Anti Defection Law

How Manipur defections put focus on Speakers’ powers to disqualify?


From UPSC perspective, the following things are important :

Prelims level: Tenth Schedule

Mains level: Issues over Speaker's discretion in Anti-defection

Manipur Speaker’s decision to disqualify some MLAs ahead of the Rajya Sabha election has raised questions once again on the Speaker’s powers to disqualify under the tenth schedule of our Constitution.

Try this question from CSP 2019:

Q.The Ninth Schedule was introduced in the Constitution of India during the prime-ministership of:

(a) Jawaharlal Nehru

(b) Lal Bahadur Shastri

(c) Indira Gandhi

(d) Morarji Desai

What is the Tenth Schedule?

  • The anti-defection law, referred to as the Tenth Schedule, was added to the Constitution through the Fifty-Second (Amendment) Act, 1985 when Rajiv Gandhi was PM.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
  • This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
  • The law applies to both Parliament and state assemblies.

Exceptions under the law

  • Legislators may change their party without the risk of disqualification 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 disqualification.

Is there any time limit to decide on the matter?

  • The law does not specify a time period for the Presiding Officer to decide on a disqualification plea.
  • Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

Under debate: Speaker’s power

  • The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party.
  • Since no action was taken by the Speaker on the disqualification petitions, a writ petition was filed before the High Court of Manipur in Imphal seeking directions to decide on the petition.
  • 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 disqualification petition within a certain timeframe is pending before a Constitution Bench of the Supreme Court.
  • The parties are left with the option 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 objections of the Speaker, decided to hear the case on merits.
  • It reasoned that since the remedy under Tenth Schedule is an alternative to moving courts.
  • It said that if the remedy is found to be ineffective due to deliberate inaction or indecision on the part of the Speaker, the court will have jurisdiction.
  • 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 disqualification petitions.
  • A three-judge bench of the Supreme Court ruled that Speakers of assemblies and the Parliament must decide disqualification pleas within a period of three months except in extraordinary circumstances.
  • This settled the law for situations where the timing of the disqualification is meddled to manipulate floor tests.
  • The court also recommended that the Parliament consider taking a relook at the powers of the Speakers citing instances of partisanship.
  • The court suggested independent tribunals to decide on disqualification.

Also read:

Explained: Anti-defection law and its evolution

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