Karan Laddha

Source: Art UK

Abstract: This piece examines whether Speakers can adjudicate upon disqualification petitions under the Tenth Schedule while a notice for their removal is pending. It argues that Articles 94(c) and 96 bars such simultaneous adjudication only while a resolution is being considered. Further, it argues for a harmonious construction of Articles 94(c) and 96 with the Tenth Schedule.

Introduction

In a span of three months, defections have happened in three political parties, from three different states. Most of the recent scholarly attention has been centered on the question whether these defections come under the protection of paragraph 4 of the Tenth Schedule by way of being a ‘merger’. However, among other questions which vex contemporary discourse on the Tenth Schedule, is the question of the Speaker’s competence to adjudicate on disqualification petitions when a notice for their removal is pending.

In Nabam Rebia v Deputy Speaker (‘Nabam Rebia’), a Constitution Bench of the Supreme Court (‘Court’), inter alia, on a purposive reading of Article 179(c), ruled that it is impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule after a notice of intention to move a resolution (‘notice’) for their removal is given. The Court was also driven by important policy considerations about the institutional integrity of the Speaker’s office—that they run the risk of being a judge in their own cause by deciding on the disqualification of those very members who pass a resolution for their removal. In 2023, the decision in Nabam Rebia was referred for reconsideration in front of a 7-judge bench. This review remains pending and has not been taken up for hearing—while another round of defection has happened in the same political party. In this piece, I argue that the Speaker is competent to adjudicate disqualification petitions while a notice is pending as Articles 94(c) and 96 of the Indian Constitution prohibit the Speaker to do so only when a resolution for their removal (‘resolution’) is under consideration. First, I set out the literal interpretation of Articles 94(c) and 96 and show that their text draws a clear distinction between the giving of a notice and the consideration of a resolution, and that the bar on the Speaker’s authority operates only in the latter stage. In the next section, I turn to the Court’s own purposive reasoning in Nabam Rebia and show that it rests on a selective reading of the Constituent Assembly debates. Lastly, I argue that the decision must be reviewed in a way that harmoniously constructs Articles 94(c) and 96 with the Tenth Schedule, and does not render the latter a dead letter.

The Literal Interpretation of Articles 94(c) and 96

The cardinal rule of interpretation is to read a provision literally according to its original meaning unless such a reading leads to ambiguity, only upon which other rules of interpretation are invoked.[i] The Court, in Nabam Rebia, eschewed a plain reading of the relevant Articles in favour of a purposive interpretation. In this section, I put forward the literal interpretation of Articles 94(c) and 96, as their text does not lead to any such ambiguity. Article 94(c) lays down the procedure for removal of the Speaker, wherein the Speaker is removed from their office by a resolution being passed, minimum fourteen days after a notice for such removal has been given. In Nabam Rebia, the Court interpreted the phrase ‘all the then members of the Assembly’ in Article 179(c) (which is analogous to Article 94(c)) to mean all the members present in the House during a pending notice, to bar the Speaker from deciding on disqualification petitions.

Nabam Rebia makes a flawed conflation between a notice and a resolution. It is evident from the text of Article 96 that a notice and a resolution are two distinct procedural devices.[ii] Under Article 96, the Speaker shall not preside at any sitting while any resolution is under consideration. The dictionary meaning of ‘while’ means during the time of an act. Therefore, the deliberate use of the word ‘while’ signifies a temporal aspect that the Speaker cannot preside only ‘during the time that’ a resolution is under consideration, and not merely when a notice is given.

Similarly, Article 94(c) draws a clear distinction between two events: the giving of notice of intention to remove the Speaker as mentioned in the first proviso to Article 94(c), and the passing of an actual resolution. The proviso to Article 94(c) uses the phrase ‘all the then members’ to explicitly refer to the members at the time of the passing of the resolution, and not to those present at the event of issuing a notice. Therefore, the period that ‘then’ is referring to must be the passing of the resolution and not the giving of the notice. This distinction also shows that the framers intended to draw out a clear difference between a notice and a resolution.

