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Mr. Speaker: the Indian “avatar”

On July 22nd, 2008 the Lok Sabha channel ratings were the highest. The Lok Sabha displayed a distressing but truthful show of our political class during the debate on the confidence vote.

The impact on one’s mind was first, a disorderly House where the Prime Minister was not allowed to speak, secondly the spectre of currency notes floating around encapsulating the condition of our entire political system and thirdly the sonorous voice and dignified mien of Mr. Speaker Somnath Chatterjee — a performance to do the Roman Senate proud in its halcyon days.

Our Constitution recognises the office of the Speaker and Deputy Speaker of the Lok Sabha who can be removed only by a resolution passed by “a majority of all the then members of the House” — not a simple majority of those present. A Speaker shall not vote in the first instance under Article 100 but shall have and exercise a casting vote in the event of equality of votes. This is equally true of the Speaker and Deputy Speaker of the Legislative Assembly. The English Speaker and the conventions under which he functions have undergone a considerable change in India. The “Speakership” has been “tropicalised” and “indigenised”. The Indian edition with some notable exceptions, is a faint carbon copy of the original. It is almost a different species at least in the Legislative Assemblies.

In England, historically, the Speaker who was the agent of the King gradually became the “eyes and ears” of the House of Commons. After the Civil War, he represented the House of Commons. When in The Seventeenth Century, Charles I arrived in the Commons to arrest the five knights for treason, Mr. Speaker Lenthall is reported to have said “I have neither eyes to see nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here, and I humbly beg Your Majesty’s pardon that I cannot give any other answer than this to what Your Majesty is pleased to demand of me.”

In England, customarily, the Speaker severs his connections with his party. A Minister does not propose him. Unofficial members propose and second him to demonstrate his independence and impartiality. He renounces active party politics, unlike India, where former Speakers Manohar Joshi and Shivraj Patil and many others at the State level continue in active party politics looking forward with “vaulting ambitions.”

Speaker Betty Boothroyd an eminent Labour leader on a tied vote in 1993 on the European Communities legislation (The Maastricht Treaty) — voted in favour of the Conservative government.

According to the Parliamentary Committee Report of 1970 during the first 17 years of our Parliament and Legislatures there were 542 cases of defection but there were 438 defections in the last 12 months. Subhash Kashyap, the distinguished former Secretary-General of the Lok Sabha states, “by the end of March 1971 approximately 50 per cent of the legislators (Lok Sabha and Legislative Assembly members) changed their party affiliations and several of them did so more than once — some of them as many as five times.” In smaller States the percentage of defections would be much higher. Many got ministerial posts.

‘Aya Rams’ and ‘Gaya Rams’ established ‘Ram Rajya’ for the politician.

In this background, the Fifty Second Amendment inserted the Tenth Schedule in the Constitution to arrest defections. The objects and reasons of the amending Bill stated “the evil of political defections has been a matter of national concern. If it is not combated it is likely to undermine the very foundations of our democracy. .”. The impact of the Tenth Schedule was to elevate the Speaker to the position of a Judge and discharge duties of adjudication for which the office was wholly unsuited. The 52nd Amendment Bill was introduced in 1985 on Rajiv Gandhi sweeping the polls after the assassination of Indira Gandhi. The Anti Defection Law was a shield to retain his own power and prevent dissidence. The centrepiece of the Anti-Defection Law was finality being given to the Speaker’s decision and complete ouster of the jurisdiction of the courts to overturn it. Thus the ruling party through its own Speaker could disqualify dissenting members at will and perpetuate itself in power.

The Supreme Court upset this applecart and destroyed the centrepiece. The Speaker’s decisions were subjected to judicial review both by the Supreme Court and the High Courts and the ouster clause was invalidated. The majority (speaking through Venkatachaliah, J.) in the leading case of Kihoto Hollohan praised the Speaker’s high status quoting from English conventions and upheld part of the Tenth Schedule while invalidating the ouster clause. The minority (led by Verma, J.) struck down the Tenth Schedule in its entirety, inter alia on the ground that conferring such an adjudicatory power was contrary to the basic feature of the Constitution because the Speaker could not be impartial or objective under pressure of political compulsions and his judgment would be biased. This dimension of the minority view proved prophetic. In a series of decisions the Speakers devalued their office and indulged in cheap party politics not unmixed with personal ambitions. All parties played the same tune. One of the low-water marks was from Goa, where Speaker Dr. Luis Barboza resigned from the Ruling Party of which he was a member, formed a new party and became Chief Minister meanwhile ensuring multiple defections.

By 1991, the position was pathetic, Speaker Rabi Ray in his decision in 1991 dealing with the Janata Party’s split stated “The present goings on in the country are indeed deeply disturbing and distressing and if the situation is allowed to drift people will lose their faith in the very system.”

Over 17 years have passed and the electorate has completely lost faith in the system. The Ninety First Amendment 2003, deprived the defector of a ministership or a political post but did not prevent other allurements to a venal class. The Anti Defection Law by putting adjudicatory responsibility on the Speaker has completely misfired. The Speakership under Indian conditions is totally devalued. Coalition political formations are gaining enormous strength even at the Centre and the same scenario as in the States would soon be replicated in Parliament. After all by and large active politicians have the same hue. “All men have their price”, said Sir Robert Walpole, regarded as the first English Prime Minister who in 1735 started occupying No. 10, Downing Street.

If the Speaker’s position is to be restored certain drastic constitutional amendments are necessary. First, the adjudicatory role of the Speaker relating to defections, splits and mergers must be entrusted with either the Election Commission or any neutral body outside the legislature. Secondly, the Speaker should resign from the party and should eschew active party politics. Thirdly, once a Speaker always a Speaker and a convention be established to re-elect him without contest. Whether there is political will at the highest levels of the major parties to carry out this reform only time can tell. Until then the Indian Speaker will neither command public confidence nor public esteem.

James Bryce wrote as far back as 1888 in his celebrated book The American Commonwealth that visitors returning from the USA were invariably asked the question “Isn’t everybody corrupt there?” Does India fit that mould?

(Anil Divan is a senior advocate. E-mail: abdsad@airtelmail.in )

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