of each other, and the decision of one authority cannot be relied upon by the other for deciding the matter under its own consideration. I argue that the reasoning used by the court, while acknowledging that the two proceedings are intertwined, creates an artificial separation. I will highlight three major inconsistencies in this judgement which will lead to undesirable results in the future. I have divided the posts in three parts to put into perspective the various aspects of the judgement. I conclude that the reluctance on part of the court to put the controversy to rest in the present case has implication for representative democracy, as the abuse of these provisions will continue unabated.

Positives

The judgement begins striking all the right notes. It acknowledges the intertwined relationship of the Tenth schedule and the Symbols order while deciding intra-party disputes. It notes:

When the Tenth Schedule and the Symbols Order are invoked concurrently, complications may arise … if the ECI applies the ‘test of majority,’ it will be required to consider (among other things) which of the two factions enjoys a majority in the Maharashtra State Legislature. Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the ECI. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification … the outcome of the dispute before the ECI may change depending on the outcome of the disqualification petitions.

I have previously argued here how the ‘different fields theory’ does not have an application when it comes to the Symbols Order and the Tenth Schedule. Rather, the decision under Para 15 of the Symbols Order has significant bearing on disqualification proceedings, since ignoring the same would have ‘irreversible consequences.’ Simply put, if the ECI decides that the rebel faction is the original political party, it would mean they never effectively left the party, engaged in anti-party activities, or defied any party whip. Therefore, the Speaker would have no grounds to disqualify the members. The observations in the judgement are clearly opposed to the reasoning which has been employed by ECI frequently in deciding Para 15 dispute – that Para 15 and the Tenth Schedule operate in two distinct fields. Also, the Court makes it clear that ECI is not supposed to use only the ‘test of [legislative] majority’ in each and every case as has been the practice post Sadiq Ali. Rather, the ECI can use other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order, such as an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party Constitution, or any other appropriate test. This will help in preventing abuse of the provision by simply proving the majority in legislative wing as in the present case.

Objections

The SC judgement is, however, problematic in certain aspects. I will highlight three instances where the judgement is flawed in its reasoning.

Firstly, the judgement holds:

… disqualification relates to the date on which the act of defection takes place to mean that acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect. In other words, subsequent acts or events do not have the effect of curing such conduct or releasing the actor from the consequences which follow.

This essentially means that once a legislator commits any act or omission which makes him liable for disqualification under Para 2, the Speaker can disqualify such member any time thereafter notwithstanding any act or event in the intervening period of the act of defection and decision of disqualification proceedings.

In the present case, this would mean that even if the Shinde faction was declared the ‘original Shiv Sena’ under Para 15 of Symbols order, its members would still be liable to be disqualified by the Speaker since the members of the Shinde Faction stood to be disqualified by the speaker for defying the Chief whip of the party. In fact, the court held:

The decision of the Speaker recognizing Mr. Gogawale as the Chief Whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party … The decision of the Deputy Speaker recognising Mr. Ajay Choudhari as the Whip in place of Mr. Eknath Shinde is valid.

This means that Ajay Choudhari was the whip of the legislative wing of the party in the relevant point of time. The whip was defied by the Shinde faction during various occasions when the whip called to vote against the ‘vote of no-confidence’ which, in turn, calls for disqualification under Para 2(b) . The disqualification will not lead to automatic disqualification from the party but only from the house.

Now suppose that the Speaker today disqualifies the thirty-four MLAs of the Shinde Group. Which party will they belong to? On the reasoning used, it seems obvious that the MLAs are not disqualified from the party to which they originally belonged to i.e. the ticket of the political party from which their faction emerged, which in this case is Shiv Sena lead by Mr. Uddhav Thackeray.

However, in the same breath, the court notes:

The decision of the ECI has prospective effect. A declaration that one of the rival groups is that political party takes effect from the date of the decision.

This observation would mean that the Shinde faction is the real Shiv Sena, and at the helm of the internal matters and decision. Here, my contention is that if the disqualification will relate back to the date when the impugned act was committed, as the Court notes above, reading it with the observation that such member will remain the member of the party on whose ticket he contested election, only one conclusion can be reached: The disqualified member will still be the member of the party, as it existed then, during the relevant point in time, when the impugned act was committed. In this case, the party Shiv Sena was headed by Mr. Uddhav Thackeray during the relevant point of time. One could argue that ECI order declared the Shinde Faction as the Original Shiv Sena and, therefore, Thackeray faction loses claim to it. However, I am trying to reconcile this situation with the observation of the court that ‘it is up to the political party and its internal process to determine whether to expel a member’. It is hopeless to expect that any action will be taken against the Shinde faction since its members are heading the organization. In this sense, to uphold the intention behind Tenth Schedule, it is essential that the party, as constituted during the relevant point of time, should get an opportunity to decide whether to expel such members. Arguing on the Court’s reasoning only, ‘acts or events subsequent to the commission of the conduct prohibited under the Tenth Schedule, do not have an exculpatory effect’. Therefore, it would be immaterial what the Election Commission holds in the intervening period, as the ‘taint of disqualification does not vaporize.’

The SC also notes that if only some members are disqualified from the group awarded the symbol, then remaining members will have to again apply for a fresh symbol under the Symbols order. Why? Why should the members who are not disqualified subject themselves to symbol order proceedings when they already have been assigned a symbol? Which party did they belong to then? The court provides no answer to these questions. Instead, the reasoning in effect renders the order of the Commission nugatory and ineffective based on the decisions of the speaker under Tenth schedule proceedings.

Secondly, the court recognises the interrelationship between Tenth Schedule and Symbols order, when it notes:

Therefore, which faction has a majority in the House will have some bearing on the outcome of the proceedings before the ECI. Whether or not a particular faction has a majority in the legislature will depend on whether members from that faction have incurred disqualification.

The court here recognises two scenarios-

1. The ECI renders its decision prior to the Speaker’s decision on disqualification ( as in the present case), or;
2. The Speaker decides the disqualification proceedings before ECI’s decision.

It is evident that the latter situation is the ideal position. Symbols Order Para 15 disputes are usually resolved by applying the ‘test of majority’ (among others) to decide which faction is to recognised as the original party. If the disqualification proceedings are completed prior in point of time, ECI will have a clear picture as to which faction commands the majority by accounting for the disqualified members. This would remedy the current situation where the faction declared to the original political party is itself subject to disqualification proceedings. The absurdity of the same has been noted in the previous argument.

However, despite acknowledging the intertwined nature of the proceedings, the Court notes:

To hold that the ECI is barred from adjudicating petitions under Paragraph 15 of the Symbols Order until the “final adjudication” of the disqualification petitions under the Tenth Schedule would be, in effect, to indefinitely stay the proceedings before the ECI….The ECI, which is a constitutional authority, cannot be prevented from performing its constitutional duties for an indefinite period of time. Proceedings before one constitutional authority cannot be halted in anticipation of the decision of another constitutional authority.

The express concern is that preferring one constitutional authority over another will impinge on the authority of the other. Also raised is the concern of ‘indefinite delay’ which may happen if proceedings before ECI is delayed until Speaker decides disqualification proceedings.

However, the decision of the Court, in fact, enables the encroachment of one constitutional authority over the exclusive domain of other in two ways.

