This article is written by Shamim Shaikh. This article talks about the case of Anil Kumar Jha vs. Union of India which deals with the Supreme Court’s intervention in Jharkhand’s political crisis by directing the videotaping of the proceedings of the Legislative Assembly and appointing the Pro-tem Speaker for the floor test and the Governor”s power to appoint Anglo Indians in Legislative Assembly. This article will revolve around the constitutional validity of the appointment of Pro-tem speakers by the Governor in legislative assembly and as well as their roles.

Introduction

Freedom to choose the representatives freely by electing the leaders is the democratic foundation of this country. However, when those elected representatives use their powers arbitrarily, they undermine this basic democratic foundation and create instability in the government’s smooth functioning. Whenever the basic structure of the Constitution is in question, it is the role of the judiciary to intervene and restore this instability. In this delicate interplay of powers to maintain stability and balance, the judiciary acts as a guardian of justice.

In the case of Anil Kumar Jha vs. Union Of India (2005), the Supreme Court addressed the issue surrounding the exercise of powers by the Governor under Article 180 & Article 333 of the Indian Constitution. The petitioner, Anil Kumar Jha, a prominent Senior Advocate of the Supreme Court, challenged the Governor’s decision on appointing a Pro-tem Speaker for the Jharkhand Legislative Assembly, arguing that the appointment departed from established constitutional norms. The court deemed the actions of the Governor arbitrary and an abuse of power. This case focused on the Governor’s role in nominating a Pro-tem Speaker and the appointment of an Anglo-Indian representative, that not only includes the Governor’s discretionary powers but also potential misuse and discrimination associated with this power. To ensure fairness and restore stability, the Supreme Court ordered a floor test to be conducted in assembly to determine the true majority. 

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Brief details of the case

Name of the case – Anil Kumar Jha vs. Union of India 

Case Number: Writ Petition (C)  No. 120 of 2005 and Writ Petition (C) No. 123 of 2005

Date of Judgement: 7th March, 2005

Court: The Supreme Court of  India

Bench: Hon’ble Chief Justice R.C. Lahoti, C.J., Hon’ble Justice Y.K. Sabharwal, Hon’ble Justice D.M. Dharmadhikari, J.J..

Type of the case: Civil Writ petition filed by the petitioner under Article 32 of the Indian Constitution before the Hon’ble Supreme Court

Parties of the case: Petitioner – Anil Kumar Jha; Respondent – Union of India

Petitioner represented by: Mr. Mukul Rohatgi and Ravi Shankar (Learned Senior Counsel) and Ms Pinky Anand (Assistant advocate)

Respondent represented by: Dr. A.M Singhvi (Learned Senior Counsel) and  Mr.A.K Mathur (Advocate) 

Equivalent citations: 2007(2) SLJ63 (CAT)

Referred laws and provisions: Articles 180,  Article 333 and Article 32 of the Constitution of India

Facts of the case

On March 10, 2005, the session of the Jharkhand Legislative Assembly had been convened, and on March 7 2005, Anil Kumar Jha filed a petition requesting for the urgent consideration of the court. In response to this request, the court scheduled the matter for a hearing on March 9, 2005 at 1:40 pm, ensuring the matter would be addressed promptly, within a short span of time from its initial filing, the only agenda was the floor test to determine the majority support in the Assembly for a nominated member of Anglo-Indian.

In this petition, Anil Kumar Jha, challenged the Governor’s decision to appoint a relatively junior member of the Legislative Assembly as Pro-tem Speaker and argued that this decision deviated from established constitutional norms, which say that the senior most member should be appointed as Pro-tem Speaker. Though this convention to make the appointments on a seniority basis is not explicitly mentioned in the Constitution, it has been established through past precedents and practice and this formed the basis of the petitioner’s challenge.

Furthermore, the petitioner challenged the nomination of an Anglo-Indian community member to the assembly. This nomination was allowed under the Indian community to the state legislative assembly to ensure adequate representation of minority communities like the Inglo-Indians. The challenge raised an important question about the criteria and the process used for such nominations. There was a concern that the executive authority could have potentially misused this power to appoint the members in a way that impacted the legislative representation and governance. 

