Explained: Speaker’s powers in a rebellion

What is the News?

The Supreme Court has extended the time for rebel MLAs in the Maharashtra State Legislative Assembly, to file a written response to the Deputy Speaker’s disqualification notice.

This decision is important because the Supreme Court in previous instances has upheld the Speaker’s powers under the Tenth Schedule. It has allowed judicial review only once the Speaker has made a decision and has ruled out interference with the process.

What is the Tenth Schedule?

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Who has the power to disqualify legislators under the Tenth Schedule?

The Tenth Schedule or the anti-defection law gives the Speaker of the House the power to disqualify legislators who ‘defect’ from the party.

Supreme Court on Speakers’ Powers to disqualify legislators:

Kihoto Hollohan versus Zachillhu in 1992: In this, the Supreme Court upheld the power vested in the Speaker and said that only the final order of the Speaker will be subject to judicial review. Basically, courts have refrained from interfering with the process itself.

However, the ruling in the Nabam Rebia v Bemang Felix case has shifted the balance on the powers of the Speaker. 

Nabam Rebia v Bemang Felix case in 2016: The Supreme Court held that it is “constitutionally impermissible” for a speaker to proceed with disqualification proceedings if a no-confidence motion against him is pending.

This is to ensure that the Speaker who disqualifies legislators must enjoy the confidence of the Assembly.

Hence, this ruling gave a window to defecting legislators to stall or circumvent the Tenth Schedule by seeking removal of the Speaker when disqualification proceedings are anticipated — effectively tying the hands of the Speaker.

How can the Speaker be removed?

Under Article 179 of the Constitution, a Speaker can be removed by a resolution of the Assembly passed by a majority of all the then members of the Assembly. The process begins with the notice of at least 14 days.

In the Nabam Rebia ruling, the Supreme Court interpreted Article 179 specifically the term “all the then members of the Assembly”, to mean the composition of the house at the date/time of giving the notice for the removal of the Speaker. 

This interpretation would mean that the composition of the Assembly cannot be changed from the date of issuing of a notice of the removal of the Speaker and therefore the Speaker cannot make any decisions under the Tenth Schedule to change the composition of the House until the question of his removal is settled.

Source: The post is based on the article “Explained: Speaker’s powers in a rebellion” published in Indian Express on 29th June 2022