Case for Speaker’s disqualification

By refusing to resign as Speaker, Somnath Chatterjee becomes the first Lok Sabha Speaker to invite disqualification as an MP under the Tenth Schedule to the Constitution.

The Lok Sabha Speaker, Somnath Chatterjee, and the former Speaker of the Goa Legislative Assembly, Dr. Luis Proto Barbosa, are perhaps two presiding officers with a place of their own in India’s parliamentary history. They make an odd comparison. Mr. Chatterjee is a ten-time MP who, among other things, won the Best Parliamentarian award in 1996 and was the first Communist MP to be elected Lok Sabha Speaker. Dr. Barbosa, who served as the Chief Minister of Goa for eig ht months in 1990, was both a beneficiary and a loser of Goa’s opportunistic politics.

However, since the withdrawal of support to the United Progressive Alliance government by the Left parties, India’s parliamentary history will place Mr. Chatterjee and Dr. Barbosa together for a dubious reason. Both ‘voluntarily gave up’ their membership of the political parties to which they belonged — rendering themselves vulnerable to disqualification as legislators on the ground of defection under the Tenth Schedule to the Constitution. Let us look at the material facts.

Dr. Barbosa was elected Speaker of the Goa Legislative Assembly on January 22, 1990. He resigned from his party, the Congress, on March 24, 1990. Subsequently, Luizinho Faleiro, an MLA, filed a petition against Dr. Barbosa praying for his disqualification under Paragraph 2(1)(a) of the Tenth Schedule, for having voluntarily given up membership of the Congress. Meanwhile, Dr. Barbosa floated a new party and managed to garner enough support in the Assembly to assume office as Chief Minister.

In pursuance of a proviso to Paragraph 6(1) of the Tenth Schedule, the Goa Legislative Assembly elected Dr. Kashinath Jhalmi to decide Mr. Faleiro’s petition. The Tenth Schedule clearly envisages that the presiding officer also can suffer disqualification on the ground of defection.

Dr. Jhalmi gave his decision on December 14, 1990 and Dr. Barbosa’s term as Chief Minister came to an abrupt end. Dr. Jhalmi’s ruling is based on a correct interpretation of Paragraph 5 of the Schedule, which gives the option to the Speaker to ‘voluntarily give up’ membership of his party at the time of his election as Speaker. Dr. Jhalmi ruled that if Dr. 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 held subsequently. He said in his decision: “Even if one presumes the cause of resignation as ‘election to the Office’ of Speaker, in [the] 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.”

The key point to note is that like Dr. Barbosa, Mr. Chatterjee refused to answer questions from the media, or explain on his own why he was voluntarily giving up his membership of the CPI (M) by not resigning as Speaker.

As per Dr. Jhalmi’s ruling, a Speaker’s giving up his primary membership of the political party to which he belonged after a period of more than two months from the date of election to the office of Speaker cannot be considered resignation by reason of election to the office of Speaker. This ruling makes it clear that while continuing to be in the office of Speaker, the incumbent cannot ‘voluntarily give up’ membership of the political party for any cause other than election to the office of Speaker without incurring disqualification for defection under Tenth Schedule.

It is possible to doubt the relevance of Dr. Jhalmi’s ruling to Speaker Chatterjee’s case on the ground that the facts and circumstances of the two cases are not entirely similar. But both the Goa Bench of the Bombay High Court and the Supreme Court rejected Dr. Barbosa’s appeals challenging Dr. Jhalmi’s ruling. The Supreme Court specifically held that Paragraph 5 of the Tenth Schedule did not protect the appellant, Dr. Barbosa [1992 Supp. (2) SCC 644]. This only shows that the basis of Dr. Jhalmi’s ruling was correct and can be considered a binding precedent.

