Jun 24, 2024 08:10 PM IST
Constitutional reform that guarantees the independence of the office– and removes some of its contentious roles – is of utmost importance to ensure the sanctity of parliamentary democracy
In the 2024 general elections, the Bharatiya Janata Party (BJP) lost its majority and has since returned to power at the head of a coalition government. With a newly strengthened and emboldened Opposition, it is anticipated that Parliament might see livelier debates and discussions than it has for the last decade when the BJP enjoyed a simple majority on its own. In this context, the first issue that is on everyone’s radar is the election of the Speaker of the Lok Sabha, which is due to take place on the 26th of June. Opposition leader Aditya Thackeray has publicly warned the BJP’s coalition allies to ensure the election of a non-partisan Speaker, or risk being “broken up” by the BJP in due course. Meanwhile, there are reports that the BJP is resolute that its own nominee will be the Speaker, and that it might even depart from parliamentary convention, where the position of the deputy speaker goes to the Opposition. But what is it, precisely, that makes the post of the Speaker such a coveted one?
In a parliamentary democracy, the government is formed out of the majority party or coalition and performs the work of day-to-day governance. The legislative agenda also tends to arise from the government and tends to carry the day in Parliament because of the strength of numbers. The parliamentary Opposition’s job, on the other hand, is to scrutinise and challenge the government and perform the vital function of oversight. It can do this through multiple ways: for instance, through putting questions to the government in Parliament, through working in – and sometimes chairing – parliamentary committees, and so on. Indeed, as BR Ambedkar noted in Federalism Versus Freedom, his 1939 critique of the 1935 Government of India Act, the Opposition can scrutinise the government’s record in two main ways – through a debate on the budget, and by asking questions in the House.
Get ready to catch the final stages of the World Cup only on Crickit. Anytime, Anywhere. Explore now!
Now, the proceedings in the House – which enable the Opposition to perform its functions – are under the sole and exclusive jurisdiction of the Speaker. It is the Speaker, for example, who decides which Member of Parliament (MP)’s question to call out, or what the composition of parliamentary committees will be. Thus, the ability of the Opposition to do its job effectively requires the Speaker to be non-partisan.
Parliamentary democracies attempt to ensure this by insulating the Speaker from the majority party or coalition. Either by law or by constitutional convention, the Speaker must give up their party affiliation. Their election often goes unchallenged by the Opposition, as an effort is made to find a consensus figure to play the role. And there are strong norms that compel Speakers to perform their roles impartially. Speakers who breach these norms could well find themselves exposed to cross-party disapproval, and – eventually – the loss of their position.
In India, however, the Speaker’s independence is neither codified by the Constitution, nor is it enforced through strong constitutional conventions or norms. The Speaker is, in essence, the nominee of the ruling party or coalition – which, of course, has no incentive to nominate an independent-minded person to occupy the Chair. Indian constitutionalism, therefore, has a design – or structural – flaw, where the very individual who is meant to protect the interests of Parliament against the executive is, essentially, beholden to the executive.
In the same text that we have noted here, Ambedkar also observed that the two ways that the executive could avoid accountability were either by weakening Parliament, or by changing its composition. In recent times, we have seen examples of both, facilitated by a partisan Speaker. In the 2014-2019 Parliament, the Speaker simply refused to list an Opposition-led no-confidence motion against the government for debate and voting. In the 2019-2024 Parliament, the Speaker expelled a whole raft of Opposition MPs ahead of the discussion of far-reaching bills, such as the new criminal laws – which were eventually passed in the near-absence of the Opposition.
As if this were not problematic enough, over the years, Indian legislators have rashly voted to increase the Speaker’s powers – including through constitutional amendments. The most consequential of these is making the Speaker the adjudicating authority in cases involving MPs being disqualified for violating the anti-defection law. By simply sitting on a disqualification petition – or by deciding it in a mala fide way – the Speaker can essentially make the anti-defection law toothless, and facilitate horse-trading. This has happened on more than one occasion in various state legislatures, and it was perhaps the example that Aditya Thackeray had in mind as, during the controversy over the “real Shiv Sena” in Maharashtra in 2022, the Speaker’s allegedly partisan actions were criticised by no less than the Supreme Court. There is, therefore, the concern that a partisan Speaker would essentially allow the dominant party at the Centre to “break” its opponents, and allow such actions to go unpunished by simply refusing to implement the anti-defection law.
It should now be clear why jockeying over the Speaker’s role has become so important. In a functioning parliamentary democracy, the Speaker would be a low-profile, non-partisan office, simply concerned with running the day-to-day affairs of the House. In India, however, the Speaker not only controls the House, but has also been placed in charge of the future of political parties, when one dominant party tries to engineer defections from its rivals. The final nail in the coffin is the Indian Constitution’s failure to guarantee the independence of the Speaker from the ruling party, which – in turn – creates incentives for the ruling party to control the Speaker, and through the Speaker it can control the Opposition and neutralise Parliament.
The ongoing fight over the Speaker’s post, therefore, reveals to us certain major design flaws in the constitutional scheme that governs the relationship between the executive and the Parliament, and between the ruling party/coalition and the Opposition. If we are to avoid a situation where the executive and the ruling party can suppress the Opposition and the Parliament, constitutional reform that guarantees genuine Speaker independence – and removes some of their other roles, such as adjudicating defection cases – is of utmost importance. Otherwise, the “parliamentary” aspect of India’s parliamentary democracy risks being very close to something like a sham.
Gautam Bhatia is a Delhi-based advocate. The views expressed are personal
Story Saved
