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In news:

Manipur Speaker’s decision to disqualify some MLAs ahead of the Rajya Sabha

elec on has raised ques ons once again on the Speaker’s powers to disqualify under
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the tenth schedule of our Cons tu on.
UPSC IAS preparation

Defini on of defec on UPSC IAS DAILY ARTICLE

Defec on is defined as “to abandon a posi on or associa on, o en to join an IAS preparation Current Affairs

opposing group” which essen ally describes a situa on when a member of a

par cular party abandons his loyalty towards that party and provide his support (in
the form of his vote or otherwise) to another party.
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What is the an -defec on law?
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The Tenth Schedule was inserted in the Cons tu on in 1985 by the 52nd Name *

Amendment Act. It lays down the process by which legislators may be disqualified on Name

grounds of defec on by the Presiding Officer of a legislature based on a pe on by

any other member of the House. Email *

The decision on ques on as to disqualifica on on ground of defec on is referred E-mail

to the Chairman or the Speaker of such House, and his decision is final.
The law applies to both Parliament and state assemblies.

Disqualifica on:

If a member of a house belonging to a poli cal party:

Voluntarily gives up the membership of his poli cal party, or
Votes, or does not vote in the legislature, contrary to the direc ons of his poli cal
party. However, if the member has taken prior permission, or is condoned by the

party within 15 days from such vo ng or absten on, the member shall not be
disqualified.
If an independent candidate joins a poli cal party a er the elec on.
If a nominated member joins a party six months a er he becomes a member of the
legislature.

Excep ons under the law

Legislators may change their party without the risk of disqualifica on in certain
circumstances.
The law allows a party to merge with or into another party provided that at least
two-thirds of its legislators are in favour of the merger.

In such a scenario, neither the members who decide to merge nor the ones who stay
with the original party will face disqualifica on.

Issues Associated With the Defec on

Subversion of electoral mandates: Defec on is the subversion of electoral mandates

by legislators who get elected on the cket of one party but then find it convenient to
shi to another, due to the lure of ministerial berths or financial gains.
Affects the normal func oning of government: The infamous “Aaya Ram, Gaya
Ram” slogan was coined against the background of con nuous defec ons by the
legislators in the 1960s. The defec on leads to instability in the government and

affects the administra on.

Promote horse-trading: Defec on also promotes horse-trading of legislators which
clearly go against the mandate of a democra c setup.

What are SC direc ves?

Supreme Court urged Parliament to set up an independent permanent tribunal to
decide disqualifica on pe ons within a reasonable me.
The Cons tu on would be amended to “subs tute” Speakers of the Lok Sabha and
Assemblies as “arbiter of disputes concerning disqualifica ons” who arises under the
Tenth Schedule “with a permanent tribunal”.
The tribunal could be headed by a re red SC judge or a re red chief jus ce of an HC
or some outside independent mechanism to ensure that such disputes are decided
swi ly and impar ally.

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The following cri cisms have been made against the proposed changes
Violates Separa on of powers principle
Violates Art 122 which bars courts from inquiring into the proceedings of the
Parliament.
An -Defec on proceedings fall under parliamentary proceedings.

Supreme Court Judgements in Kihoto Hollohan (1992) case:

Five Judge Bench of SC upheld the validity of the Cons tu on’s Tenth Schedule, or
the an -defec on law.
It was also held in this case that a Speaker or a Chairman, ac ng Tenth Schedule, is a

Tribunal and thus his discre onary powers were protected by Cons tu on.
(dissen ng minority view by Jus ce JS Verma who ques oned the fairness of speaker
in adjudica on)
This verdict had also made the Speaker’s order subject to judicial review on limited
grounds and that mere procedural infirmi es could not prompt judicial interven on.
It was also held that judicial review cannot be available at a stage prior to the making
of a decision by the Speaker/Chairman.