Issues raised in the case

  1. Whether the appointment made by the Governor of a relatively junior member as the Pro-tem Speaker of the Jharkhand Legislative Assembly violated established constitutional norms?
  2. Whether the Governor exercises his power under Article 333 of the Constitution to nominate an Anglo-Indian member to the Jharkhand Legislative Assembly, on the recommendation of the incumbent Chief Minister, who is the subject of Writ petition of Quo Warranto?

Arguments of the parties

In the present case, the petitioner, Anil Kumar Jha, highlights the concern of utilising the Governor’s constitutional authority in the appointment of a Pro-tem Speaker. The petitioner argued that the Governor’s decision to appoint a junior member was a departure from this traditional practice. 

Another contention by the petitioner was the nomination of an Anglo Indian member in the legislative Assembly which was made at a time when the incumbent Chief Minister was facing a Writ petition of Quo Warranto challenging their right to hold office. The petitioner argued that the nomination could potentially influence the outcome of this legal proceeding and impact the potential dynamics in the assembly. 

The petitioner feared that the nomination of an Anglo-Indian member could disrupt the balance of powers within the assembly, potentially benefiting the incumbent Chief Minister. He highlighted that the floor test was imminent and the nomination of an Anglo-Indian member could disrupt the balance of powers within the assembly, potentially benefiting the incumbent Chief Minister. The petitioner further contended that the Governor’s nomination, made under the current political circumstances, may undermine the integrity of the legislative process and the ongoing legal proceedings and also argued that this nomination raised a significant question about the transparency and fairness of the process of nomination.

Laws discussed in Anil Kumar Jha vs. Union of India (2005)

Article 180(1) of the Constitution of India

Article 180(1) of Indian Constitution empowers the Governor to appoint a Pro-tem Speaker when the Speaker or the Deputy Speaker’s seat is vacant. This ensures the continuity in legislative activities and smooth functioning during such vacant seats. Traditionally, seniority matters, and the senior most member of the house is chosen as the Pro-tem speaker. This practice maintains stability by ensuring that the most experienced and respected member takes charge, thereby minimising disruption and maintaining order in the house.

Article 333 of the Constitution of India

Article 333 of the Indian Constitution empowers the Governor to appoint one Anglo-Indian member to the state legislative assembly, even if they do not have adequate representation through the electoral process alone. This ensures their voice is heard in the legislature.

Article 32 of the Constitution of India

Article 32 of the Indian Constitution empowers an individual to move the Supreme Court directly for the enforcement of their fundamental rights. This basically provides for the right to constitutional remedies that allows individuals to seek justice if they believe their fundamental rights have been violated.

Judgement in Anil Kumar Jha vs. Union of India (2005)

In response to Anil Kumar Jha’s petition in 2005, concerning the appointment of a Pro-tem speaker and the potential nomination of a junior Anglo-Indian Community member to the legislative assembly, the Supreme Court swiftly issued a directive on March 7, 2005. This directive resonated with deep-seated concerns over transparency and accountability governance, urging the Pro-tem speaker to record the video of the proceedings of the Legislative Assembly scheduled on March 11, 2005, and the order copies sent to both the parties, to ensure the transparency. 

The Supreme Court recognised the transparency and fairness of the nomination process. To address these issues, the Supreme Court of India issued the directive to mandate video recordings of the assembly proceedings and stated that this would ensure that there were unbiased records of the legislative activities related to the nomination and prevent any misuse of executive power in appointments that affect the legislative representation of minority communities. 

The Directorate General of Police was directed to ensure all elected members could attend the assembly freely, safely, and securely, without any interference or hindrance. Infact, the proceeding of the test floor was to be confined to the 81 members of the assembly, and this test was video recorded, and finally, a copy of the recording was submitted to the Supreme Court, which demonstrates the fair elections in the assembly.

The Supreme Court’s decision in the Anil Kumar Jha case, highlighted the prompt submission of recordings, which will underscore the judicial proactive role in promoting justice, fairness, accountability, and constitutional adherence within the legislative framework.

The main purpose of  Article 333 is to give an opportunity to represent the Anglo-Indian Community in the assembly but the timing and context of this nomination can cause political controversies. The Court’s decision in the Anil Kumar Jha case, addressed these problems and set the important guidelines for future nomination as per the Article 333, stressing the need for transparency and fairness in the legislative process.

