Anti-Defection Law in India and Its Importance Introduction 

• The Supreme Court recently said that a Speaker could not use his indecision to defeat the worthy objective of the Tenth Schedule (anti-defection law) of the Constitution.
• The Tenth Schedule of the Indian Constitution, also known as the Anti-Defection Law, was introduced by the 52nd Constitutional Amendment Act, 1985, with the primary goal of curbing the political instability caused by party-hopping or defections. 
• Defections, particularly in the 1960s and 1970s, resulted in governments being toppled, destabilizing the democratic process. 
• The Tenth Schedule, however, has faced criticism in recent years due to the increasing partisanship seen in the Speaker’s decisions on disqualification matters, which threatens to undermine its original intent.

What is the Tenth Schedule?

• • The Tenth Schedule specifically addresses the issue of disqualification of Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs) in cases of defection. The law was created in response to the political instability in the post-independence era, particularly in the late 1960s, when frequent defections destabilized state governments.

• Key Provisions of the Tenth Schedule:

• • Disqualification: An MP or MLA is disqualified if they voluntarily relinquish their party membership, vote against the party’s directives, or join another party. Independent members or nominated members can face disqualification after six months.
  • Speaker’s Role: The Speaker is given the authority to adjudicate matters related to defection, acting as a quasi-judicial authority under the Tenth Schedule.

Key Developments and the Role of the Speaker:

Why an Independent and Neutral Speaker is Essential? 

• For the Tenth Schedule to fulfill its constitutional role of stabilizing governments and maintaining democratic integrity, it is essential that the Speaker remains impartial and acts swiftly in defection cases. When partisanship influences the Speaker’s decisions, the integrity of the legislative process is compromised.
• Prevention of Political Horse-trading: If the Speaker’s decisions are influenced by political motives, it leads to post-election defections, as witnessed in Karnataka (2019) and Goa (2017). This undermines stability and governance.
• Constitutional Expectation: The Speaker should embody impartiality and propriety, ensuring that the Tenth Schedule’s objective of stabilizing governments is achieved.
• Judicial Perspective: Justice Gavai’s observation that a Speaker’s “indecision” cannot defeat the law’s purpose highlights the need for neutrality and swift action to preserve the constitutional integrity.
• Guardianship of Legislative Integrity: The Speaker is expected to promote institutional neutrality and act as a quasi-judicial authority under the Tenth Schedule. If partisanship dominates the Speaker’s role, it compromises the democratic foundation. In the 2020 Arunachal Pradesh case, the Supreme Court reiterated that the Speaker’s neutrality is crucial to maintaining democratic stability.
• Timely Adjudication and Trust in Institutions: The 2023 Constitution Bench in Keisham Meghachandra Singh v. Speaker Manipur emphasized that delays in defection matters violate the spirit of democracy and erode trust in legislative institutions.

Government Policies and Institutional Developments

• Several significant government and institutional developments have aimed at addressing the challenges in the Tenth Schedule and improving the process of handling defections.
• Supreme Court’s Role as Constitutional Guardian:
  • Article 142 of the Indian Constitution was invoked to ensure that justice is not defeated by partisan delays. The Supreme Court has directed Speakers in various cases (like Maharashtra, Karnataka, and Telangana) to act within a reasonable time frame when it comes to deciding defection cases.
• 91st Constitutional Amendment Act, 2003:
  • This amendment tightened the provisions on party mergers. It raised the threshold for a merger to be recognized from one-third to two-thirds of a party’s members, in an effort to reduce loopholes used for mass defections.
• All India Presiding Officers Conference (2021-2023):
  • A crucial forum where discussions about the Speaker’s powers under the anti-defection law were held. Multiple presiding officers expressed concerns over the need for a review of Speakers’ roles in disqualification matters.

Challenges to Integrity of the Speaker’s Role

• • Structural Partisanship & Political Capture:
    • Speakers are often elected by the ruling party, which can lead to biased decisions that favor the party in power. In the Maharashtra defection case (2022), delayed decisions benefitted the defectors who joined the ruling coalition.
  • Procedural Vacuum & Legal Ambiguity:
    • The Tenth Schedule lacks clear timelines for deciding petitions, which can result in delays in the adjudication of defection cases. The 91st Constitutional Amendment Act removed the split clause but still leaves room for manipulation through the merger provision.
  • Limited Jurisdiction & Constitutional Boundaries:
    • While courts cannot dictate the Speaker’s decision, they can only ensure timely adjudication, limiting judicial recourse. This creates challenges in ensuring fairness in defection cases.
    • In the Manipur defection case (2020), the Supreme Court ruled that while the Speaker holds the authority to adjudicate defection cases, courts can only ensure timely adjudication. However, they cannot dictate the merits of the Speaker’s decision. 
  • Legal Ambiguities:
    • Voluntary relinquishment of membership and the authority of the whip versus conscience votes remain undefined, contributing to delays in disqualification decisions. 
    • According to a 2022 ADR (Association for Democratic Reforms) study, the average time for a disqualification decision is 2.3 years, with a significant number of cases being decided after the MLA’s term had expired.
    • As per PRS Legislative Research (2023), 68% of defection cases remain unresolved until after the MLA’s term has ended, resulting in prolonged uncertainty and undermining public trust in the political process.
  • Misuse of Delay to Influence Governance:
    • Defectors often receive ministerial posts or other political perks before disqualification, which distorts the governance process. 

• A 2021 study by CMS (Centre for Media Studies) found that 71% of defectors were given ministerial positions or other significant political perks before their disqualification was finalized. This data highlights the degree to which the defection process is politically motivated and its impact on governance. 

Way Forward

• Code of Conduct for Presiding Officers: Create binding norms and codes for neutrality and accountability of Presiding Officers, ensuring that the Speaker’s decisions are impartial and aligned with democratic values.
• Constitutional Remedy & Democratic Safeguard: Allow judicial intervention if decisions are unduly delayed. Article 142 should be invoked to enforce timely decisions and ensure fairness in the defection process.
• Public Accountability and Electoral Penalty: Launch public education campaigns to raise awareness about the consequences of defections and promote electoral penalties for defectors to discourage opportunistic behavior.
• Strengthening Intra-Party Democracy: Empower political parties to uphold ideological integrity and reduce dependence on post-election deals, which will help minimize defections and create a more stable political environment.
• Global Best Practices: In countries like the UK and Canada, Speakers are non-partisan and elected through secret ballots. South Africa assigns defection cases to a Judicial Commission, ensuring impartiality.
• Committee Recommendations: Both the Dinesh Goswami Committee (1990) and Law Commission’s 170th Report (1999) recommended removing the Speaker’s adjudicatory powers and creating an independent tribunal for defection cases.
• Independent Tribunal Mechanism: Establish an independent tribunal, as recommended by the Law Commission and NCRWC, to handle defection cases impartially, with retired judges heading the tribunal.
• Statutory Timeline for Decision: Amend the law to require a maximum of 60 days for deciding defection cases, ensuring timely adjudication and accountability.