Sibal's Tenth Schedule Plea Puts Speaker's Adjudicatory Power Back Before Supreme Court

New Delhi, July 22: The Supreme Court's decision to list senior advocate Kapil Sibal's plea for hearing on July 27 adds to a docket that, taken as a whole, may finally force the Court to confront a question it has left unsettled since 1992: whether a Presiding Officer, whose tenure and political standing are tied to the ruling majority in the House, can continue to function as the sole first-instance adjudicator of defection disputes under the Tenth Schedule.

Sibal, appearing before a bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana, sought urgent listing of a petition filed in his personal capacity as an Independent Rajya Sabha MP. His submission was narrow in form but wide in implication: whether the composition of Parliament can be permitted to change in the manner currently occurring in the country, and how paragraph four of the Tenth Schedule ought to be read in that context. The CJI, taking note of the submissions, agreed to list the matter for July 27, a Monday.

Paragraph four of the Tenth Schedule is the merger exception. Where the Schedule ordinarily disqualifies a legislator who voluntarily gives up membership of the party on whose ticket they were elected, or who defies a party whip, paragraph four exempts members from disqualification where their original party has merged with another, provided at least two-thirds of the members of the legislature party concerned have agreed to the merger. The provision exists to separate a genuine, negotiated merger of political parties from an engineered defection dressed up as one. Sibal's petition, on the facts placed before the Court, goes to whether that distinction is being honoured at all, or whether paragraph four has instead become the mechanism through which breakaway factions retroactively manufacture the appearance of a merger to escape the disqualification consequences that would otherwise follow under paragraphs two and three.

The timing is not incidental. The same day Sibal's plea was mentioned, a separate petition filed by Shiv Sena (UBT), challenging the Lok Sabha Speaker's approval of the merger of a section of its MPs with the Shinde faction, was listed before a bench headed by Justice P S Narasimha. Sibal drew the CJI's attention to that pendency, and to other similar pleas already before the Court. The docket, read together, now spans defections and mergers involving AAP, Trinamool Congress, and Shiv Sena (UBT) MPs joining the ruling BJP and its allies. That the same underlying grievance recurs across different parties, Houses, and legislatures is itself telling: it suggests paragraph four is being invoked with a frequency and a procedural pattern well beyond its intended, narrow use.

This is where the constitutional design problem resurfaces. Paragraph six of the Tenth Schedule vests the decision on whether a member has incurred disqualification in the Speaker or Chairman of the House concerned, and Explanation (c) to that paragraph deems such a decision to be a proceeding in Parliament or the Legislature for the purposes of Articles 122 and 212. The Constitution Bench in Kihoto Hollohan v. Zachillhu (1992) upheld this scheme against a basic-structure challenge premised on the argument that adjudicatory power over what is essentially a quasi-judicial question ought not to rest with a political functionary. The Court's reasoning rested on the presumption that the Speaker, though a party member, acts as a tribunal once seized of a disqualification petition, and that this quasi-judicial role is severable from, and does not compromise, the Speaker's otherwise partisan position. The Court did subject the Speaker's decision to judicial review on grounds available against any tribunal, including mala fides, perversity, and breach of natural justice, but confined such review to the final order rather than permitting interference at intermediate stages.

In the decades since Kihoto, the Court has repeatedly encountered the gap between that presumption and how the Schedule functions in practice. In Rajendra Singh Rana v. Swami Prasad Maurya (2007), it found that a Speaker's failure to decide a disqualification petition, while allowing the defecting members to participate in and influence the composition of a new government, amounted to a decision vitiated by mala fides. In Nabam Rebia v. Deputy Speaker (2016), a different Constitution Bench held that a Speaker could not adjudicate disqualification petitions while a resolution for the Speaker's own removal was pending, precisely because impartiality could not be presumed in that period. More recently, in the matter arising from the Maharashtra political crisis and decided in Subhash Desai v. Governor of Maharashtra (2023), the Court expressed clear disquiet over Speakers sitting on disqualification petitions for months or years without deciding them, allowing defecting members to alter the arithmetic of the House and even change the government while their own disqualification remained undetermined. The Court went so far as to observe that the Speaker had acted contrary to the constitutional scheme in recognising a faction without first deciding the pending disqualification petitions against its members, yet it declined to itself adjudicate those questions or unseat the resulting government, citing the limits of what relief could be moulded at that remove in time.

That pattern, delay followed by a fait accompli that judicial review arrives too late to reverse, is the structural core of what Sibal's plea and the pending Shiv Sena (UBT) matter both place before the Court once more. If a Speaker can decline to decide, or can decide in a manner favouring the ruling dispensation, and if the consequence of that delay is an irreversible shift in the House's composition and confidence before any court can intervene, the Kihoto premise that judicial review is an adequate safeguard becomes difficult to sustain in practice, whatever its theoretical soundness. The paragraph four merger exception compounds this difficulty, since the threshold determination, whether two-thirds of a legislature party genuinely agreed to a merger, is itself a factual and political question that the Speaker decides in the first instance, carrying the same incentives and the same possibility of delay the Court has already found problematic in ordinary disqualification cases.

What the Court does with Sibal's petition on July 27 will indicate whether it intends to use the current cluster of pending matters to revisit the design question left open since Kihoto, rather than continuing to dispose of individual defection disputes on their specific facts. The narrower course would be to decide the Shiv Sena (UBT) merger challenge and any connected matters strictly on whether the Lok Sabha Speaker's approval met the two-thirds threshold and complied with natural justice, leaving Kihoto's institutional framework undisturbed. The broader course, which Sibal's framing invites by asking whether the composition of Parliament itself can be permitted to change through this mechanism, would require the Court to consider whether the time has come for a different adjudicatory mechanism altogether, an independent tribunal or a fixed, mandamus-enforceable timeline, rather than continued reliance on after-the-fact review of Speaker's decisions that by the time they are reviewable have already produced irreversible political consequences. Since revisiting Kihoto's core holding would likely require a bench of five judges or more, the more probable near-term outcome is that the CJI-led bench uses the July 27 hearing to decide whether these pending matters ought to be tagged together and referred to a larger bench, rather than deciding the substantive question itself. That procedural decision, on tagging and reference, is likely to be the more consequential news to emerge from the July 27 listing than any observation on the merits.