The court acknowledged the concern of a possible political impact on the nomination of Anglo-Indian members, especially in a sensitive political situation that could impact the assembly’s work and the ongoing legal case. This case highlights the concerns related to the representation, political integrity, and role of the minority community in the legislative assembly. In the Anil Kumar Jha case, the court Closely examined the timing and context of the nominations to determine if it was in a good faith or just for political gain. The court emphasised that while Article 333 aims to provide the representation, such nominations must not be used to unfairly influence the balance of power or ongoing legal proceedings. The Court’s examination of the Anil Kumar Jha case serves as an important precedent for ensuring Article 333 nominations are made in the spirit of providing representation without undermining the democratic process

Case referred to in the judgement

The court referred the case of Jagadambika Pal vs. Union of India and Ors. (1998) which exemplifies the important role of the judiciary in resolving critical political disputes in India. This case originated during a very unstable time of Uttar Pradesh politics, where there was a fierce fight over who should be the Chief Minister Jagadambika Pal or Kalyan Singh.  To resolve this issue, the Supreme Court of India stepped in and ordered a special vote in the Uttar Pradesh Legislative Assembly called a floor test, meant to decide which of the two had the most support from the elected officials. In a tense political Atmosphere, the composite floor test saw Kalyan Singh securing 225 votes against Jagadambika pal’s 196. 

This result confines Singh’s legitimacy to the Chief Minister’s position and affirms the adherence to democratic principles and ensures continuity in the State Governance. By this composite floor test, the Supreme court showed its authority as the final decision-maker in issues related to constitutional governance. This case is important not only for the high-stake political conflict but also for showing the judiciary’s role in protecting democratic processes.

Recent cases relating to similar issues of appointing Pro-tem Speaker

In Anil Kumar Jha’s case, the judgement was primarily focused on the fair and transparent election of the pro tem speaker. However, this was not the first time when the appointment of the Pro tem speaker was in issue. For example, in 2018, the issue arose in the Karnataka Legislative Assembly when the Governor Vajubhai Vala appointed MLA K.G. Bopiah as the Pro-tem speaker, using his discretionary power under Article 180(1) of Indian Constitution. This decision was challenged by opposition parties (Congress and JD(S)), who argued that this appointment was unconstitutional and that R.V. Deshpande, being the senior most member, should have been appointed instead. In this scenario, the Supreme Court said that it is not a mandatory provision to appoint the senior most member as Pro-tem speaker. However, the Supreme court’s decision underscored the delicate balance between political conventions and political authority, asserting that while conventions guide practices, they do not override the Governor’s constitutional power.

Similarly, on 20th June 2024, there was a significant buzz about the appointment of  Bhartruhari Mahatab as a Pro tem speaker. President Draupadi Murma appointed a veteran politician from Odisha as a Pro-tem speaker to handle the early stages of the new Lok Sabha. This role was important for managing the complex political situation, as the BJP needed to work with their National Democratic Alliance (NDA) partner and had to manage the demands of the Lok Sabha members on their key positions.  However, the opposition party, especially Congress, protested the appointment of Bharturhari Mahtab and claimed that the BJP had disrespected the parliamentary tradition, Kodikunnil Suresha. Congress claimed that Kodikunnil Suresh, an 8 term MP, was the senior most member and must be appointed instead of Bhartuhari Mahtab. The case was not taken to court and was eventually resolved through political negotiations and the commencement of parliamentary proceedings, still, this point remains a controversial contention between the ruling party and the opposition. Through the parliamentary process, Mahatab played his role very well as a Pro-tem speaker.

While discussing the appointment of a Pro-tem speaker, whether in the case of Anil Kumar Jha, K.G. Bopiah, or Bhartruhari Mahatab several themes emerged. This interplay of constitutional authority and political practice remains one of the fundamental aspects of legislative frameworks, and with judicial intervention, any political dispute can be navigated. 

While the convention favours appointing the senior most member, political consideration and interpretation of “seniority” often influence decisions leading to disputes between the parties. However, there are some exceptions when the nomination was not based on the seniority, still, they were not challenged by the opposition, such as, the Congress MP Balasaheb Vakhle Patil was overlooked the senior most members like PM Atal Bihari Vajpai, George Fernandes and Gridhar Gamang in 2004 but the BJP leaders did not challenge this decisions. Similarly, in 2009 and 2014, Maneka Gandhi and Kamal Nath were appointed as Pro-tem speakers respectively, and even though they were not the senior most members the decision to nominate them was not challenged.

