SC: Can't assume Speaker's role to direct MLAs' disqualification
A Supreme Court bench heard arguments in petitions challenging a State Assembly Speaker's refusal to disqualify a group of MLAs under the Tenth Schedule (anti-defection law)
The Court examined whether it could itself declare the MLAs disqualified if the Speaker's order is set aside, or whether the matter would have to be remanded back to the Speaker
The bench observed that the judiciary cannot assume the Speaker's role and directly order disqualification, reaffirming that the Speaker is the designated adjudicating authority under the Tenth Schedule, subject only to judicial review of that decision
The hearing continued over multiple days, with arguments on whether the Speaker's original order was consistent with binding constitutional precedent
The Tenth Schedule — Anti-Defection Law and the Speaker's Adjudicatory Role
The Tenth Schedule was inserted into the Constitution by the 52nd Amendment Act, 1985 to curb political defections by disqualifying members of Parliament or State Legislatures who voluntarily give up membership of their party, vote/abstain contrary to a party whip without prior permission (if not condoned within 15 days), or (for independents/nominated members) join a party after being elected. Under Paragraph 6 of the Tenth Schedule, the question of disqualification on grounds of defection is decided by the Speaker (or Chairman, in the case of the Rajya Sabha/Legislative Council), whose decision is deemed "final."
Key Details
- Paragraph 2: grounds for disqualification (voluntary giving up of membership; defying whip; post-election defection of independents/nominated members)
- Paragraph 4: exempts mergers where two-thirds of a legislature party agree to merge with another party
- Paragraph 6: vests the decision-making power exclusively in the Speaker/Chairman, acting in a quasi-judicial capacity
- Paragraph 7 originally barred courts from reviewing the Speaker's decision — this was struck down as unconstitutional
The current case turns on exactly this Paragraph 6 authority — whether a court, having found fault with a Speaker's decision, may substitute its own finding of disqualification instead of sending the matter back to the Speaker to decide afresh.
Kihoto Hollohan v. Zachillhu (1992) — Judicial Review of the Speaker's Decision
In Kihoto Hollohan v. Zachillhu (1992), a five-judge Constitution Bench of the Supreme Court upheld the constitutional validity of the Tenth Schedule but, by a 3:2 majority, struck down Paragraph 7, which had sought to bar judicial review of the Speaker's decisions. The Court held that while acting under the Tenth Schedule, the Speaker functions as a tribunal adjudicating rights and disqualification, and such quasi-judicial orders are subject to judicial review — but only on limited grounds.
Key Details
- Judicial review is confined to grounds of mala fides, perversity, violation of constitutional mandate, or non-compliance with natural justice — not a review of the Speaker's decision on merits generally
- The Speaker's decision was held final under Paragraph 6, subject to this limited review, preserving separation of powers between legislature and judiciary
- Decided by a Constitution Bench (5 judges), reflecting the case's constitutional importance
The Court's caution about not "assuming the Speaker's role" flows directly from Kihoto Hollohan — judicial review can strike down a perverse Speaker's order, but the constitutional design still requires the Speaker (not the Court) to be the primary decision-maker on disqualification, unless remand is impractical.
Subhash Desai v. Governor of Maharashtra (2023) — Recent Precedent on Speaker's Delay and Discretion
In Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), a Constitution Bench considered disqualification petitions arising from a split in a state's ruling party, along with questions on the Governor's discretion to call floor tests and the Election Commission's role in recognising a party faction and its symbol. The Court held the Governor lacked objective material to have directed a floor test, but declined to itself decide the pending disqualification petitions, directing the Speaker to decide them within a defined timeframe.
Key Details
- Reaffirmed that Speaker, Governor and Election Commission perform independent constitutional functions that courts should not conflate or usurp
- Criticised delay by Speakers in deciding disqualification petitions, but stopped short of deciding disqualification itself
- Distinguished the Speaker's Tenth Schedule role from the Election Commission's role in deciding which faction is the "real" party under the Symbols Order
The present case continues this line of precedent — the Court is again weighing whether persistent delay or an allegedly flawed Speaker's order justifies the judiciary stepping into the Speaker's shoes, or whether remand remains the constitutionally correct course.
- Tenth Schedule inserted by: 52nd Constitutional Amendment Act, 1985
- Disqualification decision-making authority: Speaker (Lok Sabha/Legislative Assembly) or Chairman (Rajya Sabha/Legislative Council) under Paragraph 6
- Merger exemption threshold: two-thirds of the legislature party must agree, per Paragraph 4
- Kihoto Hollohan v. Zachillhu: decided 18 February 1992, by a 5-judge Constitution Bench, 3:2 majority; struck down Paragraph 7 (bar on judicial review)
- Grounds for judicial review of Speaker's Tenth Schedule order: mala fides, perversity, violation of constitutional mandate, breach of natural justice
- Subhash Desai v. Governor of Maharashtra: decided 11 May 2023, Constitution Bench
- Analogous provision for Rajya Sabha Chairman's removal: Article 67(b) (distinct from Speaker's removal under Article 94(c))