First, the decision notes in Para 157 that it is necessary for the Speaker to determine which is the ‘original political party’ at the time the alleged act of defection was committed. I will consider two scenarios here:

1. Speaker decided prior to ECI
2. ECI decides prior to speaker

Consider a situation where Party X is divided into two faction, A & B. A has 60 and B has 40 members. The Speaker decides that A, in fact, is the original political party on whose ticket members of the faction B fought the elections. Under the Tenth Schedule, speaker disqualifies the members of B faction from the assembly. Note that the members are not disqualified from membership of the party. Therefore, members of B, according to court’s reasoning, will be considered members of Party X after disqualification. In this scenario, even before the ECI decides Para 15 dispute, the issue has been pre-decided by the speaker. The decision of the speaker, then, will have a significant impact on the ECI’s determination, as legislative majority is one of the factors it must consider.

Second, as I have argued here, if the ECI decides the dispute before Speaker, the proceedings before the Speaker become nugatory. For instance, in the present case, the Commission declared the Shinde-faction as the original Shiv Sena party, which meant it never left the party or indulged in anti-party activities or defied any party whip. The pending disqualification petitions are effectively pre-decided by the ECI even before the Speaker. The SC, moreover, notes (excerpted above) that members of the group who have been awarded the original party symbol and not been disqualified from the house, will have to apply under the Symbols Order for a fresh symbol. Isn’t the SC undoing the ECI order under Para 15 order allowing the symbol?

As can be seen, either way, the decision passed by the speaker or the ECI is impinging on the decision making authority of the other by pre-deciding the issue and leading to undesirable results.

Third, the court interprets the deletion of Para 3 of the Tenth Schedule to mean:

The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction. The defence sought to be availed of must be found within the Tenth Schedule as it currently stands…..The percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out.

The court realises, in fact, that in case where a split has occurred, the only recourse is to have the speaker decide which faction is the original political party. The numbers of the group will not matter; rather the ‘structure of the leadership’ determines the issue. However, the Court also notes that such determination will not impact any other proceedings including the proceedings under Paragraph 15 of the Symbols Order. The court is arguing that both the proceedings are independent of each other. It supplements this by saying that:

Whether the decision of the ECI under the Symbols Order must be consistent with the decision of the Speaker under the Tenth Schedule. The answer is no. This is because the decision of the Speaker and the decision of the ECI are each based on different considerations and are taken for different purposes

This raises the question of whether the court is wilfully ignoring the implications of the acknowledgement that the ‘tenth schedule’ and ‘symbols order para 15’ are intertwined. The aforesaid para gives a clear imprimatur that both constitutional authorities are clear to ignore the decision of the another despite the clear interrelated nature of the proceedings and the undesirable results that might follow. The court does not try to harmonize these processes. Rather, it argues on constitutional lines to argue that one constitutional authority cannot prevent the other from adjudicating where, on the other hand, it clearly allows them to effectively encroach on each other’s exclusive domain leading to undesirable outcomes.

Causes for Concern

It is disappointing that the judgment fails to put to rest the controversy even when it had the opportunity. In spite of recording that there exists an interrelationship between the Tenth Schedule and the Symbols Order, the Court stops short of providing any solution to the problem. This inconsistency is vulnerable to further abuse in the future. As in the present case, a rebel group within the legislature wing of the party may arise with ministerial ambitions, which, to escape the wrath of Tenth Schedule, will simply claim their group as the original political party based on numbers and hence appropriate the party as their own. The usual practice of the ECI to apply the ‘test of majority’ in such cases enables such tendencies, as it is satisfied with counting the numbers in the house rather than organization wing. This should sound alarm bells for smaller and regional political parties, where the numbers are easier to manipulate with allurements of money and ministerial posts. The present case exemplifies the abuse of this inconsistency, where the Party chief was himself ousted and his party appropriated by his legislators without any determinations as to the organisational structure or support in the organisational wing of the party.

For this reason, the Petitioners requested the court to lay down a ‘constitutional sequence’ to decide such matters which would ensure fairness. They proposed that the ECI must render a decision only after the Speaker decides the Tenth schedule petitions. However, on constitutional lines, court rejected this request. I have already established in this post why this is wrong. Also, if looked from constitutional lens, the request was in fact valid. The Tenth Schedule, which is part of the Constitution, must have precedence over over a statute such as the Symbols Order (see here) Thus, the Court’s reluctance to resolve the issue is unwarranted, and could lead to similar situations arising in the future.

Guest Post: The Speaker and the Anti-Defection Law – A a critique of Nabam Rebia’s interpretation of Article 179(c)

[This is a guest post by Pulkit Goyal and Debayan Bhattacharya.]

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Introduction

On 16^th March, 2023, a Constitution Bench of the Supreme Court reserved judgement on whether the Court’s previous decision in Nabam Rebia should be sent to a seven-judge bench for reconsideration. One of the principal questions before the Constitution Bench, headed by Chief Justice Chandrachud, is:

Whether notice for removal of a Speaker restricts him from continuing with disqualification proceedings under Tenth Schedule of the Constitution, as held by this Court in Nebam Rebia.

The Supreme Court [“Court”] in Nabam Rebia decided that it would be constitutionally impermissible for a speaker to decide on defection petitions during the pendency of a motion for the speaker’s removal under article 179(c). There were three key reasons for this decision: (1) the nature of the office of the speaker as being apolitical, (2) the irreversible harm that may be caused to the member of parliament who is disqualified and not allowed to take part in the proceedings for the removal of speaker, and (3) the interpretation of the phrase ‘all the then members of the Assembly’ present in Article 179(c). The flaws in the first two reasons have already been dealt with here. This blog post will focus on the flaws in the third reasoning of the court. 

Interpretation of “all the then members” 

For the purposes of this section it will be useful to reproduce Article 179(c) here: 

179. A member holding office as Speaker or Deputy Speaker of an Assembly—

…

(c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly:

Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days’ notice has been given of the intention to move the resolution.

The Court interpreted the phrase ‘all the then members’ to mean and signify all the members of the legislative assembly at the time notice of the intention to move a resolution for the removal of the speaker is given. In support, the Court relied on an amendment proposed in the Constituent Assembly on 2 June 1949 that was ultimately rejected. It proposed to replace the phrase ‘all the then members of the Assembly’ with ‘the members of the Assembly present and voting’. The Court relied on this rejection to reason that ‘then members’ did not refer to the members who were present and voting, but it referred to all members present when the notice of the intention to move a resolution for the removal of the speaker was moved. 

Objections to the Court’s Interpretation

There are three objections to this line of reasoning.

Firstly, the Court’s interpretation is not consistent with a plain reading of Article 179(c). The proviso mentions that a resolution to remove the Speaker cannot be passed unless at least fourteen days’ notice of intention to remove has been given. There is a distinction drawn between two different events: the first is the notice of intention to remove the Speaker, and the second is the actual resolution for removal. Article 179(c) uses the phrase “all the then members” to explicitly refer to the passing of the resolution, and not to the intention to move the resolution. Therefore, the time frame that “then” is referring to must be the moving of the resolution and not the giving of the notice. Since the language is clear, the Court’s reliance on Constituent Assembly Debates to aid interpretation is not necessary.

It may be objected here that this reading undermines the value of the Article. One of the Court’s anxieties in Nabam Rebia was to prevent the Speaker from altering the composition of the house before the resolution for removal was voted upon.  It is worth mentioning that the speaker enjoys substantial discretionary power to prevent members from taking part in proceedings of the house without disqualifying them anyway. For example, Rules 373 and 374A of the Lok Sabha Conduct of Business Rules give the speaker the power to order withdrawal or suspension of any member of the assembly. The interpretation proposed by the above paragraph would give such members a right to vote in the proceedings of removing the speaker. 

Secondly, even if we take a look at the Constituent Assembly Debates, it is apparent that the Court’s reasoning is a non sequitur. The amendment in the particular instance was rejected without debate. This means that we cannot assume the reasons for the rejection of the amendment. The members of the Assembly may have well rejected the amendment because they assumed that ‘then’ clearly meant ‘present and voting’ which did not require any clarification. The retention of the phrase ‘all the then members’ does not clarify which time period does ‘then’ refer to, which is where the debate lies.