Potential legal challenges arises in using the Governor’s discretionary powers to appoint Pro-tem speakers

Article 180 of the Indian Constitution, ensures the smooth functioning of the assembly even if the Speaker or the Deputy Speaker is not available. However, sometimes using this discretionary power to appoint Pro-tem speakers became a debatable issue. It is a subject of constitutional interpretation and has been the basis for the legal challenges in various instances.

Governor’s discretion is not absolute and is subject to judicial intervention

The Supreme Court, in  Nabam Rebia And Etc. Etc vs Deputy Speaker And Ors  (2016) has clarified that the Governor’s discretionary power is not absolute and emphasised that the Governor can act independently on certain matters but any exercise of discretion must not be arbitrary, but should be based on reason and good faith. 

Additionally, the Supreme Court also held that the action of the Governor can be subject to judicial review under Article 163(2) of the Indian Constitution, especially if the appointment is challenged on the basis of arbitrary, malafide intentions or a lack of application of mind.

Criticism of the Judgement on Intervention of the courts in legislative matters

The court plays an important corrective role, but there is a risk of judicial overreach- when the courts go beyond their authority. Judicial activism is when the court actively intervenes in the interpretation of the law to protect rights, deliver justice, and maintain stability. However, judicial overreach occurs when the court excessively interferes in the domains of the Legislature and Executives. 

Critics argue that the courts sometimes inadvertently interpret the Constitution in such a way that by imposing their personal opinions as legal rules, instead of strictly interpreting existing laws and provisions, this can upset the balance of power between the different organs of the government.  There is a fine line between judicial activism and judicial overreach. The court must maintain the delicate balance of its constitutional authority.

For instance, in the Anil Kumar Jha Case, where the Supreme Court directed the recording of the proceedings, a special session may have violated Article 212, which prevents courts from intervening in internal matters of the state legislature. This also raised concern about the judiciary’s own accountability because, while courts can review executive and legislative actions, only a larger bench or constitutional amendment can address the judicial overreach, and this creates a potential gap in holding the judiciary accountable. 

Furthermore, critics argued that the Article 361 of the constitution provides immunity to the Governor’s decision, made on the advice of the council of ministers, from being challenged in the Court, which shields them from legal challenges in the Court. In the case of Anil Kumar Jha, critics highlighted that constitutional immunity shields executive actions from accountability and legal challenges, potentially undermining the principles of transparency and checks on the executive powers.

Moreover, in the case of M.R. Balaji v State of Tamil Nadu (2008), Madras High Court upheld the Government policy of providing 69% reservation in the educational institutions, which exceeded the 50% ceiling of the Supreme Court in earlier Judgement. This case highlights the debate around the limits of judicial review and the need to maintain the delicate balance between the judiciary, legislature and executive in matters of economic and social policy. The Critics argued that the courts should be more deferential to the elected branches of government in such domains, to prevent judicial overreach and preserve the separation of powers.

Procedural irregularities and legislative proceedings

Procedural irregularities are the deviations or mistakes made while following the established procedures or rules during a particular process. In the context of the Pro-tem speaker, procedural irregularities might include:

  • Established Parliamentary practices
  • Lack of transparency
  • Arbitrary decision makings
  • Inadequate opportunity of representations
  • Non-compliance with legal requirements
  • Biassed or conflict of interest

Opposition can challenge the decision of the appointment of a Pro-tem Speaker if it finds any procedural irregularities, and the court can declare such nominations unconstitutional. These challenges aim to ensure the selection process is transparent and fair.

Analysis of Anil Kumar Jha vs. Union of India (2005)

Cases involving Pro-tem Speaker appointments, such as Anil Kumar Jha, K.G. Bhopiah in 2018, and Bhartuhari Mahtab in 2014, reveal key insights. The Supreme Court has clarified that seniority is an important convention of the parliamentary process but not a constitutional requirement. Similarly, the constitutional provisions allow the Governor/President the authority to appoint anyone of their choice by using discretionary power. These situations in the political process illustrate that while conventions guide expectations, they do not override the constitutional discretions. Simultaneously, the court also emphasised that the arbitrary use of such powers will be counted as unconstitutional. Resolving such issues often needs political negotiations rather than legal interventions. 