Therefore, the prohibition in Articles 94(c) and 96 does not apply to a period when notice is given. A resolution is raised to elicit the opinion of the House on a matter of general public interest, whereas a notice for removal is a mere motion for leave to move such resolution (as per rules 171 and 172 of the Rules of Procedure and Conduct of Business in Lok Sabha).[iii] Hence, the consideration of a notice does not amount to consideration of the resolution. A resolution is ‘under’ consideration only after it is ‘taken up’ for consideration, which happens when leave is granted to move the notice. Thus, the prohibition applies after the leave is granted to the notice and when the resolution is under discussion.

This plain reading points to a flawed conflation that the Court makes between a notice and a resolution. The Court erased the distinction between the two procedural devices, by deeming the giving of notice itself as sufficient to trigger the bar on the Speaker’s authority. However, Articles 94(c) and 96 disable the Speaker only once a resolution has actually been taken up, not from the moment a notice is given. In the subsequent section, I argue that the purposive interpretation done by the Court in Nabam Rebia was flawed and selective, and it leaves the real issue unaddressed.

The Infirmities in Nabam Rebia

During the drafting of Article 94(c), a proposed amendment to replace ‘all the then members’ with ‘members of the Assembly present and voting’ was rejected without debate. The court relied on such rejection of the latter phrase to come to the conclusion that the ‘then members’ did not refer to the members who were present and voting on the resolution, but it referred to all members present when the notice was given. Therefore, according to the Court’s reasoning, the phrase ‘members of the Assembly present and voting’ would have meant members at the time of the resolution being voted upon, while the phrase ‘all the then members’ meant members at the time of giving of notice. However, as argued above, these are two distinct events.

The issue at hand turns on the word ‘then’—whether ‘then’ includes the members present before or after disqualification. The question is whether members can be disqualified in the period intervening in the giving of notice and voting on a resolution. The makers were aware of the potential disqualification of members under Article 191(1). There exists a possibility that a member, after having moved a motion for the Speaker’s removal, is disqualified for having been found to hold an office of profit, or becoming an undischarged insolvent, or attract the like provisions under Article 191(1). Likewise, the phrase in Article 94(c) can account for disqualifications made after a notice is given.

However, the Court’s appreciation of the proposed amendment was inadequate, or rather selective. The same was proposed under the assumption that the provision would become operative only when a resolution is being voted upon, and not merely when a notice is given. During the drafting of Article 67, Dr. Ambedkar clarified that ‘all the then members’ means all members whose seats are not vacant (para 70(b)). Therefore, the phrase ‘all the then members’ meant that absent members who have not vacated their seat (i.e. the members who have not been disqualified) shall be considered as part of the voting pool, so that the votes of such absent members count on a notice moved by them. Thus, the Court misidentified the heart of the debate by focusing on a false conflict between the two phrases mentioned above. For these reasons, the Court’s reasoning is inconsistent even with a purposive reading of Articles 94(c) and 96.

It is appreciated that the Court was also guided by considerations of the potentially political nature of the Speaker’s office and the misuse of their powers to protect their own office. The same concern had animated the Parliament when the insertion of the Tenth Schedule in the Constitution was being considered. It was argued that the speaker can potentially act in a partisan manner. However, the Parliament, in its legislative wisdom, reached the conscious decision that the speaker should still adjudicate upon disqualification petitions as per paragraph 6 of the Tenth Schedule.  Moreover, an admission or rejection of notice is based on an objective assessment of the notice as per Rule 200A of the Rules of Procedure and Conduct of Business in Lok Sabha (‘Rules’). After admission, the House decides the fate of the resolution on its merits, and not the Speaker (as per Rule 201(3) of the Rules and Article 100(1)). Therefore, the claim that the Speaker acts as a judge in their own cause, while merely considering admission of a notice, requires further constitutional backing.

The Need for a Harmonious Construction of the Tenth Schedule with Articles 94(c) and 96

The provisions of one section of the Constitution (the removal of Speakers) cannot be used to defeat those of another (the Tenth Schedule), unless it is impossible to reconcile them. A harmonious construction of the two requires giving effect to both, without rendering one as a dead letter.[iv] The Tenth Schedule would be reduced to a dead letter if the Speaker is prevented from exercising his duties thereunder, owing to a motion given under Article 94(c). Therefore, the review must harmonize the Tenth Schedule with Articles 94(c) and 96.