A way past this roadblock is to take a look at the written submissions by the petitioners in the Maharashtra Case. The petitioners point out that the phrase ‘all the then members’ has been used in several other articles as well, such as Articles 67, 90, 94, 183. The Constituent Assembly Debates around Article 67 of the Indian Constitution [Draft Article 56] serve as a useful reference point. Article 67 lays down the term of office for the Vice-President. Article 67(b) states that the Vice-President can be removed by a resolution of all ‘the then members of the Council.’ While debating this on 29 December 1948,  Mohd. Tahir raised an amendment to replace ‘all the then members of the Council’ with ‘the members present and voting.’ He wanted to clarify that the only people who can vote are those that are present on the given day, and not those that are members of the Council but are not present when the resolution is being passed.

Dr. Ambedkar opposed the amendment. He explained the import of the amendment in the following words:

That word ‘then’ is important. The word ‘then’ means all members whose seats are not vacant. It does not mean members sitting or present and voting. It is because of this provision, that all members who are members of Parliament and whose seats are not vacant, that their votes also have to be counted, that we have said—passed by a majority of the then members.

[W]e have to use the word ‘then’ which is intended to distinguish the case of members present and voting, and members who are members of the House whose seats are not vacant, and voting.

Ultimately, the amendment was negatived. The concern of the framers is clear: The main reason Mohd. Tahir wanted to introduce the term ‘present and voting’ was to ensure that absent members whose seats were not vacant would not have the chance to vote. On the other hand, Ambedkar wanted these members to have a vote as well, even if they were not physically present when the resolution was passed. The rejection of the amendment had no relation to members who were disqualified, as disqualification leads to vacancy of seats; however, the debate centred around the voting rights of members whose seats were not vacant, but they were not present at the time of voting. The voting rights of disqualified legislators was explicitly excluded from the purpose of the Article. Nabam Rebia’s portrayal is therefore simply misleading.

In fact, this conclusion is buttressed if we take a closer look at Mohd Tahir’s justification in the Constituent Assembly. He said:

Now, the provision ‘all the then members of the Council’ also includes those members who, although they are members of the Council, may be absent from the Council, but the intention evidently is that the resolution should be moved and passed by those members who are present and voting…

Mohd. Tahir also moved the amendment with the assumption that the provision would only come into play when the resolution is actually being voted upon, and not when the intention to move a resolution is expressed. This assumption was not directly challenged by any other member of the Assembly during the debate. The Court’s selective reading of the Constituent Assembly Debates therefore does not present a full picture.

The third objection concerns the absurd consequences of the interpretation forwarded in Nabam Rebia. One absurd consequence, which has been forwarded by the petitioners, is that a mere notice of an intention to move a resolution for removal of speaker puts the functioning of the speaker under the tenth schedule to a halt and protects “‘constitutional sinners’ who commit the sin of defection”. This is especially pertinent in light of the fact that wrongful disqualification because of defection is judicially reviewable, whereas the wrongful removal of a speaker enjoy significantly more immunity from judicial review. 

Another absurd conclusion requires recognition of the fact that defection is just one of the ways in which disqualification happens. Article 102 lists several more grounds for disqualification and the Representation of the People Act, 1951 lists still more. As an example, we might take disqualification under section 8 of the Representation of the People Act, 1951, which happens on grounds of conviction of certain offenses and imposition of certain sentences. The language of the statute is sufficiently clear, especially post Lily Thomas, that disqualification occurs on the date of conviction. [for issues with Lilly Thomas and jurisprudence that has developed since, see here].

Now the issue that arises, post Nabam Rebia, is what happens in case a member stands disqualified under section 8 of Representation of the People Act when after a notice of intention under Article 179(c) is given but before such resolution is moved. If in fact ‘then’ in Article 179(c) refers to when the notice is given, does the member cease to be a member of the legislature for all purposes except to decide a resolution for the removal of the speaker? This is surely an absurd conclusion. Further, it is not difficult to think of similar situations of members being declared insolvent and of unsound mind and thus being disqualified under Article 102 during the pendency of a notice under Article 179(c). While this contention was briefly considered by Justice Misra in his concurring opinion in Nabam Rebia, it was summarily rejected on the grounds that disqualification on grounds of defection is different from disqualification on other grounds, without providing any grounds on why they are different. Answering this question will probably lead to further confusion and debate regarding the political/apolitical nature of the speaker’s office. However, in the absence of reasons provided and considering the consequence of disqualification in both cases is similar, which is vacancy of the seat, the interpretation given in Nabam Rebia of the phrase must be rejected.

Conclusion 

The Court in Nabam Rebia interpreted the phrase “all the then members” in Article 179(c) to refer to the composition of the house when the notice of the intention to move a resolution for the removal of the speaker is moved. The Court interpreted the rejection of an amendment which sought to replace the phrase “the members of the Assembly present and voting” for “all the then members of the Assembly”, to mean that “then” refers to the time of giving of notice and not to actually moving the resolution. It has been argued that such a reasoning is non sequitur and that in fact a plain reading of the text Article 179(c) supports a different interpretation: that “then” refers to the time of actually moving the resolution. It has been further shown that the court selectively read the Constituent Assembly Debates in Nabam Rebia and that a more complete reading of the debates reveals that the phrase “all the then members” was not meant to cover cases that the Court discusses. Lastly, it is shown that the interpretation in Nabam Rebia leads to absurd conclusions when disqualification through other means is considered. 

Ultimately, if we are to answer why disqualification by other means is different from disqualification by defection, we will require the Court to deal with the question whether or not the office of the speaker is political or not. The current jurisprudence, as has been critiqued here, seems to jump between no and yes. While the overall trend has been to treat the speaker as independent and above politics, and this in fact forms a major strand in the reasoning justifying conferring speaker with the power to decide on issues of defection in Kihoto Hollohan and even in parts of Nabam Rebia, there are discordant notes being struck now, such as Keisham Meghachandra where the court observed that the speaker should be replaced by an independent tribunal headed by a retired judge. Even within Nabam Rebia, the Court voices its anxieties concerning the speaker deciding defection petitions on political grounds. The decision of the current Constitutional Bench has the potential to endorse a more realistic judicial vision of the Speaker.

Guest Post: Disqualifications and the Role of the Speaker in the Maharashtra Political Crisis

[This is a guest post by Rohan Srivastava.]

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On 16 February 2023, a 5-judge constitution bench of the Supreme Court heard a petition filed by Uddhav Thackeray’s group impugning the correctness of the Court’s view on the speaker’s power to disqualify rebel MLAs under the tenth schedule in the case of Nabam Rebia. The Supreme court in this 2016 judgment had held that whenever there is a notice for removal pending against a speaker he shall be disabled from deciding any disqualification petitions filed under the tenth schedule, which is the anti-defection law of India. This ruling has recently re-entered the public discourse, following the events of the Maharashtra political crisis, where a notice was filed against the speaker to allegedly disable him from disqualifying the rebel MLAs in Uddhav Thackeray’s camp.

CJI Chandrachud, while reserving judgment on whether the case needs to be reconsidered by a larger bench, remarked that:

It is a tough constitutional issue to answer for this reason that the consequences of both positions have very very serious ramifications for the polity.

This piece shall seek to answer why exactly Nabam Rebia presents itself as an unsolvable case on the role of the speaker. It shall do so by first explaining the reasoning in Nabam Rebia which, although sound, has led to the creation of loopholes in the operation of the Tenth Schedule. This piece shall also elaborate exactly what these loopholes are. Having done so, the last section shall ponder why such a deadlock has arisen regarding the role of speaker by pointing out the incongruity between the constitutional mandate of the speaker and the role ascribed to the speaker under the tenth schedule.

