The speaker of Parliament or a legislative assembly can decide on the notice seeking his recusal from dealing with disqualification pleas of lawmakers subject to judicial review and can ascertain whether such applications are bona fide or intended only to evade disciplinary action, the Supreme Court said on Thursday.
The top court, while referring to a larger bench its 2020 judgment holding that the speaker of a house cannot adjudicate disqualification pleas of lawmakers under the Tenth Schedule of the Constitution if a notice seeking his removal from office is pending, delineated the procedures to be followed by the presiding officers in the interim.
The measures are to be followed in the interregnum, said a five-judge Constitution bench headed by Chief Justice DY Chandrachud.
"Pending the decision of the larger bench, as an interim measure, adoption of the following procedure may subserve the objective of the Tenth Schedule, Symbols Order as well as Article 179(c). It may also provide some amount of clarity and certainty,” the bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha said.
The bench found fault with the 2020 Nabam Rebia Constitution bench verdict and said it did not consider whether a "constitutional hiatus in the operation of the Tenth Schedule ensues because of the temporary disablement of the speaker".
It said the other aspect which was not considered by the five-judge bench headed by then Justice JS Khehar is, whether the "temporary disablement of the functions of the Speaker under the Tenth Schedule is prone to misuse by MLAs who anticipate that disqualification petitions will be instituted against them or by MLAs against whom disqualification petitions have already been instituted”.
The top court said, "To give quietus to the issue, we refer the following question (and any allied issues which may arise) to a larger bench: whether the issuance of a notice of intention to move a resolution for the removal of the Speaker restrains them from adjudicating disqualification petitions under the Tenth Schedule of the Constitution."
Outlining the interim measures, the bench said, the investiture of exclusive adjudicatory jurisdiction upon the speaker to determine the complaints under the Tenth Schedule will entitle the speaker to rule upon and decide applications questioning their jurisdiction.
The bench said that the speaker is entitled to rule on applications which require them to refrain from adjudicating proceedings under the Tenth Schedule on the ground of initiation of a motion for their removal under Article 179(c).
"A speaker can examine if the application is bona fide or intended only to evade adjudication," it said, adding that if the speaker believes that the motion is well founded, they may adjourn the proceedings under the Tenth Schedule till the decision for their removal is concluded.
The bench said on the other hand, if the speaker believes that the motion is not as per the procedure contemplated under the Constitution, read with the relevant rules, they are entitled to reject the plea and proceed with the hearing.
"The decision of the speaker, either to adjourn the proceedings under the Tenth Schedule in view of the pending proceedings under Article 179(c) or to proceed with the hearing will be subject to judicial review. As the decision of the speaker relates to their jurisdiction, the bar of a quia timet (because it is feared or apprehended) action, as contemplated in Kihoto Hollohan (1992 verdict) will not apply," the bench said.
Article 179 stipulates that a speaker (or a deputy speaker) may be removed from their office by a resolution passed by a majority of all the then members of the assembly.
The bench said that Nabam Rebia 2020 verdict is in conflict with the judgment in Kihoto Hollohan (2020) because the decision in Kihoto holds that there is no reason to doubt the independence and impartiality of the speaker when adjudicating on proceedings under the Tenth Schedule.
"In contrast, in Nabam Rebia, this court doubted the ability of the speaker to remain neutral while deciding disqualification petitions after a notice of intention to move a resolution for the removal of the speaker has been issued," it said.
The bench said Article 181 of the Constitution provides that the speaker shall not preside over a sitting of the legislative assembly while a resolution for his removal is under consideration.
"It appears that the majority in Nabam Rebia did not consider the effect and import of Article 181, and whether the Constitution envisages the imposition of any restriction on the functions of the speaker beyond the limited restriction imposed by Article 181," it said.
