Volume X Issue I 344 368
Volume X Issue I 344 368
Abstract
*
Charith Reddy is a fifth-year student at National Academy of Legal Studies and
Research, Hyderabad. The author may be reached at [email protected].
**
Shagun Bhargava is a fifth-year student at National Academy of Legal Studies and
Research, Hyderabad. The author may be reached at [email protected].
1
CHARITH REDDY & FOR LAWS MAY COME & LAWS
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of the Speaker as the sole arbiter be
reconsidered. The paper seeks to establish
that any legal or legislative reform to remedy
an inherently political issue such as that of
defections would only be a piecemeal solution.
In this context, this paper seeks to evaluate the
role and function of the Speaker and
highlights the paradoxical nature of the office
of the Speaker as one of the leading causes for
the ineffective realization of the anti-defection
law. In light of the recent instances of
rampant misuse of powers by the Speaker, the
paper analyses the recommendation by the
Supreme Court to replace the Speaker with an
independent tribunal and other such
recommendations that have come to the fore
over the brief history of the anti-defection law
in India. In this context, the paper then
concludes by asserting that given the political
environment shrouding the Indian polity, the
anti-defection laws are to be retained, at least
as an interim measure, while striving towards
more holistic changes in the political culture
in India.
I. INTRODUCTION
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laws to regulate defections. Across a wide spectrum of countries-
defections have been absolutely prohibited, qualifiedly permitted or
given a free hand. Defections in India were marred by unprincipled,
inconsistent and opportunistic movements across party lines that
exhibited a shocking level of clientelism and democratic immaturity.
This alarming trend forced the Indian legislature to come up with a
regulatory system to curb this destabilizing movement across party
lines. The efficacy of these anti-defection laws under the Tenth
Schedule of the Constitution of India has been pondered upon time
and again in light of a history of discontent with the laws itself.
Recently, the apex court brought this issue to the forefront in Keisham
Meghachandra Singh vs. the Hon’ble Speaker Manipur Legislative
Assembly & Ors.1 The latest in a long list of judgements criticizing
defection laws, it highlighted the role played by the Speaker in the
defection process while being critical about the abuse of powers and
its adverse impact on the effective realization of the law. The court
even suggested the Speaker be replaced by an apolitical and neutral
tribunal.
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2
K.T. Thomas, ‘Anti-Defection Law’ (2009) 3 NUALS Law Journal 1.
3
Ankur Bhardwaj, ‘Return of Aaya Ram, Gaya Ram: How the Anti-Defection Law
is Misinterpreted’ (4 July 2019) Business Standard <www.business-
standard.com/article/politics/return-of-aaya-ram-gaya-ram-how-the-anti-defection-
law-is-misinterpreted-119070300387_1.html> accessed 3 July 2020.
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would guarantee that the existing members of the party would stay
content and not fear any dilution of their power or authority due to the
entry of newcomers. This move concretized the loyalty of the existing
members to the ruling Congress party. 4 These reasons for introducing
the anti-defection laws are evident from Prime Minister Rajiv
Gandhi’s speech in the Lok Sabha before the passing of the
amendment bill as he laid emphasis on the fact that the defections are
invariably to the Congress Party, and not from the Congress Party 5
and that the bill would help to keep the Congress Party intact, to
strengthen the Congress Party.6 Similarly, for the opposition party,
passing the anti-defection amendment would ensure that the already
scarce power they control in the Parliament is not further diluted due
to defections to the ruling government.7 The justifications given for
the passing of the anti-defection law in Parliament are a testament to
the partisan origins of the law.
The primary aim of the anti-defection law was to strengthen political
stability and to inculcate a sense of political responsibility. 8 Anti-
defection laws are used to disincentivize, deter and punish members
who defect. The decision to penalize defectors stemmed from a
history of defections where the elected members moved between
parties that were ideologically inconsistent. This unprincipled
movement across party lines merely for wealth and power highlighted
4
Csaba Nikolenyi & Shaul R. Shenhav, ‘The Constitutionalisation of Party Unity:
The Origins of Anti-Defection Laws in India and Israel’ (2015) 21 Journal of
Legislative Studies 390.
5
Lok Sabha Debates (30 January, 1985) p. 183.
6
ibid.
