• The Telangana High Court directed the state Legislative Assembly Secretary to place the disqualification petitions of three BRS MLAs, who had joined the ruling Congress, before the Telangana Assembly Speaker.

• Justice B. Vijaysen Reddy, while disposing of the writ petitions filed by BRS and BJP leaders seeking disqualification of three BRS MLAs — Danam Nagender, Tellam Venkat Rao and Kadiyam Srihari, directed the office of the Speaker to issue a schedule within four weeks on hearing and deciding on the petitions and that the schedule has to be communicated to the Registrar of the High Court.

• If the schedule is not communicated (within the four weeks), then the High Court on its own will reopen the petitions for hearing, the judge said.

What is the Tenth Schedule of the Indian Constitution?

• The Tenth Schedule, also known as the Anti-Defection Law, was added to the Indian Constitution by the 52nd Amendment in 1985. 

• This law was introduced to address the frequent defections by legislators, which had destabilized many state governments, especially after the 1967 general elections. 

The anti-defection law deals with situations of defection in Parliament or state legislatures by:

a) members of a political party,

b) independent members, and 

c) nominated members.

It is a situation when a member of a political party leaves his party and joins hands with other parties

A legislator could be disqualified:

i) If he or she voluntarily gives up the membership of a political party or joins any other political party after the election, votes or abstains from any crucial voting contrary to the directive circulated by his/her respective political party.

ii) A nominated member if he/she joins any political party after six months from the date he/she takes his seat.

iii) If, not less than two-thirds of the members of the legislature party have agreed to merge with other party they are exempted from disqualification.

• Chairman or the Speaker of the House have absolute power in deciding the cases pertaining to disqualification of members on the ground of defection.

Exception:

Legislators may change their party without the risk of disqualification in certain circumstances.

i)  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.

ii) If a person is elected as the Speaker of Lok Sabha or the Chairman of Rajya Sabha, then he could resign from his party and rejoin the party once he demits that post. 

• While these decisions are initially vested with the Speaker or Chairman, they are not immune from judicial scrutiny. The Supreme Court has ruled that such decisions are subject to judicial review to ensure fairness and adherence to constitutional principles. 

• This means courts can intervene if there are concerns over bias, procedural irregularities, or violation of natural justice in the disqualification process.

• It must be noted here that the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003.

• Deciding authority: Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

• Rule-making power: The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule.

Debates over Speaker’s role in disqualification matters

Over the past three years, the All India Presiding Officers' Conference, led by the Lok Sabha Speaker, has been examining the Speaker's role in disqualification matters under the 10th Schedule of the Constitution, which deals with defections by MPs and MLAs. The discussions have focused on protecting the dignity of the legislative speaker in this context, with many presiding officers suggesting that their involvement in deciding disqualification cases should be limited.

Problems with the role of Presiding Officers:

• The Speaker, often a member of the ruling party, may face challenges with impartiality when adjudicating defection cases involving their own party. This partisan affiliation can lead to perceptions of conflict of interest, where the Speaker might be seen as favoring their own party over others.

• The process for deciding defection cases is frequently criticised for its lack of transparency. There is often limited access to the evidence and rationale behind the Speaker’s decisions, which can lead to concerns about fairness and accountability.

• The anti-defection law does not specify a timeframe for the Speaker to resolve defection cases. This absence of a clear timeline can result in prolonged delays and uncertainties, potentially impacting political stability and governance.

• The discretionary nature of the Speaker’s powers in the defection process has led to inconsistent applications. For instance, in Tamil Nadu, 18 legislators were disqualified for defection from the AIADMK party, while the Speaker did not disqualify legislators from the Uddhav Thackeray faction of the Shiv Sena in Maharashtra, despite similar circumstances.

• The judiciary’s role in overseeing the application of the anti-defection law is constrained. In Maharashtra, for example, the Supreme Court could only issue instructions to the Speaker, who then selectively implemented these instructions in a manner favoring their party faction. This selective adherence to judicial directions highlights the limitations in judicial oversight and the potential for biased decision-making.

Steps required for effective implementation of the law

• Strengthen Legislation: Amend the anti-defection law to address existing gaps and ambiguities, ensuring that the legislation is robust and clear in its provisions.

• Time-Bound Decisions: Implement a firm timeframe for the Speaker to decide defection cases, with the possibility of extending this period only under exceptional circumstances. This will help prevent delays and ensure timely resolution.

• Appeals Process: Develop a streamlined appeals process for challenging the Speaker’s decisions, using fast-track procedures in courts to minimise delays and provide prompt judicial redress.

• Clear Procedures: Establish clear and well-defined procedures for presenting evidence, examining witnesses, and making arguments in defection cases to ensure efficiency and fairness in the process.

• Enhance Judicial Review: Expand the scope of judicial review to allow courts to examine not only procedural flaws but also the substantive aspects of the Speaker’s decisions. This can serve as a check against arbitrary or biased use of power.

• Independent Tribunal: Create an independent anti-defection tribunal composed of non-partisan legal experts. This would remove the Speaker’s direct involvement and help address concerns about political influence.

• Code of Conduct: Implement a strict and transparent code of conduct for the Speaker, emphasizing non-partisanship and objective decision-making. This would promote accountability and fairness in handling defection cases.

• Transparency Measures: Enhance transparency in the defection case process by making records publicly accessible, establishing clear criteria for decision-making, and publishing judgments. This would build public trust and reduce suspicions of bias.

• Legislative Committee: Explore alternative models, such as a dedicated committee with representatives from various parties, for preliminary investigation and recommendations in defection cases. This approach could alleviate the Speaker’s direct burden and foster broader consensus.

(The author is a trainer for Civil Services aspirants.)