The Supreme Court today said that the anti- defection aspect falls completely under the domain of Speaker. The observation came while critically examining a decision of Arunachal Pradesh Governor J P Rajkhowa ordering maintenance of the party-wise position of MLAs in the assembly. The court also noted that the governor had no role to play in it.
“How can the Governor take away the constitutional powers of the Speaker to disqualify lawmakers on the grounds of defection?
“The Governor may have some role in the functioning of the assembly, but he has no role to play in issues prescribed in the Tenth Schedule (anti-defection provision) of the Constitution,” a five-judge Constitution Bench headed by Justice J S Khehar said.
Observing that democracy was part of the basic structure of the Constitution, the bench said, hence, any “undemocratic” decision would be open to judicial review.
“Democracy is a basic structure of the Constitution and if some decisions are anti-democratic, it is the subject matter of judicial review,” the bench, also comprising Justices Dipak Misra, Madan B Lokur, P C Ghose and N V Ramana, said.
However, senior advocate T R Andhyarijuna, appearing for Rajkhowa, defended the Governor’s decisions saying when the Speaker was under clout and part of a conspiracy with the state government, the Governor exercised his discretionary power which is “undefined” in the Constitution. He also said such an exercise of discretionary powers leaves hardly any scope for judicial scrutiny.
Andhyarujina also said the Governor’s act may be “questionable”, but he is not “answerable”.
“The Governor has three kinds of powers under the Constitution. He has to act on aid and advice of the Chief Minister and his Council of Ministers. Second, he has discretion… Third, (his) power is undefined,” he said.
During the hearing, the bench said the Governor may have the power to summon and advance the sitting of the House, but he cannot ask that a particular party-wise composition be maintained, as it would amount to interference in the working sphere of the Speaker.
“Is the Speaker prohibited under the law not to accept the resignation of legislators,” the bench asked when one of the lawyers raised the manner in which the resignations of rebel Congress MLAs were accepted.
The court also said its observations are “tentative” in nature.