Anti Defection Law and Power of Speaker

✅The anti-defection law, referred to as the Tenth Schedule, was added to the Constitution through the 52nd (Amendment) Act, 1985 to provide for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.  

✅ Later, the 91st Amendment Act of 2003 omitted an exception provision of the Tenth Schedule i.e.,disqualification on ground of defection not to apply in case of split.

 

✅ Disqualification: A member of a House belonging to any political party becomes disqualified for being a member of the House,  

🔸if he voluntarily gives up his membership of such political party; or 

🔸if he votes or abstains from voting in such House contrary to any direction issued by his  

political party without obtaining prior permission of such party and such act has not been  

condoned by the party within 15 days.  

✅ Exceptions: The above disqualification on the ground of defection does not apply in the following two cases: 

🔸If a member goes out of his party as a result of a merger of the party with another party. A  

merger takes place when two thirds of the members of the party have agreed to such merger. 

🔸 If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.  

✅ An independent member of a House becomes disqualified to remain a member of the House if he joins any political party after such election. 

✅A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.  

✅The power for this disqualification is vested in the Speaker, who is usually a nominee of the ruling party. 

✅ Originally, the act provided that the decision of the presiding officer is final and cannot be questioned in any court. However, in the Kihoto Hollohan case (1993), the Supreme Court declared  

this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the Supreme Court and the high courts. Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.  

✅ Recently, 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.

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