Speaker facing the axe can’t disqualify MLAs, says SC


A Speaker should refrain from deciding the disqualification of MLAs for defection under the Tenth Schedule of the Constitution if he himself is facing the prospect of removal, the Supreme Court has held.

A Constitution Bench led by Justice J.S. Khehar observed that the ruling was a safeguard against a Speaker using the disqualification proceedings of legislators for his own political ends.

A Speaker, under the threat of losing his position, may choose to disqualify the MLAs to alter the composition of the House in his favour. “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,” Justice Khehar’s Bench interpreted Article 179 of the Constitution in a 331-page judgment on the Arunachal Pradesh crisis recently.

If a Speaker truly enjoys the support of the House’s majority, there would be no difficulty whatsoever to demonstrate the confidence which the members of the State Legislature repose in him, the judgment said.

The court was discussing Speaker Nabam Rebia’s disqualification of 14 legislators when a resolution against his own removal was pending.

It refrained from going into Mr. Rebia’s actions, merely saying that the Gauhati High Court had already stayed the disqualification. Instead, the judgment interprets Article 179, which deals with the “vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker”.

Article 179(c) provides that a Speaker (or Deputy Speaker) “may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly”.

The judgment points to the phrase “all the then members of the Assembly” to conclude that the composition of legislators should remain the very same while deciding whether a majority in the House wants the Speaker to continue or not.

“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,” the court held.

Further, the court said MLAs so disqualified by the Speaker would be subsequently deprived of the opportunity to participate in the motion against the Speaker himself under Article 179(c).

Even a court judgment later, overturning their disqualification, would be of no help to them as the opportunity to participate in the motion against the Speaker would have passed.

“The office of Speaker, with which the Constitution vests the authority to deal with disqualification petitions against MLAs, must surely be a Speaker who enjoys the confidence of the Assembly,” the court said.

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