Recent Supreme Court judgement on the role of Speaker

Background:

The top court was hearing the appeal of Congress leader against the Manipur High
Court order. The High had refused to direct Speaker to decide on disqualifica on of
another Congress legislator who had defected to BJP & made minister. Following are
the pronouncements of the SC in this case
1. The Speakers should decide Tenth Schedule disqualifica ons within a reasonable

period. Unless there were “excep onal circumstances”, disqualifica on pe ons

under the Tenth Schedule should be decided by Speakers within three months
(This ques on on me period raised by two judge bench of Supreme Court in
S.A. Sampath Kumar vs. Kale Yadaiah, 2016 case)
2. Asked the Parliament to consider having an independent and permanent body to

decide disqualifica on pe on. Given the fact that a Speaker belongs to a par cular
poli cal party, the Court mooted this idea, which requires an amendment to the
cons tu on.
3. Also, Speaker wasn’t adjudica ng elec on disputes or disqualifica on of members

under Ar cles 103/ 192/ 329 for good reason, because their fairness could be
suspected.

Speaker’s power
The power for this disqualifica on is vested in the Speaker, who is usually a nominee
of the ruling party.

Since no ac on was taken by the Speaker on the disqualifica on pe ons, a writ

pe on was filed before the High Court of Manipur in Imphal seeking direc ons to
decide on the pe on.
However, the court did not pass an order.
It said that the larger issue of whether a High Court can direct a Speaker to decide a
disqualifica on pe on within a certain meframe is pending before a Cons tu on

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Bench of the Supreme Court.

The par es are le with the op on to move the apex court or wait for the outcome
of the cases pending before it.

The apex court’s reluctance to intervene

In 2018, however, the High Court, refusing the preliminary objec ons of the Speaker,
decided to hear the case on merits.
It reasoned that since the remedy under Tenth Schedule is an alterna ve to moving
courts.
It said that if the remedy is found to be ineffec ve due to deliberate inac on or
indecision on the part of the Speaker, the court will have jurisdic on.
However, the High Court again did not pass orders since the larger issue is pending
before the Supreme Court.

The apex court recommends-

The apex court has expressed its displeasure with the Speaker’s lack of urgency in
deciding the disqualifica on pe ons.
A three-judge bench of the Supreme Court ruled that Speakers of assemblies and the
Parliament must decide disqualifica on pleas within a period of three months except
in extraordinary circumstances.
This se led the law for situa ons where the ming of the disqualifica on is meddled
to manipulate floor tests.
The court also recommended that the Parliament consider taking a relook at the
powers of the Speakers ci ng instances of par sanship.

The court suggested independent tribunals to decide on disqualifica on.

Challenges of An -Defec on Law

Against the true spirit of representa ve democracy: The an -defec on law seeks to
provide a stable government by ensuring the legislators do not switch sides.
However, this law also enforces a restric on on legislators from vo ng in line

with their conscience, judgement and interests of his electorate.

Impedes legisla ve control on government: The an -defec on law impedes the
oversight func on of the legislature over the government, by ensuring that members
vote based on the decisions taken by the party leadership.
In short, if legislators are not able to vote on laws independently, they would not
act as an effec ve check on the government.
The An -Defec on Law, in effect, dilutes the separa on of powers between the
Execu ve and the Legislature – and centralises power in the hands of the
execu ves.
Role of presiding officer of the house: The law lays down that legislators may be
disqualified on grounds of defec on by the Presiding Officer of a legislature based on
a pe on by any other member of the House.
However, there are many instances when presiding officers play a part with the
vested interests of a poli cal party/government in power.
Also, the law does not specify a me period for the Presiding Officer to decide on
a disqualifica on plea.

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The decision thus is some mes based on the whims and fancies of the presiding
officer.

Affects the debate and discussion: The An -Defec on Law has created a democracy
of par es and numbers in India, rather than a democracy of debate and discussion.
In this way, it does not make a differen a on between dissent and defec on and
weaken the Parliamentary delibera ons on any law

What reforms are needed in An -defec on law?

Following are the key reforms needed in an -defec on law.
The decision making power of speaker / chairman needs review
The phrase “voluntarily giving up membership” is too vague and needs
comprehensive revision.
Poli cal par es should limit issuance of whips to instances only when the
government is in danger

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