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22th February 2023 (9 Topics)

Speaker is deciding authority to rule under anti-defection law

Context

The Supreme Court mentioning in a case viewing the power of the Speaker under the Tenth Schedule of the Constitution held that the presiding officer is the authority to decide on defecting cases.

About

About the case:

  • According to the 1992 ruling of the SC Constitution bench in KihotoHollohanvsZachillhu, wherein a Constitution Bench upheld the validity of the 10th schedule is not reversed and the Speaker would continue to be the deciding authority.
  • The Court mentioned that Speaker is the authority to decide on cases related to Anti-defection Law and his decision is final.

After KihotoHollohan versus Zachilhu case (1993), the Supreme Court declared that the decision of the presiding officer is not final and can be questioned in any court.

  • It is subject to judicial review on the grounds of malafide, perversity, etc.

What is an ‘Anti-Defection Law’?

  • The 'anti-defection law' was passed through an Act of Parliament in 1985.
  • Passed as the 52nd Amendment Act, it added the law as the 10th Schedule of the Constitution of India. Articles 102 (2) and 191 (2) deal with anti-defection.
  • The anti-defection law sought to prevent such political defections which may be due to the reward of office or other similar considerations.
  • It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.
  • A legislator is deemed to have defected if:
    • He either voluntarily gives up the membership of his party
    • He 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 in the House.  
  • The law applies to both Parliament and state assemblies.

Exception: 

  • There are a few exceptions in the law. However, this exception is applicable only if not less than two-thirds of the members of the party in the House have emerged to the merger.
  • A person shall not be disqualified if his original political party merges with another, and:
    • He and other members of the old political party become members of the new political party, or
    • He and the other members do not accept the merger and opt to function as a separate group.

Power of Speaker under 10th schedule:

  • The Speaker is the head of the Lok Sabha Secretariat which functions under her ultimate control and direction.
  • Under the provisions of the Tenth Schedule to the Constitution of India, (para-6) the Presiding Officer of the concerned House is the sole and final authority to determine the alleged question of disqualification on the ground of defection.
  • On the other hand, to determine the question as to whether the Speaker/Chairman of a House has indeed defected, the Tenth Schedule provides for a procedure according to which a member of the concerned House is elected on an ad-hoc basis to determine the alleged question of disqualification on the ground of defection.

Important Judgements:

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