7
Csaba Nikolenyi & Shaul R. Shenhav, ‘The Constitutionalisation of Party Unity:
The Origins of Anti-Defection Laws in India and Israel’ (2015) 21 Journal of
Legislative Studies 390.
8
Valerian Rodrigues, ‘Parliamentary Opposition and Government Backbenchers in
India’ in N. Ahmed (ed), Inclusive Governance in South Asia (2018).
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the need for a legal regime to restrict such movement. 9 The rise of
coalition governments accentuated the need for anti-defection laws to
ensure stability and to maintain a majority in the government.
Therefore, these laws were a necessity to ensure governmental,
political and ideological stability in an era where free-flowing
defections could topple governments.
The other reason that necessitated the need to introduce anti-defection
laws was endemic to India - the political party was and is the locus of
representation and not the individual candidate contesting with the
party ticket.10 Therefore, the votes garnered by a candidate are usually
on account of their affiliation to the respective political party and not
on the basis of the candidate’s individual prowess. The Supreme
Court in Kihoto Hollohan v. Zachillu & Ors 11 reiterated this by saying
that “A political party goes before the electorate with a particular
programme and it sets up candidates at the election on the basis of
such programme. A person who gets elected as a candidate set up by
a political party is so elected on the basis of the programme of that
political party.”12 This meant that any defection by the elected
members in pursuit of power and wealth would be in utter disregard
to the will of their constituents who would have “voted for a
particular ideology, some principles, (or) a programme”13 of the
political party that the elected member represented. Any defections on
ideologically inconsistent and unprincipled grounds would be an
affront to the will of the people and in extension- the representative
democracy. Therefore, this breach of trust by the elected members
9
Paras Diwan, ‘Aya Ram Gaya Ram: The Politics of Defection’ (1979) 21 Journal
of the Indian Law Institute 291.
10
Udit Bhatia, ‘Cracking the Whip: The Deliberative Costs of Strict Party
Discipline’ (2020) 23 Critical Review of International Social and Political
Philosophy 254.
11
Kihoto Hollohan v. Zachillhu And Others [1992] SCR (1) 686.
12
Ibid.
13
Ibid.
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also prompted the urgent need for a stern and uncompromising anti-
defection law to regain the faith of the people in the electoral system.
The provisions under the Tenth Schedule of the Constitution clearly
exhibit these underlying ideologies and objectives. The quest for party
discipline and political stability led to the expansive provision for
disqualification under Paragraph 2 of the Tenth Schedule. This
paragraph is the crux of the legislation and lays down the conditions
for the disqualification of members. While the provision only lists out
specific overt acts that could lead to disqualification, the Supreme
Court in Ravi Naik v. Union of India14 broadened the scope by
interpreting that voluntary giving up of membership could also be
inferred by the conduct or actions of the member. This led to various
awkward scenarios where even the public criticism of the party
president’s orders and decisions were inferred as defections.15 The
Speaker is tasked with determining the questions of disqualification
on the grounds of defection even in nebulous scenarios such as these.
This often means that the biases and perceptions of the Speaker play a
significant role in the determination of these questions.
The legislature was presented with the choice to either totally prohibit
defection or to provide for a qualified freedom to defect.16 The
legislature chose the latter and listed out circumstances under which
an elected member could defect without facing any repercussions.
Paragraph 4 of the Tenth Schedule excludes party mergers from the
ambit of defection disqualification if such merger was approved by at
least two-thirds of the members. Under this exception, members
joining the merged political party and those members who have
disagreed to join the merged party and have opted to start a separate
14
Ravi S. Naik v. Union of India [1994] AIR 1558.
15
Ram Chandra Prasad Singh v. Sharad Yadav, Rajya Sabha Notification No. RS
46/2017-T.
16
Nico Steytler, ‘Parliamentary Democracy - The Anti-Defection Clause’ (1997) 1
Law Democracy & Development 221.
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17
Clemens Spieß and Malte Pehl, ‘Floor Crossings and Nascent Democracies - A
Neglected Aspect of Electoral Systems? The Current South African Debate in the
Light of the Indian Experience’ (2004) 37 Law and Politics in Africa, Asia and
Latin America 195.
18
Vijaya Bhaskar Reddy, ‘Sabotage of Anti-Defection Law in Telangana’ (2015) 50
Economic and Political Weekly.
