Anti-Defection Law & The Role of Speaker – Explained Pointwise

The Tenth Schedule of the Indian Constitution, also known as the Anti-Defection Law, was inserted by the 52nd Constitutional Amendment Act, 1985, to curb the growing menace of political defections which destabilized governments in the post-1967 era. However, in recent years, the issue has once again taken center stage due to partisan actions by Legislative Speakers, resulting in erosion of democratic values and legal safeguards. 
Recently, the Telangana Legislative Assembly’s Speaker dismissed the petition to disqualify 10 MLAs who have allegedly defected after the 2023 Legislative Assembly election results. His actions have been criticized by the members of the opposition parties of the State as being unilateral & biased.

What is the Tenth Schedule?

• The 10th Schedule of the Constitution, also known as Anti-Defection Law, addresses disqualification of MPs and MLAs for defection, a response to the political instability of the late 1960s when “party-hopping MLAs” toppled multiple state governments.
• Under the 10th Schedule, a member of either Parliament (MPs) or a State Legislature (MLAs/MLCs) can be disqualified if:
  1. Voluntary Resignation: They voluntarily give up their membership of the political party on whose ticket they were elected.
  2. Defying the Whip: They vote or abstain from voting in the House contrary to the directions (the “whip”) issued by their political party without prior permission.
  3. Independent Members: An independent candidate joins any political party after being elected.
  4. Nominated Members: A nominated member joins a political party after six months from the date they took their seat.
• Exceptions:
  1. Merger: If at least two-thirds of the members of a legislative party agree to merge with another party, they are not disqualified.
  2. Presiding Officers: A person elected as the Speaker or Chairman can resign from their party to maintain neutrality and can rejoin it after they leave the office without facing disqualification.
• Deciding Authority: The power to decide on disqualification rests with the Presiding Officer of the House (the Speaker in the Lok Sabha/Assemblies and the Chairman in the Rajya Sabha/Councils).
• Judicial Review: Originally, the law stated the Presiding Officer’s decision was final and could not be challenged in court. However, in the Kihoto Hollohan case (1992), the Supreme Court ruled that the Speaker acts as a tribunal, meaning their decision is subject to judicial review by High Courts and the Supreme Court.
• The 91st Amendment (2003):
  • Removed the “Split” provision: Previously, a “split” by one-third of a party’s members was protected. This was removed to prevent mass defections.
  • Ministerial Limit: It capped the total number of ministers (including the PM/CM) at 15% of the total strength of the Lok Sabha or State Assembly.
  • Holding Office: A member disqualified under the 10th Schedule cannot hold any remunerative political post or ministerial position until they are re-elected.

Evolution of Defection Law

What is the Significance and Importance of an Independent and Neutral Speaker?

1. Guardianship of Legislative Integrity: The Speaker is expected to promote institutional neutrality, rule of law and to act as a quasi-judicial authority under the Tenth Schedule, but when partisanship takes precedence, it jeopardizes constitutional morality e.g. The 2020 Arunachal Pradesh defection case Supreme Court reiterated, “neutrality of the Speaker is critical to democratic stability”.
2. Timely Adjudication and Trust in Institutions: The 2023 Constitution Bench in Keisham Meghachandra Singh v. Speaker Manipur reiterated that delays in disqualification proceedings violate the spirit of democracy.
3. Check on Political Horse-trading: The absence of an impartial Speaker allows post-election defections to the ruling party, as seen in Karnataka (2019) and Goa (2017).
4. Constitutional Expectation: The Speaker is expected to embody “propriety and impartiality,” as noted by a five-judge Constitution Bench in May 2023, ensuring the Tenth Schedule’s objective – to stabilize governments – is upheld.
5. Judicial Perspective: Erstwhile SC justice Gavai’s observation that a speaker’s “indecision” cannot defeat the anti-defection law’s purpose emphasizes the need for neutrality. The Supreme Court’s invocation of Article 142 powers in cases of non-compliance further reinforces this.

What are the government Initiatives and institutional Developments?

1. All India Presiding Officers Conference (2021-2023): Discussed reforms in Speaker’s powers under the anti-defection law. Multiple officers expressed that “Speakers’ roles must be reviewed”.
2. 91st Constitutional Amendment Act, 2003: Made merger provisions more stringent by raising the requirement to two-thirds of members for party mergers.
3. Supreme Court’s Role as Constitutional Guardian: Article 142 has been invoked to “ensure justice is not defeated by technicality or partisan silence” – SC has directed Speakers in Maharashtra, Karnataka, and Telangana to act within a “reasonable time frame.”

What are the challenges to the Autonomy and Integrity of Speaker’s Role?

1. Structural Partisanship & Political Capture: Speakers are elected by ruling parties and often act in a politically motivated manner e.g. Maharashtra defection case (2022) where delay benefited defectors who joined the ruling coalition.
2. Procedural Vacuum & Legal Ambiguity: The Tenth Schedule is silent on timelines for deciding petitions. Exceptions include a “merger” where at least two-thirds of a party’s members agree, as amended by the 91st Constitutional Amendment Act, 2003 (up from one-third in 1985).
3. Limited Jurisdiction & Constitutional Boundaries: Courts cannot dictate the decision of the Speaker but can only ensure timely adjudication, limiting judicial recourse.
4. Legal Ambiguities: No definition of voluntary giving up membership and Whip’s authority vs. conscience vote conflicts e.g. Average 2.3 years for disqualification decisions (ADR 2022 study), 68% cases decided after MLA’s term ended (PRS 2023).
5. Misuse of Delay to Influence Governance: Defectors are inducted as Ministers or enjoy influence before eventual disqualification e.g. Defecting MLAs get ministerial posts in 71% cases (CMS 2021 study), only 12% of defectors lost subsequent elections (Trivedi Centre 2023).
6. Democratic Fatigue & Electoral Cynicism: Frequent defections with impunity undermine public faith in electoral processes.
7. Institutional Opacity & Role Ambiguity: No penalties or disciplinary procedures exist for Speakers who delay decisions.

What should be the Way Forward?

1. Independent Tribunal Mechanism: Establish a neutral tribunal headed by retired judges to decide disqualification pleas, as recommended by Law Commission and NCRWC.
2. Statutory Timeline for Decision: Amend the law to provide a maximum of 60 days to decide defection cases.
3. Code of Conduct for Presiding Officers: Create binding norms and codes for neutrality and accountability.
4. Constitutional Remedy & Democratic Safeguard: Allow courts to intervene if decisions are unduly delayed, using Article 142 for enforcing timelines.
5. Public Accountability and Electoral Penalty: Launch civic education campaigns and promote electoral punishment for defectors.
6. Strengthening Intra-Party Democracy: Empower parties to uphold ideological integrity and reduce dependence on post-election deals.
7. Global Best Practices:
   • In UK and Canada, Speakers are strictly non-partisan and elected by a secret ballot across party lines.
   • In South Africa, a Judicial Commission handles defection matters, not the Speaker.
8. Committees Recommendations:
   • The Dinesh Goswami Committee (1990) and Law Commission’s 170th Report (1999) recommended divesting the Speaker of adjudicatory powers under the Tenth Schedule.
   • NITI Aayog and National Commission to Review the Working of the Constitution (NCRWC) have advocated for setting up an independent tribunal headed by a retired judge.

Conclusion: In the words of SC, “It is about time that the Parliament review its expectation that the Assembly Speakers & Chairmen will live up to the dignity of their high office & crush the evil of political defection by deciding disqualification proceedings against legislators in time & without favour”.