Role of the Speaker/Chairman in Deciding Anti-Defection Cases

At a Glance

• What it is The presiding officer’s power to decide defection petitions
• Decider Speaker (Lok Sabha and assemblies), Chairman (Rajya Sabha and councils)
• Time limit None in the Act
• Review Tribunal-like; subject to judicial review
• Exam link UPSC Prelims, Polity: Anti-Defection Law

Where Does It Fit?

This is the third topic of the category on the Anti-Defection Law. Any question regarding disqualification arising out of defection is decided by the presiding officer of the House, and not by the President or the Governor, unlike other disqualification questions.

Deciding Authority

The presiding officer of the House, the Speaker in the Lok Sabha and the state legislative assembly and the Chairman in the Rajya Sabha and the state legislative council, decides the question. Under the Act there is no time limit for him or her to decide such a case. Originally the Act said the presiding officer’s decision was final and could not be questioned in any court. In Kihoto Hollohan (1992), the Supreme Court declared this provision unconstitutional because it seeks to take away the jurisdiction of the Supreme Court and the High Courts. It held that the presiding officer, while deciding a question under the Tenth Schedule, functions as a tribunal, and the decision, like that of any other tribunal, is subject to judicial review on grounds such as mala fides and perversity. But the Court rejected the argument that vesting adjudicatory power in the presiding officer is invalid on the ground of political bias.

Rule-Making Power and Procedure

The presiding officer is empowered to make rules to give effect to the Tenth Schedule. All such rules must be placed before the House for 30 days, and the House may approve, modify or disapprove them. The officer may direct that any wilful contravention of the rules be dealt with as a breach of privilege of the House. Under the rules, the presiding officer can take up a defection case only when he or she receives a complaint from a member of the House. Before taking the final decision, the officer must give the member against whom the complaint is made a chance to submit an explanation, and may refer the matter to the Committee of Privileges for inquiry. Hence, defection has no immediate and automatic effect; the consequence follows only when the presiding officer decides.

Criticism of the Arrangement

The vesting of decision-making authority in the presiding officer is criticised on two grounds. First, he or she may not exercise this authority in an impartial and objective manner due to political exigencies, since the presiding officer usually belongs to the ruling party or alliance. Second, the officer lacks the legal knowledge and experience to adjudicate on such cases. Two Speakers of the Lok Sabha, Rabi Ray in 1991 and Shivraj Patil in 1993, themselves expressed doubts on their suitability to adjudicate on defection cases, and Patil stated that the advantages of giving these cases to the judiciary are many, since a Speaker or Chairman may not be endowed with legal acumen and proficiency in law, and it is more apt to have the cases decided by Supreme Court or High Court judges. The Supreme Court noted in Kihoto Hollohan that Chairmen and Speakers hold a pivotal position and are guardians of the rights and privileges of the House, and vesting them with this power should not be considered unexceptionable.

Alternatives Proposed

The same NCRWC also recommended that defectors, individually or in groups, must resign their seats and contest fresh elections, be debarred from holding public office as a minister or any remunerative political post for the remaining term or until the next election, and that the vote cast by a defector to topple a government be treated as invalid.

Why Is This Topic Important?

• Frequent issue Role of the Speaker is in the news
• Kihoto Hollohan Judicial review
• Reform proposals Election Commission as decider

What Came Next?

The next topic covers the 91st Amendment Act, 2003 and the removal of the split exception.

Key People and Terms

• Tribunal A quasi-judicial authority
• Mala fides Bad faith
• Perversity Irrationality of a decision
• Committee of Privileges Parliamentary inquiry body
• Complaint Needed to start proceedings

Exam Corner

Mains Angle

Questions on this topic usually ask whether the Speaker should decide. Use these points to add depth.

• Impartiality concerns Chair belongs to a party
• No time limit Delay concern
• Judicial review Kihoto Hollohan
• Alternatives EC or judges