19
H.R. Saviprasad & Vinay Reddy, ‘The Law on Anti-Defection: An Appraisal’
(1999) 11 Student Advocate 116.
20
Shoaib Daniyal, ‘The Political Fix: Has the Anti-Defection Law Hollowed out
India’s Representative Democracy?’ Scroll.in (22 July 2019)
<https://scroll.in/article/931323/the-political-fix-has-the-anti-defection-law-
hollowed-out-india-s-representative-democracy> accessed on 9 July 2020.
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and ineffectiveness of the law there has been a rising demand to
repeal the law in its entirety. 21 The challenges to the law have been
centred around the argument that the usage of legal means to remedy
a political concern will always remain ineffective. However, the calls
for repealing the law on these grounds are rather radical and extreme.
Although there is consensus on the ineffectiveness of legal means to
remedy political concerns - there is also a need to acknowledge the
immaturity and nascence of the Indian political culture. In a study
involving 40 Commonwealth countries, it was observed that only the
relatively newer democracies such as India and South Africa had
established anti-defection laws. On the other hand, more developed
political systems such as the United Kingdom, Canada and Australia
did not require anti-defection laws owing to a development of
practices and conventions that inhibited such defections across party
lines.22 In light of this argument, the need to retain the anti-defection
laws in India, at least as an interim measure is established. Despite not
being a perfect solution, given the political and social context in
India, there is a need to retain the laws, at least until a culture of
democratic responsibility is instilled in the elected members.
To examine the shortcomings of the law it is imperative to critically
analyse the role and importance of the office of the Speaker as it is the
most important functionary under the anti-defection law. Therefore, it
is essential to understand the role of the Speaker to holistically
comprehend the manner in which they deviate from the anti-defection
laws and subvert the procedure.
21
Chakshu Roy, ‘What an Indian Law Can Do to MLAs Defecting in Karnataka &
Goa - Nothing’ (The Print, 12 July 2019) <https://theprint.in/opinion/what-an-
indian-law-can-do-to-mlas-defecting-in-karnataka-goa-nothing/261920/> accessed
10 July 2020.
22
GC Malhotra, ‘Anti-Defection Law in India and the Commonwealth’ (Lok Sabha
Secretariat, 2005)
<https://eparlib.nic.in/bitstream/123456789/58674/1/Anti_Defection_Law.pdf>
accessed on 10 July 2020.
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members,29 and it is within their mandate to adjourn the House, in
cases of gross misconduct.30 To maintain the decorum of the House
they are allowed to interrupt members and ask them to withdraw
statements if they can be classified as un-parliamentary.31 Lastly, they
also perform quasi-judicial functions and are required to function as a
tribunal. As per Paragraph 6 under the Tenth Schedule, the Presiding
Officer alone is empowered to disqualify elected members on grounds
of defection, based upon a petition by any other member of the
House. Hence, as envisaged by the law, the Speaker must act like a
neutral and unbiased party to determine the facts and establish if the
members had in fact defected.
It should be noted that the Speaker while undertaking these tasks
represents the House as a whole. Hence, maintaining a stance of
impartiality is a key requisite for the role. This requirement of
impartiality has not been codified in the text of the constitution but
exists as a constitutional convention.32 The Speaker must adhere to
this convention out of a sense of public duty or simply out of fear of
judicial intervention. Hence, neutrality and non-partisanship are key
tenets of the Speaker’s role.33
<https://www.thehinducentre.com/publications/policy-report/article5137287.ece>
accessed 10 July 2020.
29
Rules of Procedure of the Lok Sabha, Rule 374.
30
Rules of Procedure of the Lok Sabha, Rule 375.
31
Rules of Procedure of the Lok Sabha, Rule 352 and 378.
32
Harsimran Kalra, ‘Decisional Analysis and the Role of the Speaker’ (2013) 1 The
Hindu Centre for Politics and Public Policy
<https://www.thehinducentre.com/publications/policy-report/article5137287.ece>
accessed 10 July 2020.
33
Matthew Laban, ‘More Westminster than Westminster? The Office of Speaker
across the Commonwealth’ (2014) 20(2) The Journal of Legislative Studies 143,
143.
