Author: Piyush Shenoy, St. Aloysius (Deemed to be University), School of Law
To the Point
Over the years, we have seen that the Anti-Defection Law, introduced to preserve the stability of elected governments, has often been found caught between constitutional morality and political expediency. We saw that In practice, political parties and legislators repeatedly exploited its vague provisions, particularly concerning merger, split, and voluntary resignation. Judicial interpretations, while occasionally progressive, also reflected inconsistency and delay. This article explores how disqualification proceedings became a battleground of political strategy, raising serious questions about impartiality, the Speaker’s authority, and the judiciary’s role in democratic preservation.
Use of Legal Jargon
Defection: Switching political allegiance in violation of party mandate after being elected.
Whip: An official directive issued by a party to its members in the legislature.
Voluntary Giving Up: Under Paragraph 2(1)(a) of the Tenth Schedule, disqualification may occur not just by formal resignation but by conduct interpreted as abandoning party loyalty.
Merger Exception: It is a provision allowing defection if two-thirds of members merge with another party.
Judicial Review: Courts’ power to examine the constitutionality or legality of disqualification decisions.
Speakers’ Discretion: The authority granted to legislative Speakers to decide defection cases, which has come under scrutiny.
The Proof
Political developments in states like Karnataka (2019) and Maharashtra (2022) revealed how anti-defection proceedings were weaponised. In Karnataka, the Speaker disqualified 17 MLAs just before a trust vote, after they submitted resignations. These resignations were considered voluntary defections. The Supreme Court later upheld their disqualification but allowed them to contest by-elections, creating a paradox.
In Maharashtra, post the 2019 elections, the Shiv Sena’s internal split created legal ambiguity. Both factions claimed legitimacy. The issue of who controlled the party, and thus the whip, became central. The Speaker delayed deciding the matter. When Uddhav Thackeray resigned before facing a floor test, courts refrained from restoring the earlier government, even while acknowledging procedural lapses.
These instances highlighted how delayed adjudication, partisan Speakers, and ambiguous rules undermined the law’s purpose. The lack of an independent tribunal for defection cases contributed to further politicisation.
Abstract
The Anti-Defection Law, introduced via the 52nd Amendment to the Constitution in 1985, was designed to deter opportunistic floor-crossing. However, the decades since had shown how the law’s implementation fell prey to political manipulation. Through loopholes in the Tenth Schedule and varying judicial decisions, the disqualification process lost its intended effect. This article examined major controversies, Speaker’s bias, and the call for structural reforms.
Case Laws
Kihoto Hollohan v. Zachillhu (1992): The Supreme Court upheld the validity of the Tenth Schedule but allowed limited judicial review of the Speaker’s decisions.
Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly (2020): SC upheld the Speaker’s decision to disqualify MLAs but criticised the delay. It noted that the Speaker’s role must be neutral.
Nabam Rebia v. Deputy Speaker (2016): Court held that the Speaker cannot decide disqualification when a motion for their own removal is pending.
Subhash Desai v. Principal Secretary (Maharashtra, 2023): The Bombay High Court criticised the delay in adjudicating claims of defection and party legitimacy.
Conclusion
The legal framework on disqualification under the Anti-Defection Law had become a tool of convenience rather than justice. Political parties increasingly used procedural ambiguity to protect or eliminate dissenters. Courts attempted to create safeguards, but the absence of strict timelines and the Speaker’s conflict of interest limited progress. Proposals to establish an independent tribunal to handle such disputes gained traction, suggesting that meaningful reform required a shift from political control to constitutional neutrality.
FAQS
Can MLAs be disqualified without resigning from their party? Yes. Courts have held that conduct indicating disloyalty or public defiance of the party may count as voluntary giving up of membership.
Why is the Speaker’s role controversial in disqualification cases? Since the Speaker often belongs to the ruling party, there is concern about bias in deciding who should be disqualified.
Can courts review the Speaker’s decision? Yes, but only after the Speaker makes a decision. Courts cannot intervene mid-way unless there’s a constitutional violation.
What is the two-thirds rule in defections? If two-thirds of a party’s legislators join another party, it is considered a valid merger, not a defection.
Is there a time limit for deciding disqualification petitions? No fixed limit exists, though courts have repeatedly said decisions should be made in a reasonable time to prevent misuse.
