Speaking out of Turn

The Karnataka assembly election that took place this May was replete with high drama and plot twists. Following a hung assembly in which the Bharatiya Janata Party was the single largest party, but the Congress and Janata Dal (Secular) made it past the halfway mark in a post-election alliance, Karnataka governor Vajubhai Vala was faced with a tough choice regarding whom to invite to form a government. Although the BJP leader BS Yeddyurappa was first sworn in as chief minister, the Supreme Court mandated a floor test for the party to prove its majority in the house through a vote of confidence within 48 hours. With one day left to go for the test, Vala stoked controversy by appointing a Rashtriya Swayamsevak Sangh member and former BJP minister KG Bopaiah to the post of pro-tem speaker of the Karnataka Assembly. Under normal circumstances, the pro-tem speaker—usually the MLA who has had the longest term, which Bopaiah did not—does nothing more than swear in newly-elected members of the house and help them elect a speaker. However, the floor test has far greater consequences, and is usually conducted under the supervision of the speaker. In this instance, however, the Supreme Court had directed the pro-tem speaker to take on this function, and thus, his role became crucial. The controversy was prompted by the fact that when Bopaiah was the speaker in 2010, he had used his position to try and help Yeddyurappa sail through a no-confidence motion in very controversial circumstances. His partisanship had then drawn ire from the Supreme Court, which stated that the speaker had violated “the concept of a fair hearing.”

Many felt that by inviting the BJP to form a government in the first instance, even though they did not have the numbers, the governor had declared open season on political defections and horse trading. In such an event, the role of the speaker could shift the political fortunes of a party. As it turned out, having failed to cobble up the numbers, Yeddyurappa resigned before the floor test took place.

In accordance with the Westminster form for parliamentary democracy, the presiding officer, called the speaker in India—holds an important position in ensuring the functioning of the parliament and state legislature. A speaker assumes office after a house is constituted and tends to be a member of the ruling party—although there have been notable exceptions. There are no specific recommendations in the constitution regarding how the speaker is to be elected, but usually informal discussion between leaders of the parties represented in the house takes place before votes are cast.

Among the broader administrative responsibilities that fall upon the office are maintaining order in the house, choosing the questions that will be introduced for debate and deciding who will speak. The speaker does not herself intervene in debates—and in fact cannot, by convention, do so—which means that her role is one of an impartial arbiter of the rules of parliament. The reality, though, has belied this constitutional expectation. Speakers have, over the years, become more partisan in their functioning. This stems from the more discretionary powers the presiding officer wields, such as the ability to disqualify members of the legislature under the anti-defection provisions of the Constitution of India.

The Tenth Schedule of the Constitution, or the anti-defection law, as it is more popularly known, was introduced in 1985, to prevent legislators from crossing over to other parties under the lure of securing an office. According to the schedule, any member who leaves a political party or takes a public position against her party can be understood to have “voluntarily given up their membership.” In other words, the speaker has the power to disqualify an individual political dissident from the legislature. If two-thirds of a party wish to merge with another party, however, neither the breakaway faction nor the remaining members of the party may be disqualified. The legislator who is disqualified has to stand for fresh elections if she wants to re-enter the house.

In 1992, the constitutional validity of the Tenth Schedule was challenged before the Supreme Court in Kihoto Hollohon v Zachillhu. The argument raised was that the anti-defection law curtailed the free speech of members of parliament and state legislatures. By forcing legislators to strictly toe the party line, it was argued that the law takes away any incentive for debate and discussion on critical policy issues. However, the schedule was upheld by the Supreme Court almost in its entirety in a narrow 3-2 verdict, except the clause which prohibited judicial review of the speaker’s order of disqualification. The court entrenched the role of the speaker as the final authority on matters of defection and argued that “the practical need to place the proprieties of political and personal conduct” was more important than “certain theoretical assumptions.” The minority judgment, authored by Justice JS Verma, however, held a different view.

Justice Verma argued that since the speaker’s tenure was dependent on the ruling majority in the house, she could not be considered an unbiased independent adjudicator. He said that the choice of the speaker as “the sole arbiter in the matter violates an essential attribute of the basic feature” of the Constitution. The key difference in the split was the faith placed in the role of the presiding officer. On one side stood the lofty view that the speaker could be trusted when it comes to the exercising such an important constitutional power, and on the other was a more realistic view of how she might be influenced by reigning political alignments.