The Verdict in Nabam Rebia

The Nabam Rebia case dealt with the political turmoil that ensued in Arunachal Pradesh in 2015. The case involved a complex fact scenario and a host of issues. This piece shall stick to the facts relevant for the speaker issue. In 2015, 13 MLAs of the opposition had moved a notice against the speaker for his removal under Article 179(c). This notice came in the backdrop of a politically precarious situation where the congress party was struggling to keep its flock together due to a rebel group that had emerged within the party. Shortly after the notice, failing to control the rebel group, the congress leadership filed a disqualification petition against the rebel group under the tenth schedule. The speaker eventually ended up disqualifying the rebel MLAs and did not adopt the resolution of the removal of the speaker despite the fact that the 14-day notice period was over.

The issue before the Supreme Court was whether the speaker was competent to disqualify MLAs and thereby alter the composition of the house, when his position as the speaker is itself under question.

The court claims to have resolved this dilemma by noting that:

When the position of a speaker is under challenge, through a notice of resolution for his removal, it would “seem” just and appropriate, that the Speaker first demonstrates his right to continue as such, by winning support of the majority in the State Legislature. 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.

In answering this question, the court seems to be motivated by ethical consideration and principles of natural justice which undoubtedly would be affected if the Speaker is allowed to exercise his powers under the tenth schedule. In such a case the speaker could easily alter the composition of the house to ensure that the political status quo is maintained, and he survives the resolution for his removal, by disqualifying only those members who support his removal.

Reliance was also placed on the wording of Article 179(c), to provide constitutional backing which uses the words “all the then members of the Assembly”. The court noted that:

… the words “passed by a majority of all the then members of the Assembly”, would prohibit the Speaker from going ahead with the disqualification proceedings under the Tenth Schedule, as the same would negate the effect of the words “all the then members”, after the disqualification of one or more MLAs from the House. The words “all the then members”, demonstrate an expression of definiteness. Any change in the strength and composition of the Assembly, by disqualifying sitting MLAs, for the period during which the notice of resolution for the removal of the Speaker (or the Deputy Speaker) is pending, would conflict with the express mandate of Article 179(c), requiring all “the then members” to determine the right of the Speaker to continue.

It is conceded that the above reasoning provides compelling reasons why there should be a bar on the speaker from disqualifying MLAs under the tenth schedule when there is a notice against the speaker himself. Yet in relying on these, it cannot be said that there is no adverse impact on the operation of the Tenth Schedule of the constitution. This Nabam Rebia position only does justice to 179(c) and not to the tenth schedule.

The ‘Mischief Potential’

As P.D.T Achary puts it, the Nabam Rebia position has vast ‘mischief potential’. If the speaker, who is the sole adjudicatory body on anti-defection, can be disabled by a mere notice for his or her removal, this would amount to nothing short of a blind spot in the Tenth Schedule where horse-trading can go on unnoticed.

The court in Nabam Rebia answered this clash with the tenth schedule by claiming that the bar on the speaker allows Article 179(c) and the tenth schedule to operate in their own individual fields.

If a Speaker survives the vote, on a motion for his removal from the office of Speaker, he would still be able to adjudicate upon the disqualification petitions filed under the Tenth Schedule. The process of judicial review, cannot alter the above position. But, if a disqualification petition is accepted by the Speaker, the disqualified MLAs will have no right to participate in the motion moved against the Speaker under Article 179(c) … it is apparent that the difficulty arises only if the disqualification petition is taken up first, and the motion for the removal of the Speaker is taken up thereafter.

In holding that the bar on the speaker does not impinge upon the operation of the tenth schedule, the Court is wrong on two counts. Firstly, it assumes, and explicitly remarks as well, that deciding a resolution under 179(c) takes ‘no time at all.’ Such an assertion is ignorant of the wording of 179(c) itself which says that the notice shall be provided to the speaker 14 days prior. Since the bar on the speaker for deciding disqualification petitions would come into play from the date of receipt of notice, it is clear that any defecting party will mandatorily disable the speaker from deciding the disqualification for a minimum of 14 days at least, just by sending a notice. It won’t be a surprise if the duration between the notice and the motion ends up being way longer.

Aware of this, in the current proceedings before the 5-judge bench, the Udhav Thackeray group has submitted that the operation of the bar on the speaker should only operate during the voting process. It is very unlikely that this would be accepted, given that all the concerns of the speaker altering the composition of the house which were voiced in Nabam Rebia would arise again, and it is unclear what purpose a bar during the voting process alone would serve.

Secondly, and this is a more glaring oversight, the court ignores that under the constitution of India, the speaker is a political figure and who enjoys the confidence of a house where voting is done along party lines. This is relevant because the MLAs who change party affiliations are under no obligation to be bound by the party whip if it asks them to vote for or against the motion for removal, as they are already liable to be disqualified under the Tenth Schedule, and violating the whip will not be of any consequence for them.

When the court insists in Nabam Rebia, that a speaker who has the confidence of the house should not hesitate in facing the motion for his removal, the court overlooks the fact that ‘confidence of the house’ in such a scenario includes the confidence of the very MLAs liable to be disqualified by the speaker and who do not deserve a vote on the motion by virtue of the Tenth Schedule. It is anybody’s second guess that these defected MLAs would in all probability want to vote against the speaker of the party from where they have defected from.

This can especially be problematic in small state assemblies, where even one or two defections can make the speaker lose the confidence of the house and lose the motion of removal, being barred from disqualifying these defectors. Having removed the speaker of the ruling party, the defectors can, along with the opposition party to which they have defected, vote in a speaker who can then sit on their disqualification petitions for a long time, as has been done in many states so far. These consequences clearly show a negation of the aims of the Tenth Schedule to promote political stability, as was held in Kihoto. It would thus be wrong to insist, as the court in Nabam Rebia does, that there is no conflict between the tenth schedule and 179(c).

The Tenth Schedule: A Constitutional Mismatch

As apparent from the preceding sections, the question in the case of Nabam Rebia seems to be a zero-sum game, where the court cannot uphold either 179(c) or the Tenth Schedule without prejudicing the other.

The reason why such a situation has arisen is because the role of the speaker envisaged in the Tenth Schedule and the role envisaged in the constitution are at odds with each other. Such a contradiction exists because the Tenth Schedule, being incorporated as late as in the year 1985 failed to properly appreciate the constitutional scheme of India and the role of speaker envisaged therein, before vesting an adjudicatory role with him. In light of this, it is also pertinent that the court’s reliance on the Constituent Assembly Debates in Nabam Rebia to interpret the word ‘then existing members’ is also questionable, because as P.D.T Achary points out, the Tenth Schedule was nowhere in the contemplation of the constituent assembly when they incorporated the said words.

The 1985 Amendment which brought in the Tenth Schedule also failed to appreciate that the speaker is not an impartial apolitical player in Indian polity. The speaker remains the member of a political party in India, and it would be very wishful thinking that any party bias will not creep into his adjudicatory functions. There have been numerous instances of such bias coming into play, which has also been widely commented upon, interesting instances of which are Telangana and Manipur.  The latter case even led to the Supreme Court making observations that the speaker should be replaced by an independent tribunal instead.

Despite these controversies and very clear contradictions between the envisaged role for the speaker in the Tenth Schedule and the constitution, the court in Kihoto Hollohan upheld the adjudicatory power vested with the speaker under the tenth schedule. It noted that:

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 to change and elevate the man inside.

