The Constitutional Importance Of Election Of The Lok Sabaha Deputy Speaker (Part-I)

-Griffith and Ryle, Parliament (1989), pp. 145-146

The aforementioned phrase is equally applicable to the office of the Deputy Speaker. According to Article 95 (1), it is the Deputy Speaker who performs the duties of the Speaker when the office of the speaker is vacant. It is the Speaker's business to address the sovereign in the name of the House, when occasion requires; and during his absence except when he is represented by his deputy, no business can be transacted by the House nor any question moved but that of adjournment.

It is the first time in the history of Indian republic that the office of Deputy speaker has been vacant for almost two years (as of May, 2021). It is a parliamentary convention in India that the Deputy Speaker is elected from the opposition parties (there have been fifteen Deputy Speakers in India since independence, almost all of them from opposition parties). This has led opposition parties to raise doubts over the integrity of the ruling party and Speaker of the House of the People. Vacancy in the office of the Deputy Speaker is an anathema to the principles of democracy.

The entire controversy gives rise to certain substantial questions of law. One of which is: Whether is it mandatory on the part of the House of the People to elect the Deputy Speaker in light of Article 93 of the Constitution of India? OR, Whether the Constitution of India provides any discretion to the House of the People to not to elect any the Deputy Speaker?

Article 93 of the Constitution of India provides that the House of the People shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall choose another member to be Speaker or Deputy Speaker.

The elaborate procedure for the election is provided under Rule 8 of the Rules of Procedure and Conduct of Business in Lok Sabha. It provides that the election of a Deputy Speaker shall be held on such date as the Speaker may fix, and the Secretary-General shall send to every member notice of this date. It becomes clear here that the first duty to start the procedure for election of Deputy Speaker is casted on the Speaker himself. Until, the Speaker issues the notice, procedure for election, cannot be initiated. However, said Rule 8 also does not make it clear whether it is mandatory to elect the Deputy Speaker.

One may argue that since Article 93 uses the expression "Shall", thus, it is mandatory to elect the Deputy Speaker. However, it is not necessary that usage of the expression "shall" by any provision always makes it mandatory. The Hon'ble Supreme Court in the case of State of U. P. v. Manbodhan lal, 1957 AIR 912, at Page Nos. 917-918 analysed the usage of the expression "shall" in the provisions of the Constitution and held that:

"…the use of the word " shall " in a statute, though generally taken in a mandatory sense, does -not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid… The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other....'

Further, in State of U.P. v. Babu Ram Upadhya, 1961 AIR 751(at Page 765 of AIR) the Hon'ble Supreme Court held thus:

"29. The relevant rules of interpretation may be briefly stated thus : when a statute uses the word "shall" prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions, whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and above all whether the object of the legislation will be defeated or furthered,"

Thus, the usage of the expression "shall" under Article 93 will have to be interpreted by the intent of the framers, its nature, design and purpose.

The eminent Jurist D.D. Basu in his Commentary on the Constitution of India, Volume 8 at Page No. 8207 summarised the functions of the Deputy Speaker in the following words:

"The Deputy Speaker functions as an ordinary member and has no function to discharge by virtue of his office unless any of the following contingencies happens:

Office of the Speaker failing vacant in any of the ways specified in Article 94- In such a case, the Deputy Speaker performs the duties of the office of the speaker. [Article 95 (1)].

• Absence if the Speaker from any sitting of the House. – In this case, he acts as the Speaker so far as that sitting is concerned [Article 95 (2)]. This applies also to temporarily absence of the speaker from parts of a sitting..

• While any resolution for the removal of the speaker [Article 94 (c)] is under consideration by the House, the Deputy Speaker shall preside. [Article 96 (1)]."

There is, however, a difference between Cls. (1) and (2) of Article 95. When the Deputy Speaker or other member merely acts as Speaker under Cl. (2), he can only exercise those powers which the speaker possesses as presiding officer of the House, but cannot exercise any power specifically vested in the Speaker by the Constitution, e.g. that of certifying a Bill as Money Bill [Art. 110 (4)]. But such power can be exercised when the Speaker's office is vacant and the Deputy Speaker or other member is performing his duties under Cl. (1).

