The Anti-Defection Law, contained in the 10th Schedule of the Constitution, has been the subject of recent scrutiny by India’s Supreme Court. The case revolved around whether a legislative speaker facing removal could disqualify MLAs in his assembly, with the court ruling on February 15, 2023, that Speakers should be the first authority to decide on disqualification.
This decision followed a 2016 ruling in the Nabam Rebia case, where the Supreme Court held that a Speaker or Deputy Speaker facing a notice of removal cannot decide disqualification proceedings against legislators.
Debates over Discretion of the Speaker’s Role
The role of legislative speakers has been under review for the past three years at the All India Presiding Officer’s Conference chaired by the Lok Sabha Speaker. The focus is on securing the speaker’s dignity concerning disqualification matters under the 10th Schedule.
Some presiding officers believe their role should be limited and that other mechanisms must evolve to handle defection cases. One proposal suggests leaving disqualification issues to respective political parties.
Concerns about loopholes impacting the speaker’s role were voiced during a 2021 Speaker’s Conference in Dehradun.
Understanding the 10th Schedule of Indian Constitution
The 10th Schedule, added by the 52nd Amendment in 1985, is also known as the Anti-Defection Law. It sought to curb the practice of party-hopping MLAs that led to the toppling of several state governments after the general elections of 1967.
This law outlines provisions for disqualifying MPs and State Legislatures on grounds of defection. Notably, it does not penalise political parties for encouraging or receiving defecting legislators.
Initially, the Act allowed for a “merger” when one-third of a party’s elected members defected. The 91st Constitutional Amendment Act, 2003, modified this to require at least two-thirds of party members favouring a “merger”.
Discretion and Judicial Review
The law entrusts the Speaker or the House Chairman with deciding on disqualification ground cases, subject to ‘Judicial review’. The law, however, does not specify a timeframe for the presiding officer to decide a defection case.
Grounds for Defection
An elected member can face disqualification for the following reasons: if they voluntarily relinquish their political party membership, vote or abstain from voting contrary to party directions, any independently elected member joining a political party, or a nominated member joining a political party after six months.
Importance of Speaker’s Role in Defection Cases
The Speaker’s role in defection cases is essential for upholding government stability and democratic integrity. The Speaker must act justly and impartially, with decisions guided by natural justice principles and Constitution provisions.
Past Question on Anti-Defection Law in UPSC Civil Services Examination
In the 2014 examination, the question was: “Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection?” The answer was the Tenth Schedule.