7 legal questions on ‘Pro-tem Speaker’

Appointment of K.G. Bopiah as pro-tem speaker challenged by Opposition as unconstitutional.

The Governor’s decision to appoint BJP MLA K.G. Bopiah as the pro-tem speaker has created a political storm.  The Congress- JDS alliance moved the Supreme Court to strike down his appointment. The Court heard the matter at 10:30 A.M. on 19th May. The Opposition urged that Mr. R.V. Deshpande should be the pro-tem speaker, as he is the senior most MLA.

1)Who is a Pro-tem Speaker?

The Constitution does not expressly use the term ‘Pro-tem Speaker’. Pro-tem Speaker is a temporary speaker appointed for a limited time period to conduct proceedings in Parliament or State legislatures. A pro-tem Speaker is ordinarily elected for the first sitting of a new legislative assembly where the Speaker is yet to be elected.

2)Who can be appointed as pro-tem Speaker?  

The law on pro-tem speaker is laid down under Article 180(1) of the Constitution Article 180(1) of the Constitution provides that when the Speaker or Deputy Speaker positions are vacant, the duties of the Office should be performed by ‘such member of the Assembly as the Governor may appoint for the purpose’.

3)Are there any ‘Rules of Procedure’ laid down for the appointment of pro-tem Speaker?

While there are no specific constitutional or statutory provisions, by constitutional convention the senior most member of the House has to be chosen as pro-tem speaker. Seniority in this context refers to the membership in the House and not the age of the member.

4)What is the scope of Governor’s ‘discretion’ in appointing a pro-tem Speaker?

Under  Article 163(1), there shall be a Council of Ministers with the Chief Minister as the head to aid and advice the Governor, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

In Nabam Rebia (Arunachal Pradesh Case), the court clarified that the discretion of Governor is not ‘absolute’ but a ‘constitutional’ one. So, he can act in his discretion on matters provided in the Constitution. As the Governor is specifically empowered to appoint a pro-tem Speaker under Article 180(1), he may exercise his discretion independently of the aid and advice of the Council of Ministers.

5) Can there be ‘judicial review’ of the Governor’s Discretion?

Under Article 163(2), the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.

In several case laws including S.R. Boomai and Nabam Rebia, the Supreme Court has held that Governor’s discretion can be challenged on the grounds of :(1)arbitrary exercise of power; (2)malafide intention; (3)if order is passed on extraneous or irrelevant considerations; (4)if there has been no application of mind. So the appointment of a pro-tem Speaker is subject to judicial review.

6)What is the scope of authority of a pro-tem Speaker? Does he enjoy substantive powers as Speaker or just procedural powers?  

Under Article 188(1), it appears that a pro-tem Speaker only has the power to administer the oath to Assembly Members. However, under Article 180(1), a pro-tem Speaker may discharge all the powers and functions of the Speaker. Arguably, if a pro-tem Speaker is appointed at the start of a new Assembly, he operates with very limited power under Article 188(1).

However, in Surendra Vassant Sirsat  case, the Bombay High Court held that “the Respondent No. 2 (pro-tem Speaker) is entitled to all rights, privileges and immunities of the Speaker under the Constitution of India, rules of procedure and Conduct of Business framed under Article 208 of the Constitution of India or otherwise on par with that of elected Speaker.”

7) Can there be judicial review of the pro-tem Speaker’s decisions?

Ordinarily, under Article 212(1), courts are barred from reviewing the validity of legislative proceedings on the grounds of “irregularity of procedure”. However, in Raja Ram Pal case, a constitutional bench of the Supreme Court clarified that it may judicially review a Speaker’s decision for illegality.