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Report No. 255

C. Procedure under Paragraph 6 of the Tenth Schedule

(i) The role of the Speaker in deciding petitions under the Tenth Schedule

5.18.1. It is necessary that the decisions taken by the deciding authority under the Tenth Schedule are viewed as impartial and untainted by political considerations. Currently, under Paragraph 6 of the Tenth Schedule, any question as to whether a member of a House has become subject to disqualification under the Tenth Schedule is referred to the Chairman/Speaker of the House. While the decision of the Chairman/Speaker can be judicially reviewed on various grounds, the presence of Paragraph 6 has generated widespread controversy.

5.18.2. In Kihota Hollohon v. Zachilhu, (1992) 1 SCC 309 the constitutionality of the Tenth Schedule was challenged on the ground that the investiture of adjudicatory functions in the Chairman/Speakers creates the apprehension of political bias. It was contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important aspect of democracy and that the same would be vitiated by vesting the adjudicatory function in the Speaker.

In response to this contention, the Supreme Court held that the Chairman/Speakers hold a pivotal position in the scheme of Parliamentary democracy and it would be inappropriate to express distrust in the high office of the Speaker, merely because some of the Speakers are alleged to have discharged their functions in a manner not befitting the great traditions of their high office.

Hence, immense confidence was invested in the high position that the Speaker enjoys within the constitutional scheme. Regardless of this, Courts have imposed safeguards to ensure that the Speaker/Chairman does not act in an arbitrary manner. As a necessary safeguard, the decision of the Speaker is subject to review on the grounds of mala fides, non-compliance with the rules of natural justice and perversity, among others.

5.18.3. However, due regard should be had to the minority view expressed in Kihota Hollohan. The minority held that the Speaker being dependent on continuous support of the majority in the House, he does not satisfy the requirement of an independent adjudicating authority and his choice as the sole arbitrator in the matter violates an essential attribute of the basic feature. Kihota Hollohon v. Zachilhu, AIR 1993 SC 412, at 449, 451.

Not surprisingly, decisions of Speakers with regard to disqualification on the ground of defection have been challenged in various instances for being biased and partial. For instance, in Mayawati v. Markandeya Chand and Ors, AIR 1998 SC 3340 the Speaker's decision was challenged as being perverse because the Speaker unduly delayed the proceedings under the disqualification petition. While the Court refused to set aside the order of the Speaker in this case, legal challenges like these erode the confidence posed in the office of the Speaker.

In D. Sudhakar v. DN Jeevaraju and Ors., 2012 (1) SCALE 704 the impugned order of the Speaker was held to be vitiated by mala fides because the disqualification petition was decided by him in haste and revealed a partisan attitude in his approach. The Court observed that the Speaker's decision is subject to judicial review under Articles 32, 226 and 136 as the Speaker discharges quasi-judicial functions when acting under Paragraph 6 of the Tenth Schedule.

5.18.4. The Supreme Court in Balchandra L. Jarkiholi and Ors. v. BS Yeddyurappa, (2011) 7 SCC 1 also affirmed that the Speaker functions in a quasi-judicial capacity, which makes orders passed by him subject to judicial review. In this case, the Speaker was held to have not taken into consideration rules of evidence while acting on the disqualification petition, and to have acted in haste and in violation of the principles of natural justice. The Court said that the Speaker acted in 'hot haste' while disposing off the disqualification petition, even though there was no conceivable reason for the Speaker to have taken up the matter in such hurry.

5.18.5. These instances show that even though Paragraph 6 gives finality to the Chairman/Speaker's decision, there is ample scope for his decision to be reviewed. The decision of the Speaker is not immune from challenge before the High Court under Articles 226 and 227 of the Constitution. Rajendra Singh Rana v. Swami Prasad Maurya (2007) 4 SCC 270.

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