Speaker under cloud should not adjudicate matters under 10th Schedule: SC

New Delhi, July 13 (IANS) The Supreme Court on Wednesday said that a Speaker cannot adjudicate on the disqualification of lawmakers under the anti-defection law if a resolution seeking his own removal is pending before the assembly.

“We hereby hold, that it would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petitions under the Tenth Schedule, while a notice of resolution for his own removal from the office of Speaker, is pending”, said Justices Jagdish Singh Khehar, Pinaki Chandra Ghosh and N.V. Ramana in their main judgment restoring Nabam Tuki as the Arunachal Pradesh Chief Minister.

Even as the top court on Wednesday said that the Governor should not try to be an “ombudsman” or “conscience keeper” of the State legislature, it has asked the Speaker to exercise restraint in exercise his powers under the anti-defection law when a motion seeking his removal is pending.

The court said this while addressing a submission by the State.

The court noted that “After all, this was the real basis of the Governor having passed the impugned order and message dated 9.12.2015.”

“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,” said the main judgment.

“The action of the Speaker in continuing, with one or more disqualification petitions under the Tenth Schedule (relating to disqualification of members on grounds of defection), whilst a notice of resolution for his own removal, from the office of Speaker is pending, would ‘appear’ to be unfair,” the court said.

“If a Speaker truly and rightfully enjoys support of the majority of the MLAs, there would be no difficulty whatsoever, to demonstrate the confidence which the members of the State Legislature, repose in him,” the court said as it recounted the sequence of events leading to political imbroglio in Arunachal Pradesh in December last year.

“Why would a Speaker who is confident of his majority, fear a floor test? After his position as Speaker is affirmed, he would assuredly and with conviction, deal with the disqualification petitions, under the Tenth Schedule,” the judgment said.

In a poser the court asked, “And, why should a Speaker who is not confident of facing a motion, for his removal, have the right to adjudicate upon disqualification petitions, under the Tenth Schedule?.”

Having said this, the main judgment said that it was an ethical way of looking at the issue but the “constitutional issue, however, must have a constitutional answer”.

Justice Dipak Misra in a concurring judgment said that the speaker, while exercising the authority/jurisdiction under the Tenth Schedule exercises the power of “constitutional adjudication”.

The Speaker, when functioning as a tribunal has the jurisdiction/authority to pass adverse orders, said Justice Misra pointing out that “It is therefore, required that his conduct should not only be impartial but such impartiality should be perceptible. It should be beyond any reproach. It must reflect the trust reposed in him under the Constitution.”

Justice Misra said that “it is necessary that the Speaker as a tribunal has to have complete detachment and perceivable impartiality.”

Having said this, Justice Misra says that, “It would be an anathema to the concept of constitutional adjudication, if the Speaker is allowed to initiate proceeding under the Tenth Schedule of the Constitution after intention to remove him from his office is moved.”

–IANS

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