Context: Recently, the Supreme Court emphasised that the court is “not powerless” if a Speaker chooses to remain “indecisive” on disqualification petitions under the Tenth Schedule. The Court may frame directives as a ‘request’ for a timely action. However, if ignored, the court can invoke Article 142 (extraordinary powers) to enforce compliance.
Relevance of the topic:
Prelims: Anti-defection law; Speaker’s Role in ADL.
Mains: Partisan role of Speaker in deciding the question of disqualification.
Anti-Defection Law (ADL)
- Introduced by the 52nd Constitutional Amendment Act, 1985.
- Aim: To curb political instability caused by elected representatives switching parties for personal gains.
Disqualification on grounds of defection:
- A legislator belonging to a political party will be disqualified if he:
- Voluntarily gives up his party membership.
- Votes/abstains to vote in the House contrary to the direction issued by his political party. A member is not disqualified if he has taken prior permission of his party, or if the voting or abstention is condoned by the party within 15 days.
- Independent members will be disqualified, if they join a political party after getting elected to the House.
- Nominated members will be disqualified, if they join any political party six months after getting nominated.
- Exemptions: Members are exempted from disqualification when at least two-thirds of the original political party merges with another political party.
Decision Making Authority:
- The decision to disqualify a member from the House rests with the presiding officer of the House (Speaker in Lok Sabha / Chairman in Rajya Sabha). They act as quasi-judicial tribunals under the anti-defection law.
- There is no time limit for the presiding officer to decide such a case.
- Originally, the act provided that the decision of the presiding officer is final, and cannot be questioned in any court.
- In the Kihoto Hollohan case (1993), the SC held that the presiding officer, while deciding a question under the Tenth Schedule, functioned as a tribunal. Hence, his decision (like that of any other tribunal) is subject to judicial review on the grounds of mala fides, perversity, etc.
Challenges Associated
Absence of a fixed timeframe for Speakers poses several challenges:
- The Anti-Defection Law (1985) was meant to prevent instability caused by party-switching. Delaying decisions goes against the spirit of the law, allowing defectors to enjoy full terms in office.
- Undermines democratic mandate: Delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
- Encourages political opportunism and horse trading, due to lack of immediate action. E.g., Maharashtra (2022), defections were allowed to stand for months before a decision was made.
- Unfair delays favour ruling parties, as Speakers often belong to the government’s party. Opposition’s strength in legislatures gets artificially reduced.
- Erodes the trust in democratic institutions, when the Speaker fails to act impartially.
Way Forward
- Dinesh Goswami Committee (1990): Disqualification under ADL should be decided by a neutral authority, such as the President/Governor or by the Election Commission.
- The law commission has recommended the removal of Exemption for merger.
- The SC has urged Speakers to decide anti-defection pleas within a “reasonable time”. However, the court had not specified the reasonable time.
The SC should set a fixed timeline for the Speaker to decide on the question of disqualification under ADL. The lack of a reasonable time restriction weakens democracy, promotes political opportunism, and reduces public faith in the system.