The Court’s reasoning does not do justice to this requirement. The absurd consequences of the decision give considerable leeway to the members to stall the functioning of the House to prevent their own disqualification. A notice given even by a single member of the House can restrict the Speaker from performing their duties, irrespective of whether the House supports the removal of the Speaker at this stage. Whether the House shares that member’s view becomes clear only at a later stage, when the notice is moved and the subsequent resolution is put on vote. In Kihoto Hollohan vs Zachillhu, the Supreme Court held that a decision on disqualification petitions is judicially reviewable (para 111). However, a removal resolution is not judicially reviewable, as the validity of proceedings of the House cannot be challenged in a court of law. Permitting a bare notice to suspend the Speaker’s duties under the Tenth Schedule rewards actual defectors and punishes those who have a real claim against wrongful disqualification.

After considerable deliberation as to who should preside over the office of the Chairman of the Rajya Sabha and that over the Speaker’s office, the drafters made an explicit provision as to who should preside over the offices when their removal is pending consideration. Article 96(1) deems the Speaker absent while a resolution is under consideration. For the effect of such deemed absence, Article 96(1) refers to Article 95(2). Article 95(2) confers on a member the power to ‘act as the Speaker’ when the Speaker is absent from any sitting of the assembly. This is in contradistinction to Article 95(1), wherein such person shall perform the duties of the office of Speaker as the office is vacant. Since Article 96(1) explicitly refers to Article 95(2), it only eschews the Speaker’s narrower power to ‘act as the speaker’. This does not include deciding disqualification proceedings, which is covered by the broader power conferred under Article 95(1) to ‘perform the duties of the office’ when it’s vacant. To allow a notice, which could be issued by even a single member of the House, to prevent the Speaker from performing the duties of the office, would paralyze the functioning of the whole House.

Furthermore, these duties exist in independent constitutional spaces. The Speaker acts as a tribunal under Article 191(2) and the power under para 6(1) of the Tenth Schedule is a judicial power. Article 96 does not and can not indicate an intention to restrict the speaker from exercising his powers as a tribunal while adjudicating disqualification petitions, as the Tenth Schedule did not exist when the framers were drafting Article 96. Moreover, it is important to note that the wrongful removal of a speaker is more immune from judicial review but wrongful disqualification because of defection is subject to judicial review.  Allowing a notice to keep the Speaker from deciding on the disqualification petitions would render the Tenth Schedule a dead letter, which exists in a constitutional space independent from that of Articles 94(c) and 96.

Conclusion

The question of whether the Speaker can adjudicate disqualification petitions while a notice for their removal plays a central role in how the Tenth Schedule functions in practice. The law, as it stands today, allows even a single member’s notice to paralyze the Speaker’s power to decide disqualification petitions and forces the constitutional office of the Speaker into hiatus.

The reasoning in Nabam Rebia, as argued above, suffers from significant constitutional infirmities. The Court’s reading of Article 94(c) is not in consonance with the plain text of the same. Moreover, the selective reading of the Constitutional Assembly debates around the proposed amendment to the proviso to Article 94(c) could lead to consequences that undermine the very purpose of the Tenth Schedule, giving a free-reign to the members of the House to defect.

Furthermore, a plain reading of Article 96 makes clear that the Speaker is prohibited to preside over the House only when a resolution is actively under consideration, and not at the stage of notice, for the two are distinct procedural devices. A purposive reading of Article 96, read alongside Articles 95(1) and 95(2), further confirms that the framers did not intend to strip the Speaker of their broader function of performing the duties of the House.

It is hoped that when the reference is taken up, the Court will reconsider the reasoning in Nabam Rebia in a way which does justice to the role of the office of the Speaker under the Tenth Schedule, and harmonizes the same with Articles 94(c) and 96.  

[i] G P Singh and Alok Aradhe, Principles of Statutory Interpretation (15th edn, LexisNexis 2023) 73 (‘Principles of Statutory Interpretation’).

[ii] Lok Sabha Secretariat, Motions and Resolutions in Parliament (Lok Sabha Secretariat 2014).

[iii] ibid 11.

[iv] Principles of Statutory Interpretation (n 1) 112.

Karan is a second-year law student at National Law University, Delhi, with a keen interest in constitutional law and theory. The author can be reached at karan.laddha25@nludelhi.ac.in