Mr. Chatterjee, like Dr. Barbosa and other presiding officers since the enactment of the Tenth Schedule in 1985, did not find it necessary, by reason of his election to the office of Speaker, to voluntarily give up the membership of the political party to which he belonged immediately before such election. Indeed, an official CPI (M) spokesman has confirmed to this newspaper that Mr. Chatterjee continued to renew his party membership annually and right up to the current year, as per the party constitution. By his conduct, he implied that his membership of the party and submission to party discipline were not inconsistent with the impartial discharge of his duties as Speaker.

It is possible to suggest that while Dr. Barbosa formally resigned from his party, Mr. Chatterjee did not. But to invoke the rigours of Paragraph 2(1)(a), it is not imperative that one should actually resign from the party. But it is well established that the phrase “voluntarily giving up membership of such political party” as mentioned in Paragraph 2(1)(a) is not synonymous with ‘resignation’ and has a wider connotation. The Supreme Court has held that even in the absence of formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs (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” (G. Viswanathan vs. Hon’ble Speaker, Tamil Nadu Legislative Assembly,1996 2 SCC 353).

Did Mr. Chatterjee ‘voluntarily give up’ his membership of the CPI (M) by his tacit refusal to resign as Speaker following the party’s withdrawal of support to the UPA government? By including his name in the list of its MPs withdrawing support to the UPA government, the CPI (M) clearly expected him to resign as Speaker. Any other inference will be illogical and unreasonable.

Imagine, for instance, that the July 22 vote of confidence led to a tie, or an equality of votes between those supporting and those opposing the confidence motion. Under Article 100(1), the Speaker shall exercise a casting vote. Had he supported the motion, it would have been defection of the highest order. Had he opposed the motion, it would have meant following the party diktat, even though he was not under the party whip. It is reasonable to suggest that, among other things, it was to avoid such embarrassment to the Speaker that the CPI (M) wanted him to resign before the confidence vote.

It is possible to argue that, after all, the CPI (M) has expelled Somnath Chatterjee from membership of the party and therefore the question of seeking his disqualification on the ground that he voluntarily gave up membership of his party does not arise. But this argument overlooks the fact that the Tenth Schedule relies on a deeming provision relating to party membership, which itself is based on a legal fiction.

The explanation (a) to paragraph 2(1) of the Tenth Schedule states that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member. Even if such a member is thrown out or expelled from the party, for the purposes of the Tenth Schedule he will not cease to be a member of the political party that had set him up as a candidate for the election. He will continue to belong to that political party even if he is treated as ‘unattached’ (G. Viswanathan vs. Hon’ble Speaker, Tamil Nadu Legislative Assembly, 1996 2 SCC 353).

It is fairly well settled that a deeming provision is an admission of the non-existence of the fact deemed. The legislature is competent to enact a deeming provision for the purpose of assuming the existence of a fact that does not even exist. The websites of both the Lok Sabha and the CPI (M) continue to show Mr. Chatterjee as a CPI (M) MP, even after his expulsion. They may well draw their sustenance from this legal fiction in the Tenth Schedule.

The Tenth Schedule may have failed to achieve its objective of curbing political defection because of its inherent flaws. But that is no ground to question its Supreme Court-endorsed premise, which is based on sound political propriety and morality: an elected member of a party should resign his membership of the legislature in the event of his inability to comply with the party discipline.

Paragraph 5 of the Schedule is meant to give protection to Speakers from disqualification only when they quit their parties for the purpose of impartial discharge of their duties as Speaker. Such a plea must be clearly made by the Speaker right at the time of his election as Speaker, and not later. It needs to be recalled that although the petition against Dr. Barbosa invoked Paragraph 2(1)(a), Dr. Jhalmi disqualified him under Paragraph 5 to show that he did not qualify for the exemption granted by it. Dr. Jhalmi’s precedent-setting decision leaves no doubt that Somnath Chatterjee happens to be the first Speaker of the Lok Sabha to invite disqualification as a Member of Parliament — making his continuance as the Speaker untenable.

http://www.hindu.com/2008/07/30/stories/2008073055111000.htm