In recent history, the nightmare scenario envisioned by Justice Verma seems to have come true. Although elected in both the upper and lower houses, it is in the state legislative assemblies where examples of speakers using their position to aid the ruling party abound. In 2008 in Karnataka, in what is now infamously known as Operation Kamala, the BJP tried to circumvent the anti-defection law by convincing members from opposing parties to resign and then contest bypolls on a BJP ticket. In the Arunachal Pradesh legislative assembly, in December 2015, 14 rebel ministers from the Congress were disqualified by the speaker, precipitating a political crisis that led to president’s rule in the state. This required the apex court to intervene and set aside the speaker’s orders. There were also instances in which the speaker refused to take any action at all, despite seemingly brazen and opportunistic defections. In Andhra Pradesh and in Telangana for instance, the Telugu Desam Party and Telangana Rashtra Samithi have both strengthened their positions in the assembly by engineering crossovers from opposition parties.

The anti-defection law is not the only area where the bias of speakers has become evident.

The budget session of 2018—in which among other things, the demands-for-grants from various ministries were to be scrutinised—was one of the least productive in recent memory. In March, Lok Sabha speaker Sumitra Mahajan used her powers to “guillotine” the debate about the Finance Bill and Appropriation Bill in light of “disruptions” from opposition parties. Guillotine is the process by which all outstanding demands by various ministries are put to vote in quick succession by the speaker, after the allotted time of debate is over. Amid cries from the opposition, Mahajan passed the whole budget within 30 minutes through a voice vote. She was within her powers to use this procedure, but the opposition has argued that this was another example of how the government is attempting to stifle debate. There were three weeks remaining for the monsoon session to end, so the tearing hurry was unwarranted.

A key role of the speaker is to determine which bills will be discussed and voted on in the house. There are usually institutional checks in the passage of a bill, where the upper house—whose members are not popularly elected—must also vote on it before it is passed. The only bills which the Rajya Sabha cannot vote on, however, are “money bills.” The constitution states that money bills are only those that have provisions relating to taxes and expenditures from the consolidated fund of India. However, this can be sidestepped if the speaker declares that certain bills are money bills. The Aadhaar (Targeted Delivery of Financial and Other subsidies, Benefits And Services) Act, 2016, for instance, has provisions related to data protection, privacy and powers of the authority, among others, not all of which relate directly to subsidies or payment of benefits. Since the government does not enjoy a majority in the Rajya Sabha, any amendments made to the bill by the opposition would have forced the government to either meet the opposition halfway or convene a joint sitting of parliament to resolve the differences between the versions of the bills passed by the two houses. However, having been declared as a money bill, the Rajya Sabha was denied the power to propose any changes to the Aadhaar Act.

A legal precedent has allowed for this loophole to persist. The Supreme Court in Saeed Siddiqui v State of Uttar Pradesh while upholding the amendment of the UP Lokayukta Act, which was passed as a money bill, argued that the speaker’s decision to certify a bill as a money bill was beyond judicial review. This judgment has been called into question by the petitioners, who have challenged the constitutional validity of the Aadhaar Act, claiming it cannot be treated as a money bill. (Disclaimer: I am associated with the Vidhi Centre for Legal Policy, which assisted in drafting the Aadhaar Act.)

If the Supreme Court holds that the speaker’s power to certify money bills can be judicially reviewed, we might see speakers use this power in a more circumspect manner in the future. Meanwhile, the question of whether a speaker can be directed by the Supreme Court to take a decision on defections has been referred to a constitution bench. With no date in sight, it is quite likely that the question will not be decided before the terms of the Telangana and Andhra Pradesh assemblies end in 2019.

It is perhaps time to fundamentally rethink the Tenth Schedule. As has been proposed for a while now—most recently through a private members’ bill—the application of the anti-defection law needs to be limited only to instances in which a legislator votes against the party whip in no-confidence motions and in the passage of the budget. The various possibilities for subversion that the speaker’s post allows have profound consequences for the health of coalition politics in India’s multiparty democracy.