The Supreme Court’s intervention in the case of Anil Kumar Jha recognised the role of the guardian of justice and the upholder of democratic values. This case highlights the judiciary’s vital role in safeguarding the principles of democracy, upholding constitutional conventions, and preventing the arbitrary exercise of power by the executive.

The Supreme Court’s Order in the Anil Kumar Jha case highlights the significant debate about the judicial role in democracy and ensures transparency in the proceedings of the Jharkhand Legislative Assembly. This case did not directly influence the appointments of Pro-tem Speakers, as the convention of appointing the senior-most member predates this specific case or the nomination of Anglo Indian Members, but this case is more notable for the Supreme Court’s proactive stance in promoting accountability and adherence to the Constitution within the legislative framework during a political crisis. 

The recent ruling on Pro-tem speaker’s appointments has significant implications for future selections. It grants the Governors greater flexibility in choosing Pro-tem speakers, allowing them to consider other various factors other than the seniority. However, this flexibility allowed for the new doors for legal challenges which can be addressed by judicial intervention and active checks and balances. The ruling reinforces that while political conventions are important, they must be aligned with constitutional principles and fairness.

Conclusion

The judicial intervention in the Anil Kumar Jha case over the appointment of the Pro-tem Speaker and the potential nomination of an Anglo Indian community member to the Legislative Assembly with the belief that these actions might undermine transparency and fairness, Anil Kumar Jha turned to the court for justice. Through this move, the court acknowledged the importance of the issues and ordered video recording of the relevant proceedings, which helped to reinforce the promise that the people’s voice and concerns would be heard and addressed with utmost seriousness and highlights the commitment to transparency, accountability and renewing the faith in the judicial system. 

Frequently Asked Questions (FAQs)

What does Article 180 of the Indian Constitution talks about?

Article 180 of the Indian Constitution, explains the process for managing the duties will be formed in their absence or if their position is vacant.

  • If the seat of Speaker is vacant, the  Deputy speaker will act as the speaker 
  • If the Speaker or Deputy Speaker’s position is vacant, then the Governor can appoint any member from the assembly.

Who can be a Pro-tem Speaker?

As per Article 180 of the Indian Constitution, when the seats of speakers or deputy speakers are vacant, the duties of the speakers should be performed by the member of the Assembly/house who is nominated by the Governor/president and that person may be determined by the rule of procedure of the Assembly.

What is the role of Pro-tem Speakers?

Pro-tem speakers are appointed temporarily to preside over the proceedings, and they enjoy the same powers, privileges, and immunities as the elected speaker until a new speaker is elected. The main responsibility of the Pro-tem speaker is to administer the oath to new members, which is very crucial for maintaining the legitimacy and integrity of the legislative process.

What is democratic accountability?

Democratic accountability refers to the principle that elected officials and public institutions must justify their actions and decisions to the people. This can be achieved through transparency, adherence to the rule of law, regular and fair elections, checks and balances and public participation.

What is a floor test and its purpose?

A floor test, also known as a trust vote, is a crucial parliamentary procedure conducted within legislative bodies (State and National levels). The main purpose of the floor test is to determine whether the ruling government still enjoys the majority support of the house.

The concept of appointment of a Pro-tem speaker is adopted from which country?

The system of appointing a Pro-tem speaker was adopted from the “Father of the House” Convention in the UK’s Westminster system of Parliament, which states that the title is bestowed on the member who has the longest unbroken service in the parliament. This member is responsible for presiding over the house until the speaker is elected.

What criteria are typically considered for the appointment of Pro-tem Speaker?

Article 94 of the Constitution says that as soon as the Lok Sabha is dissolved the seat of the speaker should not be vacated until the first meeting of the newly elected House, thus this provision implies the immediate appointment of the temporary speaker for the smooth functioning of the House/Assembly. However, the Constitution does not mention any specific provision for the term pro-tem speaker. However, the appointment process, roles of Pro-tem speakers, and their duties are discussed in the Handbook of Parliamentary Affairs, and as per this rule book, normally, the senior most member who has spent the maximum number of consecutive terms in the Parliament/Assembly is nominated. Once the new government is formed, the Legislative I section of the Indian government makes the list of senior most members of the house/Assembly. This list is then sent to the Minister of Parliamentary Affairs or the Prime Minister/Chief Minister to serve as Pro-tem speaker and select three additional members for oath-taking.

References 

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