New Delhi: The Supreme Court on Tuesday asked the Parliament to "seriously consider" establishing a permanent tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism, to examine disputes concerning disqualification of MPs and MLAs.
A three-judge bench, headed by Justice R.F. Nariman and comprising Justices Aniruddha Bose and V. Ramasubramanian, said it is time that Parliament has a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when the Speaker continues to belong to a particular political party either de jure or de facto.
Emphasising it is really essential to give "real teeth to the provisions contained in the 10th Schedule, which are so vital in the proper functioning of our democracy", the court observed that the Speaker, in acting as a Tribunal under the Constitution's Tenth Schedule, is bound to decide disqualification petitions within a reasonable period.
The court reckoned the Parliament may seriously consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of disputes concerning disqualification which arise under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism "to ensure that such disputes are decided both swiftly and impartially".
The top court's observation came in a case of disqualification of Manipur Forest and Environment Minister Thounaojam Shyamkumar.
Shyamkumar had won on a ticket from Congress, but switched to the BJP-led government in the state. In the verdict, the top court held that the Speaker can't sit on a disqualification petition indefinitely. Terming it it is essential for the Speaker to decide on the matter within a reasonable time period, it recommended the disqualification petitions should be decided within three months.
"... a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided if the constitutional objective of disqualifying persons who have infracted the Tenth Schedule is to be adhered to," it said.
The bench said the issue of the independence of the Speaker has been raised many times, and put forth a query: "Should the Speaker be the sole person entrusted with decisions on disqualification petitions, especially when he/she is also a member of a political party?"
The court said the elected Members of Parliament or the legislative assemblies should not be allowed to continue, if they have been disqualified on issues such as anti-defection.
In the Manipur case, the top court asked the Speaker to decide disqualification petitions within four weeks, as it observed that in the absence of the decison, the MLAs could come back to the court.
In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. "This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the Speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality," the top court held.