There are few instances where the office of Deputy Speaker becomes a necessity and his functions cannot be replaced by any other person. First instance can be emanated from the recent incident, when the present Lok Sabha Speaker Shri Om Birla got infected by Covid-19. Since the office of the Deputy Speaker was vacant when this happened, it was decided that the said Speaker in consultation with the government and the opposition was likely to appoint a Member of Parliament from among the panel of presiding officers to chair the House proceeding. The question is whether any such appointment will be valid under the Constitution? In other words, whether a member of the Panel of chairmen can preside over the House when the Speaker is 'absent' from sitting and the office of the Deputy Speaker is 'vacant'?

A similar question arose in the UP. Vidhan Sabha as provided under Commentary on the Constitution of India, Volume 8 at Page No. 8209 by D.D. Basu, as to whether Clause (2) of Article 180 which corresponds to Clause (2) of Article 95, may apply when the office of the Deputy Speaker is 'vacant'.

It is submitted that the answer should be in the negative , because –

• According to the rules of statutory interpretation, since two different words 'vacant' and 'absent', occur in two clauses of the same Article (95 or 180) they cannot be interpreted to refer to the same 'absent'.

• The word 'absent' implies that there is holder of the office, who is not physically present in a sitting. When there is no Deputy Speaker at all, how can it be said that the Deputy Speaker is 'absent'?

• That the word 'absent' is used in a sense other than absence owing to vacancy will apparent if we refer to other articles, such as Article 65.

The above interpretation does not lead to the result that there shall be no sitting of the House in such a contingency, until a Deputy Speaker is duly elected, but that the Speaker himself shall have to preside at any sitting that may take place during the intervening period, or to adjourn the House when he is unable to remain present. The only remedy to avoid this is to elect the Deputy Speaker immediately after the election of the speaker is held or immediately after the vacancy in the office of the Deputy Speaker takes place. It was ruled in the Legislative Assembly (1938) L.A. Deb. Volume V, P. 1583 to 86 that the word 'absence' means physical absence from the House.

Second instance of the necessity for the election of Deputy Speaker arise from Clause(a)-(c) of Article 94. As the office of the Deputy Speaker is 'vacant', no resignation can be addressed by the Speaker to the 'Deputy Speaker' under the present clause until a Deputy Speaker is elected under Art. 93. The Speaker cannot, in such circumstances, tender his resignation to the House itself, because the conditions of vacation of the office having been codified in Article 94. To whom will the Speaker tender his resignation in case the Deputy Speaker's office is vacant? It is submitted that the speaker cannot resign his office until the election of the Deputy Speaker. Thus, in order to give effect to Article 94, the election of the Deputy Speaker is a must.

Third instance of the necessity for the election of Deputy Speaker arises from the nature of Article 93 in that it provides for election to a Constitutional Office. There are many other articles in the Constitution of India, which provide for the appointment or election of a Constitutional office/post. For example, Article 52 read with Article 54 provides that there shall be a President of India and he shall be elected by the members of an electoral college consisting of the elected members of the both the house of Parliament and Legislative Assemblies of States. Article 63 provides that there shall be a Vice-President of India. Article 76 provides that the President shall appoint the Attorney General for India. Article 124 provides that there shall be Supreme Court of India consisting of a Chief Justice of India and other judges. Article 148 provides that there shall be Comptroller and Auditor-General of India etc.

Is it, then, within the discretion of the members of an electoral college to not elect the President? Whether it is the discretion of the members of both Houses of Parliament to not to elect the Vice-President of India? Whether it is the discretion of the President of India to not to appoint the Attorney General for India? Whether it is discretion of the President to not to appoint the Chief Justice of India? Whether it is the discretion of the President of India to not to appoint the Comptroller and Auditor-General of India? The answer is "No".

The Constitution of India does not give any discretion to any authority to not appoint or elect Constitutional office/post, if their appointment or election is mandated by the Constitution. It is to be remembered that all the organs, offices or posts enumerated under the Constitution of India are tied in one golden thread, and they are bound to perform their duty. If it fails, it is not only one authority, office or post which fails but also the complete thread of the Constitution of India.

The questions now which remain for careful consideration are how long this important constitutional post can be vacant? What is the limitation period within which the election of the Deputy Speaker should be conducted? Whether the delay in electing the Deputy Speaker also debars the House of the People from electing him for the remaining period?

Views are personal.

The Author is an Advocate at the Supreme Court of India.