Supreme Court on Anti-Defection Law

The Supreme Court has granted the Telangana Assembly Speaker a final opportunity to decide pending disqualification petitions against BRS MLAs accused of defection after shifting allegiance to the ruling Congress.

Case Background

• Defection Petitions: Disqualification pleas were filed against 10 Bharat Rashtra Samiti (BRS) legislators who faced defection charges after joining the ruling Congress party in Telangana.
• Petitions remain undecided against the last two MLAs, while decisions have already been taken in the other cases.

Supreme Court’s Observations on Speaker’s Role

• No Constitutional Immunity: The Court reiterated that the Speaker “does not enjoy Constitutional immunity while acting as a tribunal under the Tenth Schedule.”
• Against Delaying Tactics: The Court stressed that the Speaker’s office cannot sit over disqualification petitions until they “die a natural death” near the end of the House term.

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Supreme Court’s Directions

• Final Time Limit: The court gave the Speaker three weeks to “positively decide” the petitions against the remaining two legislators.
• Contempt Warning: The Court cautioned that delay beyond the deadline would amount to contempt, as the Speaker acts as a quasi-judicial tribunal under the Tenth Schedule.

Key Provisions of the Anti-Defection Law (Tenth Schedule)

• Constitutional Basis: The Anti-Defection Law, added via the 52nd Amendment act of 1985 , operates through Articles 102(2) and 191(2) and provides for the disqualification of legislators on the ground of defection.
• Disqualification Criteria: A legislator belonging to a political party is disqualified if:
  • Voluntarily gives up membership of the political party
  • Votes or abstains against the party whip in the House without prior permission
  • Exception with Party Approval: A member is not disqualified if he has taken prior permission from the party, or if the party condones the act of voting or abstention within 15 days.
  • Nominated Member: A nominated member is disqualified if they join any political party after six months from the date of taking their seat in the House.
  • Independent Member: An independent member is disqualified if they join any political party after being elected.

• Exceptions to Disqualification:
  • Merger-Based Exemption: Members are exempted from disqualification when at least two-thirds of the legislators of the original political party agree to merge with another party
  • Presiding Officer: A member is not disqualified if
    • They resign from their party after being elected as the Speaker/Chairman
    • They may also rejoin the party after stepping down
• Deciding Authority: The Speaker or Chairman decides all matters of disqualification under the Tenth Schedule.
  • They act as quasi-judicial tribunals under the anti-defection law.
• No Fixed Time Limit: The law does not prescribe any specific time limit for the presiding officer to decide defection petitions, leading to delays in many cases.
• Procedure for Defection Cases:
  • Initiation: A defection case can be taken up only after a complaint is received from a House member.
  • Opportunity to Explain: The accused member must be given a chance to present their explanation.
• Role of Whip:
  • The whip ensures party members’ attendance and voting discipline
  • Defying the whip and voting against the party line may attract action under the Anti-Defection Law.

Supreme Court’s Stance on Anti-Defection Cases

• Kihoto Hollohan vs Zachillhu (1992): The Supreme Court upheld the constitutionality of the Tenth Schedule and clarified that the Speaker’s decisions under it are subject to judicial review, thereby ensuring accountability.
• Ravi S. Naik vs Union of India (1994): The Supreme Court ruled that a legislator can be held to have voluntarily given up party membership based on conduct and behaviour, even without submitting a formal resignation.
• Nabam Rebia vs Deputy Speaker (2016): The Court held that it is constitutionally impermissible for the Speaker to decide disqualification petitions under the Tenth Schedule when a motion for the Speaker’s own removal is pending, and this issue has now been referred to a larger Constitution Bench.
• Keisham Meghachandra Singh vs Speaker, Manipur Legislative Assembly (2020): The Supreme Court directed that defection cases should be decided by the Speaker within a reasonable timeframe.

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Recommendations of committees on the Anti-Defection Law

• Dinesh Goswami Committee (1990):
  • The committee recommended that disqualification should be restricted only to cases where a member voluntarily leaves the party or defies the whip specifically during confidence and no-confidence motions.
  • It further suggested that defection-related disqualification should be decided by the President or Governor based on the advice of the Election Commission, instead of the Speaker.
• National Commission to Review the Working of the Constitution (NCRWC), 2002:
  • The NCRWC recommended that defectors should be barred from holding any public office or remunerative political post for the remainder of their term.
  • It further suggested that if a defector’s vote leads to the fall of a government, such a vote should be treated as invalid.

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