by Rashmi S. Nikam (4th Year)
In the recent Maharashtra elections, the controversy over the appointment of pro-tem speaker was aroused. However, it is not the first time when the appointment of the pro-tem speaker leads to controversy in Indian politics. In Karnataka also, ignoring the seniority of many other MLAs, four-time BJP MLA KG Bopaiah was made the Pro-tem Speaker.In March 2017, a similar controversy had arisen in Goa when two-term BJP MLA Sidharth Kuncalienkar was appointed Pro-tem Speaker before the floor test. Even then, Congress had protested his appointment as it “flouted” the convention. A similar pattern was seen in Manipur when a less experienced BJP MLA V Hangkhalian was appointed Pro-tem Speaker.
This article attempts to understand provisions and conventions related to the appointment of the pro-tem speaker.
WHEN IS THE APPOINTMENT OF PRO-TEM SPEAKER MADE?
When the offices of both the Speaker and the Deputy Speaker fall vacant, the duties of the Office of the Speaker are performed by such member of Lok Sabha as the President may appoint for the purpose. The person so appointed is known as the Speaker pro tem and this nomenclature distinguishes him from the Speaker elected by the House. After his appointment, the Speaker pro tem continues in office till the Speaker is chosen.
Similarly, Article 180 (1) of the Constitution gives the Governor the power to appoint a pro-tem Speaker. The article says that if the chair of the Speaker falls vacant and there is no Deputy Speaker to fill the position, the duties of the office shall be performed “by such member of the Assembly as the Governor may appoint for the purpose”. Before being a member of the legislative assembly, the elected candidate has to subscribe or take an oath before His Excellency, Governor.
After the General Elections, the Speaker pro tem is appointed to administer oath/affirmation to the newly elected members of Lok Sabha and conduct the election of the Speaker. He vacates Office soon after the Speaker is chosen by the House. The Speaker pro tem takes oath as a member of Lok Sabha before the President in Rashtrapati Bhavan at the earliest available opportunity and in any case before he actually takes the Chair to conduct the proceedings of the House. He signs the Roll of Members immediately on taking the Chair in the House which signifies his taking seat in the House. The Speaker pro tem has all the powers of the Speaker under the Constitution, Rules of Procedure or otherwise. He, however, functions only till the House elects the Speaker. similar to the Central government, the state government is also of the parliamentary type and closely follows the model of the Central Government. Governor is the head of the executive along with the chief minister and council of Ministers. All executive action of the state government is expressed to be taken in the name of the Governor as per Art.166(1).
The name of a member to be appointed as Speaker pro tem is suggested by the Prime Minister, who, in his discretion may place the matter before the Cabinet. Normally, the senior-most member of the Lok Sabha is chosen for the appointment, as the Speaker pro tem, and orders of the President for such appointment, as per practice so far followed after each General Election, are taken by the Ministry of Parliamentary Affairs and forwarded to Lok Sabha Secretariat for notification. In regard to this, Dr. B. R. Ambedkar in Constitution Assembly Debate opined that
“There are certain, what I may call, ceremonies that have to be gone through before a duly elected candidate can be said to have become a Member of Parliament. One such thing which he has to undergo is the taking of the oath. He must first take the oath before he can take his seat in the House. Unless and until he takes the oath he is not a member and so long as he is not a member, he is not entitled to take a seat in the House. That is the provision. Unless candidates take their oath and take their seats they do not become members and they do not become entitled to elect the Speaker. That is the sequence of events,- election, taking of the oath, becoming a member and then becoming entitled to the election of the Speaker. Therefore the election of the Speaker must be preceded by the taking of the oath. Therefore the authority to administer the oath must necessarily be vested in some person other than the Speaker. That being the position the question is in whom this power to administer the oath shall be vested. Obviously it can be vested only in the President or in some other person to whom the President may transfer his authority in this behalf.”
SUPREME COURT ON PRO-TEM SPEAKER:
In Anil Kumar Jha V. Union Of India, directions were passed by Hon’ble Supreme Court which include: “(4) the result of the floor test would be announced by the pro tem speaker faithfully and truthfully.” Similarly, in Dr.G. Parmeshwara v. Union of India, the Hon’ble Supreme Court directed appointment of pro-tem speaker for the administration of oath to members of the legislative assembly and for conducting floor test when controversy arises in the state of Karnataka. Again, in Shiv Sena v. Union of India, the Hon’ble Supreme Court issued directions to appoint a pro-tem speaker to administer the oath to elected members.
CONVENTIONS IN DEMOCRACY:
The Constitution of the country consists of both ‘legal’ as well as ‘non-legal’ norms. ‘Legal’ norms are enforced and applied by the courts and if any such norms are violated, courts can give relief and redress. ‘Non-legal’ norms arise in the course of the time as a result of practices followed over and over again. Such norms are known as conventions, usage, customs, and practices of the constitution. There may be nothing in the Constitution sanctioning them, nevertheless, they exist. Sir Ivor Jennings: “ Thus within the framework of the law there is room for the development of the rules of practices, rules which may be followed as consistently as the rules of law which determine the procedure which the men concerned with Government Follows”
The sanction behind conventions is mostly political or public opinion. As Ahmadi, C.J. has observed about the growth of convention: “Convention grow from long-standing accepted practice or by agreement in areas where the law is silent and such convention would not breach of law but the fill the gap.” In India, conventions operate in several areas, the most significant of which is the relationship between the executive and the legislature. In several cases like U.N. R.Rao v. Indira Gandhi, Samsher Singh v. State of Punjab, the decision of the Supreme Court is influenced by constitutional conventions.
the author is pursuing B.L.S., LL.B from Advocate Balasaheb Apte College of Law, Mumbai University.
Art. 95(1) of the Constitution of India.
 Practice and procedure of Parliament, 7th edition, page no. 117.
 Practice and procedure of Parliament, 7th edition, page no. 118
S.L. Shakdher: “Appointment of Speaker of Lok Sabha”, J.P.I. Vol. II, No. l, April 1956.
 M.P.Jain, Indian Constitutional Law, page no.303.
 supra at 4.
Constituent Assembly Debates On 19 May 1949 Part I, Volume VIII
 (2005) 3 SCC 150
 (2018) 16 SCC 46
Writ Petition (Civil) No. 1393 Of 2019
 M.P.Jain, Indian Constitutional Law, page no. 3
 W.I Jennings, Law and Constitution
 S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272, 279
 AIR 1971 SC 1002
 AIR 1974 SC 2192