Why political bias should be kept out of anti-defection law

THE 52ND AMENDMENT to the Constitution was made in 1985 to incorporate the Tenth Schedule, commonly known as the ‘anti-defection law’. The Statement of Objects and Reasons for the Amendment is rather lengthy, but the substance is in the introductory paragraph, which reads:

“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.”

While the intention of the amendment was to curb the ‘Aya Ram Gaya Ram’ syndrome prevalent at the time, the speaker of the house had a key role in his capacity as the implementing authority. The first case under this law before the Supreme Court was that of Kihoto Hollohan v. Zachillhu (1985) which dealt with a complaint (among other issues) of disqualification on the ground of defection of some members of the Nagaland Legislative Assembly. On the role of the speaker, the court held that the speaker performs a judicial function while deciding on a complaint under the anti-defection law and therefore the decision is judicially reviewable, but only to a limited extent and not on the merits of the decision. Equally importantly, the Supreme Court held that the office of the speaker in a parliamentary democracy has a high status and importance and performs wide-ranging functions, including of a judicial character. “The speaker is said to be the very embodiment of propriety and impartiality.” Therefore, the court rejected the contention that vesting an adjudicatory function in the speaker would vitiate the provision on the ground of likelihood of political bias.

Fast forward to 2011. In the Haryana Vidhan Sabha, disqualification petitions were filed under the anti-defection law against five legislators. For some reason, they were not heard by the speaker, and the petitioners moved the High Court for a direction to the speaker to decide the petitions. The High Court gave four months to the speaker to make a decision and also ‘disqualified’ the concerned legislators from functioning as legislators in the assembly. These directions were challenged by the speaker in the Supreme Court, which held that while the direction to decide the petitions within a specified timeframe was valid, the direction ‘disqualifying’ the legislators was invalid.

A somewhat similar situation arose in Manipur. The Legislative Assembly was constituted in March 2017 and soon after, the speaker received several disqualification petitions under the anti-defection law, one of which pertained to a cabinet minister. Unfortunately, the speaker took no action on these petitions. After examining the law on the subject and whether the speaker could refrain from exercising jurisdiction vested in him, the court held in Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly (2021) that the only relief that could be granted is a direction to the speaker to decide on the disqualification petitions within four weeks, perhaps keeping in mind that the disqualification petitions had been pending for almost four years with the speaker.

Not unsurprisingly, the speaker did not act within the deadline. Instead, an application was moved seeking another eight weeks to decide on the disqualification petitions. But that application was withdrawn. This attitude led the Supreme Court to restrain the minister “from entering the Legislative Assembly till further orders of this Court. Needless to add, he will cease to be a Minister of the Cabinet immediately.” The message was loud and clear that a perception of political bias was not acceptable.

In Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), the Supreme Court directed the speaker of the Maharashtra Legislative Assembly in May to decide on the disqualification petitions pending before him “within a reasonable period”. No decision was taken till September. Then the court gave a peremptory date of 31 December to make a decision. The court then gave two more extensions and, eventually, the speaker decided on the petitions on February 15, 2024. Political bias?

The Supreme Court has observed that the time has come to have a rethink on the matter and perhaps entrust the decision-making to a permanent tribunal headed by a retired Supreme Court judge or a retired Chief Justice of a High Court or some other independent mechanism so that such disputes are adjudicated swiftly and impartially. The Law Commission of India has also recommended some changes. These suggestions need a serious discussion so that a possible political bias is kept out of the anti-defection law, otherwise the Tenth Schedule will die a natural death.

Madan Lokur is a former Supreme Court judge and Raagini Raghu is a Delhi-based lawyer.