Before making these observations, the Court cited various opinions of prominent English jurists etc. which talked about the role of speakers in parliamentary democracies generally. It is true that the speaker may be expected to be “above parties and above politics” as noted by the court, in the British parliamentary democracy setup. But that is because, in the UK , the speaker is required to end all party affiliations upon being elected as a speaker so that he can remain impartial. It is because of this reason that both the Labour and Conservative parties in the UK have not expressed any displeasure at the functioning of the speaker in the House of Commons till date. However, this is clearly not the case in India, where the speaker is clearly a political figure, and free to attend political meetings etc. It is clear that the 52^nd amendment merely imitated other jurisdictions which vest this adjudicatory function with the speaker and incorporated it without regard to the Indian constitutional design, and this has led to the controversies around the role of the speaker under the tenth schedule.

In Kihoto, the issue of vesting adjudicatory authority with the speaker was a constitutional design question that had to be evaluated with reference to the constitutional provisions, and not upon some foreign euphemism of the role of speaker drawn from other jurisdictions. What was to be seen was whether the constitutional scheme of India allows for the speaker to act as an independent adjudicatory authority for the tenth schedule or not. Instead, the majority opinion in Kihoto emphasized more on whether the aims of political stability etc. were constitutionally permissible, ignoring the blatant incongruity between the constitutional mandate of the speaker and the role of the speaker as envisaged in the constitution of India. It is this oversight that now comes to haunt the courts in cases like Nabam Rebia.

Separating Power: The Kenyan Supreme Court’s Judgment on Constituency Development Funds

The separation of powers is assumed to be an integral element of contemporary democratic constitutionalism. However, mapping the ideal of the separation of powers onto the complex reality of the modern administrative State is a challenging task. Enforce separation too rigidly, and governance will become impossible. Allow for too much leeway, and you risk a drift towards concentration and centralisation of power. How and where to draw the line has been a vexed question, which constitutional courts across the world have been forced to grapple with.

Introduction

In this context, the judgment of the Supreme Court of Kenya in The Institute for Social Accountability vs The National Assembly (8th August 2022) is a landmark judicial contribution to this global conversation. At issue before the Supreme Court was the constitutionality of the Constituency Development Fund Act of 2013 (as amended by Act No. 36 of 2013) [the “CDF Act”]. In short, the CDF Act created a fund [the “Constituency Development Fund”, or “CDF”], with money up to 2.5% of national government revenue collected in the financial year. The CDF would be used to fund various “community-based projects”, for the benefit of “a widespread cross-section of the inhabitants of a particular area” (s. 22(1)). The implementation of these projects would be monitored by the Constituency Development Fund Committee of the particular constituency (s. 31(3)). Importantly, eight out of ten members of the CDF Committee were to be appointed by the local member of parliament (who was, himself, an ex officio member of the Committee) (s. 24(3)).

The Issues

If we take a step back, therefore, we can see that in simple terms the CDF was (a) a national fund, (b) to be deployed for developmental projects on a constituency-wise basis, and (c) the implementation of the projects was under the effective control of the local MP. To Indian readers, this will be rather familiar: it is quite similar to the MPLAD scheme.

The CDF Act was challenged before the High Court of Kenya, which found it to be unconstitutional. The High Court’s judgment was partially upheld and partially reversed by the Court of Appeal. The case then traveled to the Supreme Court of Kenya, which – by its judgment on 8 August 2022 – also found the CDF Act to be unconstitutional in its entirety.

The gravamen of the substantive challenge before the Kenyan courts can be summed up through the following two propositions: first, the CDF Act undermined the devolved system of government under the Kenyan Constitution, by setting up a parallel, third level of government (at the constituency level), in addition to the national and the county levels, without constitutional sanction (this is essentially a federalism challenge, although – as we shall see – the Court did not analyse it in federal terms); and secondly, the CDF Act violated the separation of powers by granting MPs – who are part of the legislature – essentially executive powers of administration and implementation of developmental projects. There were other – procedural – challenges as well: for instance, it was argued that the CDF Act substantially affected the functioning of county governments. This required it to be scrutinised by the Kenyan Senate (the “Second Chamber”), which – under Article 96 of the Constitution – is tasked with representing the Counties, and safeguarding their interests. This, however, had not been done.

The Involvement of the Senate

On the procedural issue, the Supreme Court found that the 2013 amendment to the CDF Act had transferred the constitutional basis of the CDF from Article 202(2) of the Constitution (which authorises the national government to make “additional allocations” to county governments) to Article 206(2) of the Constitution (which authorises withdrawal of money from the Consolidated Fund). The Court found that this alteration of the constitutional basis of the CDF “had an effect on the functioning of country governments” (paragraph 64). In particular, the CDF Act contemplated that projects would pertain to infrastructural development, such as roads, health, agriculture, and trade, which were within the domain of county governments (paragraph 71). For this reason, the Senate’s involvement was a constitutional pre-requisite, before the CDF Act could have been validly passed (paragraph 72).

While this finding is logical enough, there are two interesting aspects. The first is that in this case, the Speakers of the National Assembly and of the Senate had resolved that the CDF (Amendment) Bill – as it then was – did not concern counties, and therefore, did not need to be tabled before the Senate. The Supreme Court’s response to this was straightforward: it upheld the High Court’s finding that while the decision of the Speaker(s) merited due deference, it did not oust the power of the Court to answer a “question regarding the true nature of legislation.” (paragraph 75) In other words, therefore, despite the Speaker’s position as the leader of the House, their decision on the character of legislation would be subject to judicial review. Naturally, this would apply to other situations as well, such as – for example – classification of bills as Money Bills. The importance of this finding lies in the fact that it allows the judiciary to act as a safeguard against partisan speakers, who can help the ruling party in the First Chamber circumvent the participation of the Second Chamber simply by mis-classifying bills as Money Bills (or, as in this case, as not involving county governments). This is particularly significant, as the Kenyan Constitution does not explicitly guarantee or protect the independence of Speakers. And once again, Indian readers will recall that the exact same issue has been pending before the Supreme Court of India for the last four years.

Secondly, it was argued that the CDF Act offended constitutional design by violating federal principles. The Supreme Court rejected this argument by noting that the Kenyan Constitution was not federal, but a “unitary system of government that decentralises key functions and services to the county unit.” (paragraph 80) It is submitted, with respect, that the distinction between a federal system, and a unitary system with devolution is not an iron-clad one, and there are cases where terminology might obscure more than it reveals. Indeed, if we look at the Supreme Court’s actual analysis on the devolution question (which we shall turn to in a moment), we find that is actually far more respectful of core federal principles than many other “formally” federal polities.