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While the Speaker can technically hail from any party, a rather
troubling trend has developed in the recent past wherein the Speaker
is elected from the ruling party and the Deputy Speaker from the
opposition party.34 These affiliations to the ruling party have resulted
in several instances wherein the Speaker had acted in a manner that
was beneficial to the ruling party. For example, in several instances,
the Speakers have taken an inordinate amount of time to decide on the
disqualification of elected members for defecting as it benefited the
ruling party.35 The Speakers often torn between their party loyalties
and a sense of duty towards the Constitution have often given
paramountcy to their partisan ties. Herein lies the paradox - the
Speaker, elected by a particular political party, is expected to
adjudicate disputes in a neutral fashion.
Developed democracies have taken steps to ensure the position of a
Speaker remains apolitical, and untouched by the desire of political
gain or fear of loss of office. It is observed that even though
commonwealth legislatures have attempted to emulate the
Westminster model of Speakership - they have struggled to copy all
elements or have clung to traditions discarded by the Westminster
model as well.36 For instance, due to well-established conventions, the
Speakers in the United Kingdom shed all party affiliations upon
election. However, this is not the case in most commonwealth
nations, including India. An attempt was made to emulate this in
34
Harsimran Kalra, ‘Decisional Analysis and the Role of the Speaker’ (2013) 1 The
Hindu Centre for Politics and Public Policy
<https://www.thehinducentre.com/publications/policy-report/article5137287.ece>
accessed 10 July 2020.
35
Vijaya Bhaskar Reddy, ‘Sabotage of Anti-Defection Law in Telangana’ (2015) 1
Economic and Political Weekly 50.
36
Matthew Laban, ‘More Westminster than Westminster? The Office of Speaker
across the Commonwealth’, (2014) 20(2) The Journal of Legislative Studies 143,
143.
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Canada, however, it failed.37 In the United Kingdom, the Speakers
prove their neutrality by giving up party politics and resigning from
their political party upon election.38 Upon retirement, the former
Speaker resigns as a Member of Parliament and is awarded the
customary peerage.39 Further, they never re-enter party politics and sit
as independent crossbenchers in the House of Lords.40 If a Speaker
seeks re-election, major political parties do not field candidates in the
Speaker’s constituency. This too, has not been codified and is rather a
constitutional convention which is religiously followed. Further, the
Speaker does not contest by making any political promises and stands
simply as the ‘Speaker seeking re-election’. 41 However, the Speakers
can deal with their own constituency's problems like a normal
Member of Parliament.42 This serves the dual purpose of ensuring that
the Speaker remains accountable to the public and is given a free rein
to preside over the House effectively.
Northern Ireland, which boasts of a parliamentary system akin to
ours, also ensures that the Speaker renounces partisan life.43
Speakership is given to individuals who relinquish their political
ambitions, which is testamentary to their unbiased nature.
In sharp contrast to these practices, the Speakers in India are not
mandated to give up party membership and neither does any such
37
ibid 145.
38
ibid.
39
ibid.
40
ibid.
41
‘Election 2019, Your Questions Answered: What Happens to the Losers?’ (BBC
News, 11 December 2019) <https://www.bbc.com/news/election-2019-50523682>
accessed 10 July 2020.
42
Harsimran Kalra, ‘Decisional Analysis and the Role of the Speaker’ (2013) 1 The
Hindu Centre for Politics and Public Policy
<https://www.thehinducentre.com/publications/policy-report/article5137287.ece>
accessed 10 July 2020.
43
Stanley Bach, ‘The Office of Speaker in Comparative Perspective’ (1999) 5(3)
The Journal of Legislative Studies 209.
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44
Harsimran Kalra, ‘Decisional Analysis and the Role of the Speaker’ (2013) 1 The
Hindu Centre for Politics and Public Policy
<https://www.thehinducentre.com/publications/policy-report/article5137287.ece>
accessed 10 July 2020.
45
Kihoto Hollohan v. Zachillhu And Others [1992] SCR (1) 686.
46
ibid.
