Report No. 255

(ii) History of reform proposals

5.19.1. Without disregard to the high office of the Speaker, apprehensions regarding the partisan nature of the Speakers' decisions have been a cause for concern. Former Speaker Mr. Shivraj Patil himself in his decision of June 1, 1993 (referred above) duly noted:

"Since Speakers in India are, after all, party members, they should not be burdened with the job of pronouncing on the membership of their fellow members. Whatever they decide, motives would be imputed to them."

5.19.2. It would be unrealistic to expect a Speaker to completely abjure all party considerations while deciding on matters under the Tenth Schedule.201 The Dinesh Goswami Committee Report recommended that the anti-defection law should be changed insofar as

201. Kashyap, supra note 178, at 801

"the power of deciding the legal issue of disqualification should not be left to the Speaker or Chairman of the House, but to the President or the Governor, as the case maybe who shall act on the advice of the Election Commission, to whom the question should be referred for determination as in the case of any other post-election disqualification of a Member."202

202. Dinesh Goswami Committee, supra note 113, at 60

5.19.3. The 170th Report of the Law Commission also recommended that the decision on the question of disqualification on the ground of defection should be entrusted to the President and the Governor, as the case may be, who shall render their decision in accordance with the opinion of the Election Commission. Furthermore, the Election Commission, in its Report on Proposed Electoral Reforms (2004) also observed:

"All political parties are aware of some of the decisions of the Hon'ble Speakers, leading to controversies and further litigations in courts of law. The Commission sees substance in the (above) suggestion that the legal issues of disqualifications under the Tenth Schedule should also be left to the President and the Governors of the States concerned, as in the case of all other post-election disqualifications of sitting MPs, MLAs and MLCs, under Articles 103 and 192 of the Constitution. In the case of disqualifications under the Tenth Schedule also, the President or the Governor may act on the opinion given by the Election Commission."203

203. ECI, Proposed Electoral Reforms, D.O. No. 3/ER/2004 (2004) (hereinafter "ECI 2004 Reforms").

5.19.4. Consequently, the Election Commission proposed that in a manner similar to other cases of post-election disqualification of sitting MPs, MLAs, and MLCs under Articles 103 and 192 of the Constitution, disqualification on the ground of defection should also be left to the President and Governors of States. The President or the Governor may act on the opinion furnished by the Election Commission.

5.19.5. The Election Commission recommended that it would give its opinion to the President/Governor in the matters of post-election disqualification after giving full opportunity of being heard to the parties concerned. One of the grounds for the Election Commission to have made such recommendation was that if decisions are rendered by the President/Governor, on the opinion of the Commission, it would receive more respect and acceptability from the common people.204

204. Ibid., at 19

5.19.6. The Election Commission's recommendation was also endorsed by the Ethics in Governance Report.205 The NCRWC also recommended that the power to decide on questions as to disqualification on the ground of defection should vest in the Election Commission instead of the Chairman or the Speaker of the House concerned.206 The NCRWC made this recommendation for the reason that

205. ARC Report, supra note 119, at Chapter 2, Part 1.3

206. NCRWC Report, supra note 13, at para 4.18

"Some Speakers have tended to act in a partisan manner and without proper appreciatio.- deliberate or otherwis.- of the provisions of the Tenth Schedule."207

207. Ibid., at para 4.18

5.19.7. The proposal to vest the power to decide on disqualification petitions on the ground of defection assume importance for the office of the Speaker as well, as is evident from the view taken by the Supreme Court in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1.

"Undoubtedly, in our constitutional scheme, the Speaker enjoys a pivotal position. The position of the Speaker is and has been held by people of outstanding ability and impartiality. Without meaning any disrespect for any particular Speaker in the country, but only going by some events of the recent past, certain questions have been raised about the confidence in the matter of impartiality on some issues having political overtones which are decided by the Speaker in his capacity as a Tribunal."

5.19.8. This can be understood to mean that if the power to decide disqualification petitions made under the Tenth Schedule is vested with the President/Governor, the Speaker's office would be insulated from the reach of constitutional challenges of the kind put forth in Kihota Hollohan.