On Devolution

As indicated above, the first core substantive argument before the Court was whether the CDF Act offended the division of functions between national and county governments (see Article 6 of the Constitution). In simpler terms, the issue was whether the CDF Act basically undermined the decentralisation of power guaranteed under the Constitution of Kenya. The Court noted that under Article 95 of the Constitution, the powers of the National Assembly included legislation, oversight over national revenue and its expenditure, and allocation of national revenue between levels of government, but not “the power to implement projects as a service delivery unit at the county level” (paragraph 83). The service delivery mandate was essentially an executive function at the county level, and was therefore meant to be exercised by County Executive Committees which, under Article 179 of the Constitution, were meant to exercise the “executive authority of the County.” Thus, according to the Court:

…where a Member of the National Assembly is allowed to play a role related to functions vested in devolved units, then this will compromise the vertical division of powers between the national and county governments. (paragraph 85)

And in particular:

Subsidiarity is the broad presumption that sub-national governments ought to be assigned those functions and powers which vitally affect the life of the inhabitants and allow the development of the country in accordance with local conditions of sub-national units, while matters of national importance concerning the country as a whole and overarching policy formulation are assigned to the national government. (paragraph 88)

The Supreme Court thus held that the Constitution did not authorise the “national government to … usurp the mandate of the county governments.” (paragraph 90) Nor did it authorise a “third level” of governance, tied to the constituency. Crucially, the Court noted that this was because the constituency – in an electoral system – was tied to the idea of political representation, and not service delivery: in essence the constituency is an electoral unit, with its function tied to the functions vested in an MP; and that role, essentially, is a legislative role. (paragraph 92) For this reason, the CDF Act could not be saved by tying it to the unit of the constituency, as the whole purpose of having “constituencies” in the first place was entirely different. I would respectfully submit that this is a very important finding: a clear separation between the constituency as a unit for political representation, and as a unit of service delivery, provides the conceptual foundation for preventing the concentration of power at the level of the MP: it prevents a situation where MPs serve both as legislators, but also as dispensers of project-linked patronage in their constituencies, and – arguably – prevents the incumbency bias that comes along with placing MPs in charge of disbursal of funds for project development within the constituency.

On the Separation of Powers

Indeed, this last bit was an important feature of the Supreme Court’s separation of powers analysis. Arguments before the Court on this point followed a familiar theme, with the Appellants arguing that the CDF Act violated the separation of powers by vesting executive functions with legislators, and the Respondents arguing that there was no such thing as “pure separation of powers.” However, the Court’s response to this is of particular significance. The Court accepted that the Kenyan Constitution did not follow a “pure” separation of powers model, where the branches of government were hermetically sealed off from one another (indeed, which Constitution does?). However, that did not resolve the question in favour of the Respondents. The crucial question that needed to be asked was what purpose separation of powers was meant to serve in a particular constitutional system, and to derive its content from that analysis.

Here, the Court then found that the purpose of the separation of powers was essentially to prevent concentration:

Kenyans having witnessed excesses of absolute power vested in the Executive branch which operated with abandon and riding roughshod over other state institutions sought to constrain and temper the exercise of public power. Citizens during the pre-2010 dispensation chose to respond to excesses of that legacy by explicitly dividing state power into three branches of government to preclude the exercise of arbitrary power. (paragraph 116)

Keeping this in mind, the Supreme Court proposed a two-pronged test for determining when, in a given case, the separation of powers had been violated: first, ask whether a state agency was straying into the “nucleus, core functions, or pre-eminent domain” of another branch of government, from a functional point of view (as discussed in the previous paragraph); and secondly, ask whether the exercise of the impugned power would threaten the values and principles articulated in the Constitution. (paragraph 118) Applying this two-pronged test, the Supreme Court then found, first, that the Constitution was clear about what legislative power entailed: it was representation, legislation, and oversight over the government (paragraph 120). Under the CDF Act, however, through the Constituency Development Fund Committee, MPs were “in effective control [of the Committee] and that means that he/she influences the selection, prioritization of projects, allocation of funds and also monitors the implementation of the projects.” (paragraph 124) Therefore:

This means that the Fund, as conceived under the CDF Act 2013, vested in the Legislature and its personnel – being the Members of the National Assembly, functions that typically fall within the nucleus, core function, or pre-eminent domain of the Executive branch. (paragraph 124)

What of the separation of powers in terms of constitutional values and principles? Here, the Court found that a core function of the separation of powers was to bring about a system of checks and balances, leading to accountability and good governance. At the heart of this was the avoidance of conflict of interest. However, the CDF Act created an open conflict of interest by giving to MPs a personal stake in the determination and implementation of projects out of the National Assembly’s CDF fund. In other words, MPs could not effectively perform their oversight functions over the use of the Fund, if they themselves stood to benefit politically from decisions about its implementation (paragraph 127). Thus, the Court summed up by holding that:

We, therefore, find that a Fund operating outside the strictures of separation of powers and the system of checks and balances would not be constrained given the absence of legislative oversight and therefore would be prone to be abused. In effect, a Fund that allows personnel from the Legislative branch to exercise executive powers is problematic from a constitutional lens. In the context of this case, we adopt the view that the constitutional scheme on separation of powers should be upheld given its implication for underlying constitutional values; that is, the maintenance of accountability and good governance. Were we to adopt a contrary approach, as urged by the respondents, even for the best of policy reasons, these constitutional values and principles will be eroded. (paragraph 129)

Comparing Institute for Social Accountability and Bhim Singh

The rigorous and in-depth analysis of the Supreme Court of Kenya stands out particularly starkly when we compare it with the judgment of the Indian Supreme Court in Bhim Singh, where the constitutionality of the MPLAD scheme was challenged (I have briefly analysed this case here). On the issue of the separation of powers, the Supreme Court repeated the mantra of there being no “strict” separation of powers, that “each one of the arms at times perform other functions as well“, and that “it is quite logical for the Member of Parliament to carry out developmental activities to the constituencies they represent” (needless to say, there was no explanation forthcoming for why this proposition is “quite logical”, because – unlike the Supreme Court of Kenya, there was no analysis of the role played by the “constituency” in the political process).

The Supreme Court also repelled the separation of powers challenge by noting that under the scheme the power of the MP was a “recommendatory” power, with the decision about which projects to implement lying with the district authority. Once again, though, the judgment of the Kenyan Supreme Court shows us how a Court need not equate form with substance: even under the CDF Act, the relevant MP was not directly implementing projects, as though he or she was a personal administrator. Rather, what the Court found was that the scheme, as a whole, gave to an MP a measure of effective control over how projects were selected and implemented. It is abundantly clear that MPLAD – in slightly different ways – has the same effect.

The federalism challenge was dealt with by the Supreme Court in similarly superficial fashion, by noting that India is a “quasi-federation”; indeed, it is particularly ironic that the Supreme Court of India used the mantra of the “quasi-federation” to avoid any serious analysis of whether the MPLAD scheme violated the Constitution, while on the other hand, the Supreme Court of Kenya – even while insisting that the Constitution of Kenya is unitary – engaged in a much more detailed consideration of whether the CDF Fund violated the devolved scheme of powers between national and county governments set up under the Constitution of Kenya. One can only wonder what the outcome of Bhim Singh would have been, had the Indian Supreme Court taken a principled approach towards the separation of powers and federalism under the Constitution, rather than a box-checking exercise.

Conclusion

In my view, the judgment of the Supreme Court of Kenya in Institute for Social Accountability vs The National Assembly is a landmark judgment, that makes many significant contributions to the global conversation around constitutional democracy. Among the highlights are: (a) the Supreme Court’s finding that the Speaker’s classification of bills is subject to judicial review, especially in situations where the participation of the Second Chamber turns upon how a bill is classified; (b) the Supreme Court’s clear analysis of the role of the constituency as a unity of political representation, and not of service delivery – and the consequences this has for the powers of MPs; (c) the Court’s principled, two-pronged test for when functional separation of powers is violated, and – in particular – its emphasis on preventing concentration of power and enabling accountability as the basis of the doctrine; and (d) its application of the principle to the case at hand, including the articulation of the distinction between legislative functions and executive functions.

Indeed, if we read the judgment as a whole, what comes through most clearly is the Supreme Court’s pushback against a blurring of legislative and executive functions in a way that makes the constitutional terrain the site of a centralising drift. Although the Court doesn’t say so in as many words, its insistence on articulating the doctrine of separation of powers in a way that gives it “analytical bite” shows a clear preoccupation with preserving the Constitution as a check upon the centralisation of power. In this, there are lessons for all of us, around the world.

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[My thanks to Joshua Malidzo Nyawa for giving this piece a once-over.]

