Saturday, August 9, 2008

10th Schedule: Speaker can also suffer disqualification

Status of the Chair

V.VENKATESAN

The Tenth Schedule of the Constitution envisages that the Presiding Officer also can suffer disqualification on the grounds of defection.

PTI

Lok Sabha Speaker Somnath Chatterjee arriving at the Parliament House. A file picture

MANY analysts have pointed out that the office of Speaker is above party loyalties and that the Speaker is not bound by his party’s advice to resign from the post. The basis for this assertion stems from Paragraph 5 of the Tenth Schedule of the Constitution, which deals with exemption from disqualification on the grounds of defection.

Before examining this paragraph, one needs to understand the Speaker’s position in the context of his party becoming an opposition party because of a sudden turn of events. By convention, the Speaker belongs to the ruling party or a ruling combination of parties. Therefore, to have a member of an opposition party as the Speaker is inconsistent with such convention, which has been judicially recognised as part of the Constitution.

No doubt, the present Speaker, Somnath Chatterjee, was chosen by the entire House, cutting across party lines, but his office is contingent on his membership of the House, which is traceable to his election to the Lok Sabha as a member of the Communist Party of India (Marxist). If this membership is under challenge, then as a corollary, the Speaker’s post, too, becomes vulnerable.

Paragraph 5 of the Tenth Schedule says that notwithstanding anything contained in this Schedule, a person who has been elected to the office of Speaker or Deputy Speaker of the House of the People shall not be disqualified under this Schedule:

a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or

b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.

Although the purpose of this paragraph is to ensure the impartiality of the Speaker in the conduct of the proceedings of the House, none of the Speakers since the enactment of this Schedule in 1985 has voluntarily given up the membership of his political party following his assumption of the Speaker’s office. No one except the Bharatiya Janata Party seriously believed that Somnath Chatterjee’s continuance as a member of the CPI(M) compromised his impartiality in the conduct of the proceedings of the House.

Implicit in the CPI(M)’s inclusion of Somnath Chatterjee’s name in the list it submitted to the President, of its MPs withdrawing support to the government, is the clear message that the Speaker, by virtue of his having been elected as a member of the CPI(M), and by not resigning his membership of the party after assuming office as Speaker, was also withdrawing support to the government. The party, therefore, expected that Somnath Chatterjee would resign as Speaker in keeping with the convention and spirit of the Constitution, although it left the decision to him as a matter of courtesy.

Wider connotation

The Speaker’s refusal to resign from his office clearly conveyed that he no longer considered himself a member of the CPI(M). Although he did not formally resign from the party, he had “voluntarily given up the membership of the party” as mentioned in Paragraph 2 (1) (a) of the Tenth Schedule, dealing with disqualification on the grounds of defection.

According to the Tenth Schedule, a Member of Parliament or a State Assembly can be disqualified under Paragraph 2 (1) (a) if he has voluntarily given up his membership of his political party; or under Paragraph 2 (1) (b) if he votes or abstains from voting in the House, contrary to any direction (whip) issued by his party, without obtaining the prior permission of such party. The party concerned may also condone such violation of the party whip by the member within 15 days from the date of such voting or abstention, in order to avoid the member’s disqualification.

The CPI(M) did not issue a whip to Somnath Chatterjee prior to the confidence vote in the Lok Sabha as the Speaker is bound to cast his vote only if there is a tie. Hence, the whip applicable to other members cannot apply to him. But the non-issue of the whip to him does not mean Paragraph 2 (1) (a) of the Tenth Schedule cannot be invoked against him.

PTI

Somnath Chatterjee chairs an all-party meeting in New Delhi on July 21

The phrase “voluntarily given up his membership”, according to a Supreme Court judgment, is not synonymous with “resignation” and has a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up the membership of the political party to which he belongs, the Supreme Court has held (Ravi Naik v. Union of India, AIR 1994 SC 1558). In another case, the Supreme Court observed that “the act of voluntarily giving up the membership of the political party may be either expressed or implied” (1996 2 SCC 353).

During the 13th Lok Sabha, Rupchand Pal, the Chief Whip of the CPI(M) in the Lok Sabha, submitted a petition under the Tenth Schedule against Prof. R.R. Pramanik for having voluntarily given up the membership of his original political party, that is, the CPI(M). The main contention of the petitioner was that the conduct, actions, contentions and statements of Pramanik indicated that he had voluntarily given up the membership of his original political party.

