SC urged to set up an independent tribunal to decide the merit of Anti-Defection Law

Parliament: functioning & privileges and issues arising out of these


Recently, the Supreme Court asked Parliament to “seriously consider amending the Constitution” so that an independent tribunal headed by a former judge could replace the Speaker as arbiter when it comes to deciding on disqualification of lawmakers under the anti-defection law.

What is the issue?

Many expert committees have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.

This would be similar to the process followed for disqualification in case the person holds an office of profit (i.e. the person holds an office under the central or state government which carries remuneration, and has not been excluded in a list made by the legislature).

What is the anti-defection law?

  • The 10th schedule of the Indian constitution deals with the anti-defection law.
  • The anti-defection law aimed to prevent such political defections which may be due to reward of office or other similar considerations.
  • A legislator is considered 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.

Is there any exception under the law?

 Legislators may change their party without the risk of disqualification in certain circumstances provided that-

  • A party to merge with or into another party with at least two-thirds of its legislators are in favor 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.

How has the law been interpreted by the Courts while deciding on related matters?

The Supreme Court has interpreted different provisions of the law. Some of these are below.

  • The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation.
  • The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.
  • However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.
  • In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

The decision of the Presiding Officer is subject to judicial review

  • The law initially stated that the decision of the Presiding Officer is not subject to judicial review.
  • This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court.
  • However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.
  • In 2015, the Hyderabad High Court refused to intervene after hearing a petition which alleged that there had been delay by the Telangana Assembly Speaker in acting against a member under the anti-defection law.

Is there a time limit within which the Presiding Officer has to decide?

  • 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.
  • There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
  • In some cases this delay in decision making has resulted in members, who have defected from their parties, continuing to be members of the House.
  • There have also been instances where opposition members have been appointed ministers in the government while still retaining the membership of their original parties in the legislature.
  • In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party.
  • In some of these cases, more than 2/3rd of the opposition has defected to the ruling party.
  • In these scenarios, the MLAs were subject to disqualification while defecting to the ruling party in smaller groups. 
  • However, it is not clear if they will still face disqualification if the Presiding Officer makes a decision after more than 2/3rd of the opposition has defected to the ruling party.
  • The Telangana Speaker in March 2016 allowed the merger of the TDP Legislature Party in Telangana with the ruling TRS, citing that in total, 80% of the TDP MLAs (12 out of 15) had joined the TRS at the time of taking the decision.

Does the anti-defection law affect the ability of legislators to make decisions?

  • The anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides.
  • However, this law also restricts a legislator from voting in line with his conscience, judgment, and interests of his electorate.
  • Such a situation impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership, and not what their constituents would like them to vote for.
  • Political parties issue a direction to MPs on how to vote on most issues, irrespective of the nature of the issue.
  • Several experts have suggested that the law should be valid only for those votes that determine the stability of the government (passage of the annual budget or no-confidence motions).