Money Bills and Judicial Review: Lessons from a Constitutional Crisis in 1911 [Guest Post]

[This is a guest post by Rahul Narayan.]

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A little over a century ago, Britain was headed for a Constitutional crisis due to severe differences between the Conservative party dominated, more-or less hereditary House of Lords and the elected Liberal Party dominated House of Commons. Matters came to a head in 1909 when the Lords rejected the Finance Act passed by the Commons leading to a resignation of the government, and political turmoil and elections. By 1911 a newly minted Liberal party majority in the Commons wished to remove the power of the Lords to reject Money Bills and derail other reform legislation. Thus began discussions on what became the Parliament Act 1911.

In many ways this was a continuation of a historical process. The right to originate bills of “aid and supply” had traditionally rested with the Commons since the Magna Charta. In 1671 and 1678 the Commons had passed resolutions denying the Lords the right to amend finance bills. This was accepted by the Lords, who only insisted that no unrelated matter be “tacked” on to the bills of supply to avoid scrutiny of the Lords on such unrelated questions because such tacking would be “unparliamentary” and would tend to “the destruction of Constitutional Government”. This sentiment was accepted by Commons in 1702. Bills of aid and supply were passed as consolidated Finance Acts after the 1860s to discourage the Lords from rejecting individual components of finance bills as it was believed the Lords would hesitate in striking the entire Finance Act. The skirmishes between the Lords and Commons from 1906 to 1909 which culminated in the rejection of the Finance Act 1909 only precipitated the end of the last remaining power of the Lords re money bills- the right to reject them.

In 1910, the Lords, stuck between the Scylla of money bill reform and the Charybdis of wholescale restructuring of the Lords to remove their hereditary privileges bowed to the inevitable and agreed not to press their Constitutional privilege to reject money bills asking in return only that the ancient malpractice of “tacking” be dealt with appropriately.

The quickly agreed contours of the discussion as regards money bills were: (a) The Commons had the sole privilege to pass or reject money bills; (b) No extraneous matter would be tacked on to a money bill to avoid scrutiny of the Lords.

In England, each House is the judge of its own privileges. Thus the Commons majority rejected the suggestions made by the Conservative opposition and by the Lords that either the courts or a Joint Committee decide when a bill was a money bill. The decision was that of the Speaker alone. Eventually it was decided that the Speaker would certify the bill as a money bill if practicable after consultation with 2 members of the House of Commons, one from each side of the House.

Extensive and learned debate was carried out in the Commons between PM Asquith, Samuel and Churchill (then a liberal) on the Government side and Balfour, Anson and others for the Conservative opposition on whether the actual definition of a Money Bill conformed to the contours everyone agreed upon. Speaker after speaker expressed the fear that the broad based definition of money bills could result in extraneous matters being tagged by the Speaker as a money bill to remove scrutiny of the House of Lords on important questions. The government tried to dispel these fears in two ways. Firstly, they argued that section 1 of the Bill only formalised the existing legal position on Money Bills alone. Secondly, they said that the word “only” in draft signified that nothing extraneous could be tacked on to a money bill. On 11^th April 1911 PM Asquith stated that a law appointing 2 new high court judges would not be a money bill despite the fact that it would involve expenditure from the consolidated fund because “No human being could say that was a Bill which contained only provisions dealing with charges on the Consolidated Fund. It was for the appointment of two judges, and incidentally their salaries were a charge on the Consolidated Fund. That is a good illustration of the way in which these words will have to be construed.”  

Following serious debate, the Parliament Act, 1911 was passed in August 1911 and the incipient Constitutional crisis was averted. The Parliament Act 1911 was amended in 1949. Its use by the Labour Government to pass the Hunting Act 2004 over the protest of the Lords led to a huge brouhaha and a landmark case in the House of Lords, though not on the aspect of money bills. In the House of Commons with its strong tradition of an impartial Speaker (recently demonstrated during the Brexit debates by Speaker Bercow), there has never been a partisan food fight on the certification of a Money Bill and no accusation of “tacking”.

Money Bills were adopted into the Constitution of Ireland, 1937 with a little modification- as per Article 22 thereof, the certificate of the Speaker could be disputed by the upper house and the President could set up a committee headed by a High Court judge to determine the issue.

In our Constituent Assembly, the Framers used the Constitution of Eire as a basis for the money bill clause but removed the idea of a joint committee instead giving finality to the decision of the Speaker. An amendment to remove the word “only” was negatived on 8^th June 1949 when the draft Article was approved.

What lessons can our Courts draw from the resolution of the crisis of 1911 when they examine the provisions relating to Money Bills under our Constitution in Article 110? On the issue of judicial review of the certification by the Speaker, the Courts must be conscious of the difference between the English position and ours while on the interpretation of the word “only” in Article 110(1), they must be conscious of the similarity.

Under our Constitution, judicial review of the certification of a Money Bill by the Courts ought to be permissible because:

1. In Indian law, judicial review has to be specifically excluded and mere finality is not enough. Judicial review is specifically excluded in the Parliament Act, 1911, unlike in Article 110.  
2. In India, the privileges of each house are subject to the provisions of Constitution as interpreted by the Courts, unlike in England.
3. There is no absolute or unfettered power under the Indian Constitution.
4. Certification by the Speaker is not “procedural” but is a substantive determination and a mistake is not irregularity of procedure but an illegality, and there is no bar on judicial review of an illegality.

Like in Britain, under our Constitution, the definition of a Money Bill is to be strictly construed because:

1. The word “only” indicates that bills have to deal only with the provided heads and extraneous matter cannot be tacked on.
2. Money Bills are the exception to the rule of bicameral legislative action and ought not to be allowed to subsume the main rule. The Rajya Sabha is emphatically not a hereditary chamber like the Lords in 1911 and the Rajya Sabha has a vital role to play. 
3. Traditionally our Constitutional courts have not looked upon kindly at disguising the form of legislation to hide the substance- what is sometimes referred to as a “fraud on the Constitution”. 

The Aadhaar Act, inter-alia deals with eligibility for subsidies which are expenditures from the Consolidated Fund but neither creates subsidies nor directs such expenditures. Even otherwise no one would say this is a law only for this purpose. The majority judgment in the Aadhaar case, upheld the passing of the law as a money bill on the basis that the dominant purpose was subsidies, a characterisation disputed persuasively in fact and in law by Justice Chandrachud’s dissent. In Rojer Mathews case, when the Court was dealing with the amendment to the composition and rules governing Tribunal made vide the Finance Act, 2017, doubted the Aadhar judgment as regards money bills referred the issue to a larger bench both on the interpretation of the word “only” and on judicial review.

Based on his speech on April 11, 1911, PM Asquith would not think the Aadhaar Act is a Money Bill and would think that the merging of tribunals was tacked on to the Finance Act 2017 in a way that the Lords could describe as unparliamentary and what John Hatsell writing in 1785 would call “dangerous” and “unconstitutional”. As and when the Supreme Court considers the Aadhaar Review Petitions and the reference in Rojer Mathews, they should hold the same.    

The Supreme Court’s Madhya Pradesh Government Formation Judgment: Round-Up

Below is a round-up of the six posts discussing the judgment of the Supreme Court in the Madhya Pradesh government formation case.