Relying on the observations of the Committee of Privileges (Eighth Lok Sabha) in the Lalduhoma case and the Supreme Court’s judgment in the Ravi Naik case, Rupchand Pal contended that if it could be established from a member’s conduct, overt or covert, that he no longer considered himself to be a member of the party or that he had abandoned the party, the same could be termed as his voluntarily giving up the membership of his political party, entailing disqualification under the Tenth Schedule.

The Speaker referred Pal’s petition to the Committee of Privileges (Thirteenth Lok Sabha) for preliminary inquiry and report. While the petition was under the consideration of the Committee the Lok Sabha was dissolved on February 6, 2004.

Are the cases of Pramanik and Somnath Chatterjee similar? Can Speaker Somnath Chatterjee take advantage of the exemption granted by Paragraph 5 of the Tenth Schedule?

The Barbosa case

The answer has to be found in the case of Dr. Luis Proto Barbosa. On January 22, 1990, Barbosa was elected Speaker of the Goa Legislative Assembly. On March 24, 1990, he resigned from his party, the Congress. On March 28, 1990, Luizinho Faleiro, an MLA, filed a petition against Barbosa, praying for his disqualification for having voluntarily given up his party membership.

In pursuance of the proviso to Paragraph 6 (1) of the Tenth Schedule, the Goa Legislative Assembly elected Dr. Kashinath Jhalmi to decide the petition. Under Paragraph 6 (1), where the question has arisen as to whether the Chairman or the Speaker of the House has become subject to such disqualification, the question shall be referred to the decision of such member of the House as the House may elect in this behalf and his decision shall be final. The Tenth Schedule clearly envisages that the Presiding Officer also can suffer disqualification on the grounds of defection.

Jhalmi gave his decision on December 14, 1990. He opined that if Barbosa wanted to resign from his party for the purpose of remaining non-partisan in the House, nothing prevented him from mentioning the cause either in a separate letter or at least making it public through the media in the press conference he held subsequently.

Jhalmi said in his decision: “Even if one presumes the cause of resignation as ‘election to the office’ of the Speaker, in absence of specific mention of it in the letter of resignation one cannot explain why he should do so after a period of two months after such election.” Thus, he held that the Speaker giving up the primary membership of his political party more than two months after he was elected Speaker cannot be considered as resignation by reason of election to the office of Speaker.

Jhalmi also opined that while continuing to be in the office of Speaker, the incumbent could not voluntarily give up membership of his political party for any cause other than election to the office of Speaker without incurring disqualification under the Tenth Schedule.

Clearly, Somnath Chatterjee could not have voluntarily given up the membership of the CPI(M) four years after assuming office and still not invited disqualification under the Tenth Schedule. Chatterjee did not also explain, as was expected of him, why he had “voluntarily given up his membership of the CPI(M)” four years after assuming office by adopting a course inconsistent with his party’s line. Following Jhalmi’s ruling, one cannot be presumptuous that Chatterjee did so to maintain the impartiality of the Speaker’s office.

The CPI(M)’s subsequent expulsion of Chatterjee from the party does not mean he did not voluntarily give up his membership of the party earlier. Rather, precisely because he had voluntarily given up his membership of the party by his implied conduct in not resigning as the Speaker, the party was forced to expel him. Therefore, his expulsion does not protect him from disqualification as a member of the Lok Sabha.

More important, Jhalmi ruled that the Speaker could not be treated as an ordinary member of the House, that is, unattached, for the purpose of Paragraph 3 of the Tenth Schedule. This paragraph, legalising splits caused by the defection of one-third of the members of a party, has now been deleted from the Schedule. But his ruling may as well apply to the entire Schedule.

It is possible to doubt the relevance of Jhalmi’s ruling because the facts and circumstances of Barbosa’s case and that of Somnath Chatterjee are not entirely similar. But both the Goa Bench of the Bombay High Court and the Supreme Court rejected Barbosa’s appeals challenging Jhalmi’s ruling.

The Supreme Court specifically held that Paragraph 5 of the Tenth Schedule of the Constitution did not protect the appellant, Barbosa (1992 Supp. (2) SCC 644). It only shows that the basis for Jhalmi’s ruling was correct and can be considered a precedent.

In view of this, there is indeed a strong case for seeking the disqualification of Somnath Chatterjee as a member of the Lok Sabha under the Tenth Schedule, and as a corollary, his removal as the Speaker.

Courtesy_
http://www.flonnet.com

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