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Government of India, being an undischarged insolvent, not being a
citizen of India or being of unsound mind. Articles 103 and 192 state
that these disqualifications must be decided by the President or
Governor respectively in accordance with the opinion of the Election
Commission. The minority judgment highlighted how during the
course of the debates it was suggested that the Speaker be given the
power to decide on disqualifications, however, the drafters had
specifically refrained from doing so.47 Instead, the power was given to
the President and the Governors. The minority decision also
highlighted that since the tenure of the Speaker was dependent on the
will of the majority, the suspicion of bias cannot be ruled out. Further,
even the possibility of this bias sneaking into the decisions of the
Speaker would potentially violate a basic feature of the constitution:
free and fair trials.48 Hence, Justice Nariman was right to state in
Keisham Meghachandra Singh that the fears of the minority judgment
in Kihoto have come home to roost.
With regard to the second question, it was held that the Speaker acts
like a tribunal. The court relied upon its earlier judgments in Indira
Nehru Gandhi v. Raj Narain49 and Brundaban Nayak v. Election
Commission of India and Anr.,50 and stated that the finality clause
does not oust the jurisdiction of the courts under Articles 136, 226
and 227. However, it was noted that the power of courts to intervene
is limited to when the authority is acting ultra vires, their action is
vitiated by mala fides or there is a colourable exercise of their power.
Hence, the court stated that in light of the finality clause, judicial
review cannot be availed at a stage prior to the making of a decision
by the Speaker, or at an interlocutory stage of proceedings. Hence, the
courts are barred from interfering into the matter before the Speaker
47
ibid.
48
Indira Nehru Gandhi v. Shri Raj Narain [1976] 2 SCR 347.
49
ibid.
50
Brundaban Nayak v. Election Commission Of India [1965] 3 SCR 53.
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complete disregard to principles of a fair trial. This trend of the
Speaker to act against the constitutional mandate of maintaining a
neutral position was highlighted in the case of Shrimanth Balasaheb
Patil v. Hon’ble Speaker, Karnataka Legislative Assembly.55 This
case dealt with the misuse of the discretion given to the Speaker to
reject resignations. The court stated that while conferring discretion,
the Speaker must decide upon the voluntariness or genuineness of the
resignation based upon objective criteria.
55
Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly
2019 SCC OnLine SC 1454.
56
Pema Khandu and Ors v. Speaker, Arunachal Pradesh Legislative Assembly and
Ors 2016 SCC OnLine Gau 284.
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The Speakers have over time exploited the gaping holes in the
defection laws and have created a pressing need to push for reforms to
tackle the issues of partisanship and abuse of powers. Over time, a
few viable recommendations have surfaced, however, none have been
adopted.
In Keisham Meghachandra Singh57 the Supreme Court did two
things. Firstly, the court curtailed the powers of the Speaker to a great
extent by allowing for judicial review prior to the stage of the Speaker
having given their decision. The court lifted this bar by jointly reading
Kihoto Hollohan58 and Rajendra Singh Rana,59 to conclude that the
failure to exercise jurisdiction is not covered by the in-built restriction
in Paragraph 6. Secondly, it implored the Parliament to explore the
possibility of an independent tribunal to replace the Speaker.
The Supreme Court suggested an independent tribunal headed by a
retired Supreme Court Judge at the national level and a retired Chief
Justice of a High Court at the state level. The creation of such a quasi-
judicial body headed by a judicial member would wreak havoc on the
already debilitating separation of powers. This proposal would
effectively approve judicial interference in matters that are inherently
political.
Furthermore, there is a high probability that the proposed judicial
members would be appointed to the tribunals through a system of
appointments that could bear resemblance to the collegium system.60
57
Keisham Meghachandra Singh v. Hon'ble Speaker Manipur Legislative Assembly
and Others 2020 SCC OnLine SC 55.
58
Kihoto Hollohan v. Zachillhu And Others [1992] SCR (1) 686.
59
Rajendra Singh Rana and Ors v. Swami Prasad Maurya and Ors (2007) 4 SCC
270.
