Vacant Constitutional Posts - Whether Healthy In A Democracy?

Any Constitution, however vibrant, does not function by itself. Those responsible to make it work do so by their actions. In the same way, no constitution fails by itself. It fails only when those tasked with making it work neglect to do so.

The Constitution of India is a document which 'We the people of India' adopted on 26.11.1949 and came into force on 26.1.1950. Every word in the Constitution must be given effect to and the Articles of the Constitution are not meant to be superfluous. This article examines the issue of non-appointment of Deputy Speaker to the 17^th Lok Sabha even though almost half of the tenure is over. The article also examines the issue of non-functioning of the Law Commission as well as the issue of huge vacancies in various High Courts and Tribunals.

Articles 93 to 97 of the Constitution of India deals with the office of the Speaker and the Deputy Speaker of the Lok Sabha. Article 93 states that the Lok Sabha shall "as soon as maybe" choose one Member as the Speaker and another Member as the Deputy Speaker. Article 94 deals with the vacation of office, resignation and removal of the Speaker and Deputy Speaker. Article 95 specifically states that while the office of Speaker is vacant the duties of the Speaker shall be performed by the Deputy Speaker. A perusal of the aforesaid Articles makes it clear that the post of Deputy Speaker is a constitutional post and the Constitution mandates that the Deputy Speaker is appointed by the Lok Sabha "as soon as maybe". The said expression, though doesn't stipulate a specific time frame, a reasonable interpretation would be that the Speaker and the Deputy Speaker should be appointed immediately after the constitution of the Lok Sabha. The expression 'as soon as may be' is used in the same sentence in Article 93 while referring to the Speaker and Deputy Speaker. Therefore, the same time frame must be applicable for appointing both the Speaker and the Deputy Speaker. Appoint Speaker immediately whereas appoint Deputy Speaker whenever convenient can never be the interpretation!

Article 94(2) states that if the Speaker has to resign, he must tender the resignation letter to the Deputy Speaker. In fact, when Article 94 was being debated in the Constituent Assembly on 19.05.1949, Shri HV Kamath sought to make an amendment stating that it will be far better if the Speaker addresses his resignation letter to the President of India and not to the Deputy Speaker because the Deputy Speaker holds an office subordinate to the Speaker. The said amendment was supported by Shri. Tajamul Husain, who was of the view that sending the resignation letter to the President by the Speaker would be better for the dignity of the House. However, the said amendment was objected to by Professor Shibban Lal Saxena, who was of the view that the Speaker and Deputy Speaker should be completely independent of the Executive and therefore mandating the Speaker to send the resignation letter to the Deputy Speaker is only with a view to give effect to the very healthy principle that the Speaker and the Deputy Speaker should be completely independent of the executive. Dr. B. R. Ambedkar opposed the amendment and was of the view that the Speaker and the Deputy Speaker are appointed by the Lok Sabha and therefore if they want to resign, they must tender their resignations to the House, which is the appointing authority, and since the House is the collective body, instead of the Speaker tendering a resignation letter to each Member of the House, he should address it to the Deputy Speaker as a representative of the House. He was also of the firm view that requiring the Speaker to tender the resignation letter to the President would be incongruous to the independence of the Lok Sabha.

The purpose of mentioning the Constitution Assembly Debates is only to emphasize the importance given to the post of Deputy Speaker by the framers of the Constitution. It is not a mere ceremonial post. If the office of Speaker becomes vacant, it is the Deputy Speaker who must perform the functions of the Speaker. If any resolution for the removal of the Speaker is moved in the Lok Sabha, it is the Deputy Speaker who has to preside over the Lok Sabha and conduct the proceedings.

The first 16 Lok Sabhas of independent India have all appointed Deputy Speakers without much delay and shortly after the appointment of the Speaker. The first session of the 17^th Lok Sabha commenced on 19^th June 2019 and the present Speaker Shri Om Birla was appointed within three days thereafter. The 17^th Lok Sabha is reaching its half term and it has functioned till now without a Deputy Speaker. It is difficult to fathom the reason why such an important constitutional post has been kept vacant for more than two years. By not appointing a Deputy Speaker, the expression 'as soon as may be' in Article 93 is being changed to as late as possible! Leaving an important constitutional post like the Deputy Speaker of Lok Sabha vacant for such a long time gives the impression that the Lok Sabha can function even without adhering to the mandate of the Constitution, which is not at all healthy in a democracy. Non-appointment of the Deputy Speaker for more than 2 years is a clear violation of Article 93 of the Constitution. It is a strange situation where the Lok Sabha itself is violating the Constitution. One can only hope that this is an aberration and steps are taken at the earliest to appoint a Deputy Speaker to the Lok Sabha.

Same is the situation with the Law Commission of India. During the British Rule, the first Law Commission was constituted in 1834 based on whose recommendations the Indian Penal Code was enacted, which continue to be applicable. The first Law Commission of independent India was established in the year 1955, for a three-year term with Mr. M.C. Setalvad, the then-Attorney General for India, as its Chairman. Thereafter, twenty more Law Commissions have been appointed. The 21^st Law Commission was constituted with effect from 01.09.2015, for a three-year term that ended on 31.08.2018. The 21^st Law Commission during its tenure had come out with discussion papers on sedition laws, uniform civil code and simultaneous elections to Lok Sabha and State Assemblies.

By a gazette notification dated 21.02.2020, which is almost one and a half years after the expiry of the term of the 21^st Law Commission, the sanction of the President was accorded for the constitution of the 22^nd Law Commission of India. However, inexplicably, despite sanction having been accorded by the President on 21.2.2020, the Chairman and the Members of the 22^nd Law Commission have not yet been appointed. The importance of Law Commission in our legal system cannot be overstated. Many laws have been enacted, many amendments have been made to existing laws and many obsolete laws have been repealed based on the recommendations of the Law Commission. In such a scenario the fact that there has been no Law Commission functioning in the country from 31.08.2018 has to be viewed very seriously.

The numerous Tribunals which have been constituted under various statutes are in a similar state. As observed by the Hon'ble Supreme Court recently, many of these Tribunals are dysfunctional due to  lack of appointments. In fact, the Supreme Court has been passing judgements, one after the other, to streamline the functioning of the Tribunals. However, instead of complying with the judgements, new laws are being passed which contain provisions identical to the provisions declared unconstitutional by the Supreme Court. Jurisdictions are being taken away from the High Courts and are being vested in these Tribunals. Having done that, it is important that the government ensures that these Tribunals function efficiently. Otherwise, it will have a cascading effect on the judicial system.

Last but not the least, appointments to various High Courts have also been moving at a shoddy pace despite the recommendations of the Collegium of the Supreme Court. In many cases, the government has been sitting on recommendations made by the Collegium for a considerably long period of time, sometimes even after the recommendation has been reiterated. With a huge pendency and backlog, which the government itself often laments about, the least that can be done by the government is to act on the recommendations of the Collegium and appoint judges to various High Courts without any delay. Recently the recommendations of the Collegium for the appointment of 9 judges to the Hon'ble Supreme Court was cleared by the government within a short span of time. One can only hope that the same alacrity will be shown by the government even with respect to recommendations of the Collegium for the appointment of judges to various High Courts.

When carefully crafted constitutional provisions and laws are neglected, it is democracy itself that suffers. It is the responsibility of the government to ensure that such negligence does not occur.

Author is a practicing lawyer at the Supreme Court of India

Views are personal.

Note: The original Malayalam version of this Article by the author was published in the Malayala Manorama newspaper on 20.09.2021