Context: 

• The Speaker of Maharashtra State Legislature recognised the Shinde faction of Shiv Sena party as the real Shiv Sena party recently. These actions followed instructions of the Supreme Court but were not in consonance with those instructions.

Defection and Anti Defection Law:

• Defection involves a politician leaving one political party to join another, often with significant implications for power dynamics and governance.
• In 1985, the Parliament through the 52nd amendment act amended the Constitution(Articles 101, 102, 190, 191) to include defection as a ground for disqualification of the legislators.
• The Anti Defection law(ADL) details the process of disqualification to be followed in case of a defection. It explains the role of the Presiding officers in taking up defection complaints.
• Any question regarding disqualification arising out of defection is to be decided by the Presiding officer of the House. 
• 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.
• The Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, functioned as a tribunal. Hence, the Speaker’s decision is subject to judicial review.

Problems with the role of Presiding Officers:

• Potential for Bias: The Speaker is often a member of the ruling party, raising concerns about impartiality when deciding defection cases involving the same party. This partisan affiliation can create the impression of a conflict of interest, where the Speaker might favour their own party over others.
• Lack of Transparency: The process of deciding defection cases is often opaque, with limited access to evidence and reasoning behind the Speaker’s decision.
• Delays and Uncertainties: Anti Defection law has not given a specific timeframe for the Speaker to decide defection cases, leading to prolonged delays and uncertainty, which can hinder political stability and governance.
• Discretionary use of disqualification powers in the defection process. Disqualification was done in the case of 18 legislators in Tamil Nadu for their defection from AIADMK party but the Speaker did not disqualify legislators belonging to Uddav Thackeray faction of Shiv Sena party in Maharashtra.
• Limited role of the Judiciary in the use of ADL. In the case of Maharashtra, the Supreme Court could give only instructions to the Speaker but the Speaker had selectively used the instructions which favour his faction of the party.

Steps to control the role of Speaker:

• Strengthening the Legislation through the amendment of ADL to address the gaps.
  • Time-Bound Decisions: Setting a firm timeframe for the Speaker to decide defection cases, possibly with an extension mechanism under exceptional circumstances, can prevent delays and expedite the process.
  • Appeals Process: Streamlining the appeals process against the Speaker’s decision through fast-track procedures in the courts can reduce delays and provide timely judicial redress.
  • Clear Procedures: Establishing clear and well-defined procedures for evidence presentation, witness examination, and arguments in defection cases can ensure efficiency and fairness.
  • Judicial Review Enhancement: Expanding the scope of judicial review to allow courts to examine not only procedural flaws but also the substance of the Speaker’s decision can act as a check on arbitrary use of power.
  • Independent Tribunal: Establishing an independent Anti-Defection Tribunal, composed of non-partisan legal experts, would remove the Speaker’s direct involvement and address concerns about political influence.
• Code of Conduct: Implementing a strict and transparent code of conduct for the Speaker, emphasising non-partisanship and objective decision-making, could promote greater accountability and fairness.
• Transparency Measures: Enhancing transparency in the defection case process, such as publicly accessible records, clear criteria for decision-making, and published judgments, would build trust and prevent suspicion of bias.
• Legislative Committee: Exploring alternative models, such as a dedicated committee composed of representatives from various parties, for preliminary investigation and recommendations in defection cases, could reduce the Speaker’s direct burden and foster broader consensus.

Political defections to form Governments at state level have increased manifold in recent years. The time is ripe to update the Anti Defection Law.