60
Prarthana Kashinath, ‘SC Urges Rethink of Speaker’s Disqualification Powers:
Why Plumping for ‘Impartial Tribunal’ to Deal with Political Turncoats is No
Panacea’ (Firstpost 26 January 2020) <https://www.firstpost.com/india/sc-urges-
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The collegium has faced scathing attacks in the past for its opacity – a
trait that could make the functioning of the tribunal shallow and raise
questions of fairness. Similarly, the other possibility would be for the
Central Government to have a say in the appointment of judicial
members to the tribunal.61 This could also topple the precarious
relationship between the centre and state governments as it would
give the central government the power to hold sway over the judicial
members and in extension control the movement of elected members
across party lines through them. This could lead to situations where
the Central Government could potentially orchestrate the movement
of candidates across party lines to consolidate power in the ruling
party or coalition. Thus, the suggestion to replace the Speaker with an
independent tribunal is rather short-sighted and far more dangerous to
the constitutional fabric of separation of powers. The other alternative
that gained some traction was to grant the role to the Election
Commission – a quasi-judicial body consisting of three members. The
attractiveness of this alternative can be attributed to the perceived
neutrality and independence of the body.62 The Election Commission
is already tasked with determining the disqualification of members
under Section 8A of the Representation of People Act, 1951. Under
Section 8A, the Election Commission performs a judicial role as it
hears and determines cases on the allegations of corruption which are
automatically referred to it by the Governor or the President. 63 This
exhibits the capabilities of the Election Commission to replace the
role of the Speaker. However, the Commission, too, has recently been
rethink-of-speakers-disqualification-powers-why-plumping-for-impartial-tribunal-
to-deal-with-political-turncoats-is-no-panacea-7958231.html> accessed April 29
2020.
61
ibid.
62
Pardeep Sachdeva, ‘Combating Political Corruption: A Critique of Anti-Defection
Legislation’ (1989) 50 Indian Journal of Political Science 157.
63
Bhavdeep Kang, ‘We Can Rule on Defectors, Instead of the Speaker’ (Outlook,
30 March 1998) <https://www.outlookindia.com/magazine/story/we-can-rule-on-
defectors-instead-of-the-speaker/205283> accessed April 25 2020.
346
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Anoop Baranwal v. Union of India,69 which sought to replace it with a
system resembling the collegium or an independent selection
committee. This matter was referred to a five-judge bench and is
pending before the court.70 Hence, giving the Election Commission
the power to determine matters of defection also poses its own set of
challenges ranging from issues of bias to the interference of the
executive. Thus, one can only conclusively determine the efficacy of
replacing the Speaker with the Election Commission after the
Supreme court decides on these issues.
Alternatives which envisage the Election Commission and executive
working together have also been put forth. The 170th Law
Commission Report on Electoral Reforms seemed to favour the role
of the Election Commission in providing advisory assistance to the
President and the Governors by giving them its independent advice. 71
It was proposed that the advice would be furnished by the Election
Commission after adhering to all the principles of natural justice. 72
Finally, by leaving the final decision to the discretion of the President
or Governor as the case may be, it would keep the matters of
disqualification strictly within the realm of political actors. This was
proposed to legitimize the opinions of the Election Commission.
However, this recommendation, too, is problematic due to the
interference of the executive with the legislature owing to the fact that
the executive positions such as that of the Prime Minister and the
Council of Ministers are filled by members of the legislature. The
argument for separation between their functions finds support in the
69
WP (C) 104/2015.
70
Mehal Jain, ‘SC Refers Plea to Make Independent Collegium to Recommend
Names for Appointment of Election Commissioners to Constitution Bench’ (Live
Law, 23 October 2018) <https://www.livelaw.in/breaking-sc-refers-plea-to-make-
independent-collegium-to-recommend-names-for-appointment-of-election-
commissioners-to-constitution-bench/> accessed 10 July 2020.
71
Law Commission, Reform of the Electoral Laws (Law Com No 170, 1999) para
1.3.3.1.
72
Law Commission, Electoral Reforms (Law Com No 255, 2015) para 5.19.5.
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73
‘Constituent Assembly of India Debates (Proceedings) - Volume VIII’
(Constitution of India)
<https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/194
9-06-14> accessed on 10 July 2020.
74
ibid.
75
Shashank Krishna, ‘Separation of Powers in the Indian Constitution; Why the
Supreme Court was Right in Intervening in the Jharkhand; Imbroglio’ (2006) 18(2)
Student Bar Review 13.
76
Anirudh Burman, ‘The Anti-Defection Law – Intent and Impact’ (PRS Blog, 23
November 2009)
<https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/137058307
7_Anti-Defection%20Law.pdf> accessed 10 July 2020.