1. A Question of Jurisdiction (by Rishav Ambastha)
2. On the Powers of the Governor (by Anmol Jain)
3. On the Powers of the Governor: A Response – I (by Amlan Mishra)
4. On the Powers of the Governor: A Response – II (by Nivedhitha K)
5. On the Powers of the Governor: A Rejoinder (by Anmol Jain)
6. Some Concluding Remarks

The Supreme Court’s Madhya Pradesh Government Formation Judgment – VI: Some Concluding Remarks

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

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Late last month, this blog hosted an extensive debate on the Supreme Court’s judgment in the Madhya Pradesh government formation case (see Rishav Ambastha’s initial post on jurisdiction; Anmol Jain’s post questioning the correctness of the judgment; Amlan Mishra and Nivedhitha K.’s posts responding to Amlan; and Amlan’s rejoinder). The judgment is a particularly important one, because it is the first reasoned verdict by the Supreme Court, after many years of interim orders that were passed every time a government formation crisis arose.

In this post, I want to offer a few brief concluding remarks, drawing from the debate. Recall once again that the key question before the Supreme Court was whether the Governor of a state had the power to direct a convening of the legislative assembly, for the purposes of holding a floor test. The Supreme Court held that the Governor did indeed have that power. The key constitutional question was whether this power fell under the “discretion” of the Governor – i.e., whether it was an exception to the general principle that the Governor could only act upon the “aid and advice” of the Council of Ministers. The Supreme Court held that it did.

As the debate between Anmol, Amlan, and Niveditha on this blog demonstrates, a close reading of the Constituent Assembly Debates does not yield a definitive answer to this question. This is why the answer lies in a structural and purposive reading of the Constitution: which interpretation better fits with the Constitution’s overall structure and guiding principles? According to the Court, the argument goes something like this: in the ordinary course of things, when you have an existing government and a functioning house, the accepted way of challenging that government’s legitimacy is through a no-confidence motion, which then culminates in a floor test ordered by the Speaker. However, there may arise situations where a government that has lost the confidence of the legislature impedes or prevents the holding of a floor test, and continues in office de facto. This would be a violation of the principle of collective responsibility, and undermine executive/legislature relationship within a parliamentary structure. It is therefore justified for the Governor to step in, and direct a floor test, for the limited purpose of determining whether or not the government continues to enjoy the confidence of the house. The power of the Governor is thus derived from a structural reading of the Constitution, and the principles of parliamentary democracy.

The problem with the argument, however, is this: the protection of one principle of parliamentary democracy (executive accountability to the legislature) comes at the cost of another: the sovereignty of the legislature to determine the proceedings within the house, and the supremacy of the Speaker. This, indeed, is the key distinction between a government formation dispute after elections but before the formation of the government (which is what happened, for example in the first Karnataka case in 2018), and a government formation dispute when the composition of a functioning house is altered because of the resignation of sitting MLAs. This distinction was drawn by Dr. Singhvi during oral arguments, but was rejected by the Court. The distinction, however, is crucial, for the reasons pointed out above.

Now, the argument made by the Court – and in Amlan’s piece – is that vesting the discretion with the Governor is required because the standard method of bringing down a government that has lost the confidence of the house – i.e., a no-confidence motion – can be circumvented either by an adjournment of legislative proceedings, or by the Speaker simply sitting on the no-confidence motion (indeed, readers will recall that during the previous NDA government at the centre, the Speaker – quite literally – did not allow a no-confidence motion tabled by the Opposition to be voted upon). However – and this came out in Anmol’s rejoinder piece – both these attempts have a straightforward solution: judicial review. The UK Supreme Court has recently taught us exactly how and when a Court may declare a prorogation unlawful: when it is clear that the effect of that prorogation is to defeat the constitutional principle of executive accountability to the legislature. And our own Supreme Court, last November, while considering the issue of money bill, provided strong and persuasive reasons when the discretion of the Speaker can be challenged in Court. If mala fide certification of bills as money bills attracts judicial review, there is no reason why mala fide refusal to hold a no-confidence vote cannot.

The question, therefore, boils down to this: structurally, which is the better option to ensure executive accountability: the Governor or the Court? It is, to my mind, obvious that it is the latter, for the very straightforward reason that the Governor is a central government appointee, and judges are not. Given a choice, further accretion to the powers of the Governor infringes the federal structure in a way expanded judicial power does not.

I think this issue is particularly important, because in deciding these cases, the Court must necessarily navigate through three sets of facts that it cannot turn a blind eye to (and indeed, all three are flagged in the judgment). First: Governors should be neutral, but they are not. They act effectively act as agents of the central government. Second: Speakers should be neutral, but they are not. They effectively act as agents of their parties. And third: horse-trading happens. Legislators are paid staggering amounts of money to switch sides and bring down the government, and the technique of resignations is used to circumvent the rigours of the anti-defection law. A judgment that proceeds on the assumption that any one of these three things does not exist essentially operates in a parallel reality, where constitutional principles have come entirely unmoored from the factual situation that they are meant to apply to.

Now given these facts, how should the Court decide? In a previous post, I argued that the judicial doctrine should evolve in a manner such that the Court does not determine substantive outcomes (such as installing or replacing a government); but also, that the Court needs to ensure that the impact of the three issues highlighted above, upon the democratic process, is minimised. So, for example, in cases involving government formation immediately after a closely-run election: the Court cannot stop horse-trading from happening, but it can – by ordering an immediate floor test – minimise the time open to parties to engage in horse-trading, and curtail gubernatorial abuse (as happened in the Karnataka case). Once again, if in the case of a sitting government, a host of MLAs resign in a coordinated fashion to alter the composition of the house, this is not something the Court can stop; what it can do, however, is prevent the emergence of collusive situations involving the governor and the political party that appointed the governor, by eliminating him from the power equations at play. In addition, the Court’s approach should be informed by the fact that coordinated resignations suggest that horse-trading is going on. Thus, just as there is an overriding need in post-election government formation cases to prevent horse-trading through an immediate floor test, when the horse-trading has already happened (through resignations), an immediate floor test that does not allow the Speaker at least a reasonable amount of time to decide upon the resignations (the extent of the Speaker’s discretion here is a debate for another day) will have the effect of entrenching horse trading.

Some of these factors, I suggest, were bracketed by the Court, as it did not believe it could go into such issues. That, however, is a mistake: the Court is already making (correct) assumptions about the lack of neutrality of the Speaker, when it gives to the Governor the power to direct a floor test. What is sauce for the goose is sauce for the gander: in an ideal world, Speakers and Governors are neutral, and horse-trading does not happen. But we cannot recognise one departure from the ideal – the politicisation of the office of the Speaker – without recognising the other – i.e., bringing down governments through horse-trading. A holistic recognition of the structural problems involved, I would submit, would lead one to Anmol’s answer as the preferable one: the no-confidence motion remains the sole means of testing the continued legitimacy of an elected and functioning government, with the possibility of judicial review in case of an impediment is thrown up.

A final, somewhat unrelated point: as I have noted above, the Court acknowledges, towards the end of its judgment, that horse-trading is a feature of the polity. But here’s the thing: horse-trading is enabled and facilitated by vast amounts of money sloshing through politics, and for the last two years, the sloshing of unimaginable sums has been enabled by the mechanism of electoral bonds, which allow opaque and limitless corporate donations to political parties.  Constitutional challenges to the electoral bond schemes have been pending in the Supreme Court for more than two years, and successive Chief Justices have dodged, ducked, and evaded hearing the case. For this reason, one can only read judicial lamentations about horse-trading with a wry smile: the institution that actually has the power to do something about it (even if is a little bit) is the institution that is refusing to act. Of course, the decision to hear the case lies with the Chief Justice; therefore, it is not that the two judges who authored this judgment are responsible for the delay. But that, unfortunately, is becoming an enduring issue with the poly-vocal character of the Supreme Court: the same institution, speaking through different judges, criticises horse-trading, while refraining from hearing a case that would have a non-trivial impact upon that same horse-trading. If the Supreme Court is to retain its character as a constitutional Court, this problem desperately requires a solution.