SC to consider if Shiv Sena dispute needs to be referred to a seven-judge Bench

SC to consider if Shiv Sena dispute needs to be referred to a seven-judge Bench

Subject: Polity

Context: The Uddhav Thackeray faction of Shiv Sena told the Supreme Court that it will seek reference of cases pertaining to Maharashtra political crisis to a seven-judge Constitution bench, to reconsider a 2016 ruling on the Speaker’s powers to deal with disqualification pleas.

• CJI Chandrachud said it was for the five-judge bench to decide whether to refer the matter to a seven-judge bench, and arguments could be addressed on this issue.
• In the Nabam Rebia verdict, a five-judge bench ruled that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending.
• Article 95: Power of the Deputy Speaker or other person(s) to perform the duties of the office of or to act as the Speaker of the Lok Sabha.

Role of speaker

• The sole representative and guardian of powers and privileges of the members, the House as a whole and its Committees.
• Principal spokesperson of the House and represents the collective voice of the House.
• Quasi-Judicial Body: His/her decision in all Parliamentary matters (including disqualification matters under Tenth Schedule) is final, binding and ordinarily cannot be challenged in the Court of law. Thereby, Speaker acts as the ultimate arbitrator.
• For example, on this question whether a bill is a money bill or not, his/her decision is final.
• However, Supreme Court in KihotoHollohan vs Zachillhu and Others, 1992 case ruled that the decision of the Speaker in this regard is subject to judicial review.
• Maintains order and decorum in the House for conducting its business and regulating its proceedings.
• Allocates duration for debates, can discipline members of the House, and even override decisions taken by the Committees of the House.
• Final interpreter of the provisions of the Constitution of India, Rules of Procedure and Conduct of Business of Lok Sabha, and Parliamentary precedents within the House.

Disqualification under the Tenth Schedule

• The Anti-Defection Law was passed in 1985 through the 52nd amendment to the Constitution.
• It added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”.
• According to it, a member of a House belonging to any political party becomes disqualified for being a member of the House, if
• he voluntarily gives up his membership of such political party; or
• he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

Exceptions to the disqualification on the ground of defection (Two cases)

• If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
• If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of the office.

Powers of Speaker with regard to Anti-Defection Law

• Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
• After KihotoHollohan versus Zachilhu case (1993), the Supreme Court declared that the decision of the presiding officer is not final and can be questioned in any court. It is subject to judicial review on the grounds of malafide, perversity, etc.