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the positions of their counterparts in other countries to be safeguarded
against partisan behaviour. Drawing from the best practices of these
more developed democracies, the office of the Speaker demands an
immediate overhaul. Drawing inspiration from the model of the
United Kingdom and Ireland, the Speakers could be mandated to
resign from their political parties to demonstrate their unbiased
nature. Further, they could be barred from holding any political office
post-retirement as well. While maintaining the position of a neutral
arbiter of issues, the Speaker should also be allowed to function like a
normal member of parliament, to deal with the issues of their
constituency, as is the case in the United Kingdom. Adopting at least
some of these measures would bring about a structural change in the
role of the Speaker and make it more neutral and hence, an effective
adjudicator. However, one must also be wary that mere rules cannot
ensure neutrality. These rules would be effective to take the
individual out of the party but would not ensure they are freed of
ideologies and biases they subscribe to.77 What is important is not
whether the Speaker has political affiliations but whether they can
distinguish them from their duty to the parliament. 78 Hence, requiring
the Speaker to quit their political party or renounce politics is to
emphasize form over substance. 79 These reforms cannot be
implemented overnight and would require a holistic change in the
political environment. These values of neutrality and non-partisanship
can only be inculcated into the system through a change in the
political practices themselves.
77
Stanley Bach, ‘The Office of Speaker in Comparative Perspective’ (1999) 5(3)
The Journal of Legislative Studies 209.
78
ibid.
79
Matthew Laban, ‘More Westminster than Westminster? The Office of Speaker
Across the Commonwealth’, (2014) 20(2) The Journal of Legislative Studies 143,
244.
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VI. CONCLUSION
The urgent need to overhaul and reform the role of the Speaker in the
anti-defection laws is justified as it seeks to prevent the continuing
mockery of the electoral mandate. The recent judgement by the apex
court in Keisham Meghachandra Singh, wherein the Speaker resorted
to the time-tested tactic of delaying the disqualification brought this
issue to the forefront yet again. Many have suggested taking the rather
radical route of doing away with defection laws, however, owing to
the political culture in India only being in the nascent stages - it is
imperative that we retain the anti-defection laws. Therefore, the usage
of anti-defection laws by political parties in India plays the role of a
coercive method to retain elected members within the confines of the
party. This is however in stark contrast to the party cohesion that is
often the defining feature in most advanced democracies in the world
such as the United Kingdoms.80 Party cohesion is built on a deep-
rooted loyalty of the elected members towards the policies,
programmes or ideologies of a political party. This is, however,
severely lacking in India as is observed from the unprincipled and
ideologically inconsistent defections that have been plaguing the
Indian polity. Hence, the reliance on anti-defection law can only be
reduced upon a successful venture by the Indian polity to inculcate a
sense of party cohesion within the party cadre. In the unlikely
situation that this succeeds - political parties could maintain party
discipline through in-built principles and conventions rather than
relying on coercive legislations such as the anti-defection law.
Therefore, due to the absence of party cohesion and unwavering
loyalty towards amassing riches and power over loyalty towards a
political ideology or programme, India will have to pin its hopes on
the defection laws to attain the same results.
80
Kenneth Janda, ‘Laws Against Party Switching, Defecting, or Floor Crossing in
National Parliaments’ (2009) Northwestern University 2/2009
<http://www.partylaw.leidenuniv.nl/uploads/wp0209.pdf> accessed 20 June 2020.
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CHARITH REDDY & FOR LAWS MAY COME & LAWS
SHAGUN BHARGAVA MAY GO, BUT DEFECTIONS GO ON
FOREVER
As discussed, every recommendation poses unique and significant
problems that range from hindering the delicate and precarious
separation of powers to the unwanted interference by other politically
vested entities. However, while looking for alternatives it is important
to grasp the complex nature of the problem which is essentially
political. Hence, as reiterated earlier, resorting to legislative and legal
reforms to remedy a political issue is often nothing but a piecemeal
measure. However, given the difficulty and complexity of instilling
the desired political culture, it is evident that it cannot happen
overnight. Until such significant political changes take place, India
will have to work within the confines of the anti-defection laws that
are currently in use. As highlighted earlier the least intrusive method
to do so would be to strengthen the role of the Speaker itself. To this
end the initiative by the Supreme Court to curb the abuse of powers
by the Speaker is to be lauded and is a welcome first step especially in
the absence of other meaningful alternatives.
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