Anti-defection law [1] (also known as the 10th schedule) was included in the constitution by the 52nd Amendment Act of 1985. [2]

The major goal of this act was to keep governments stable and protect them. The legislation specified that any Member of Parliament (MP) or Member of a State Assembly (MLA) would be removed from its position if he/she don't go as per the directives by the party they are members of.

It was introduced after Political parties have been plagued by horse-trading and corruption after one of the key occurrences happened after the 1967 elections when about 142 MPs and 1900 MLAs switched political parties.

This schedule was put in place to ensure political stability. The intention was to attain constitutional righteousness, but the result has been negative. This measure has several flaws, the majority of which harm constitutional systems at their core. [3]

To understand the below instance, we need to know a few paragraphs that were there in the 10th schedule.

Paragraph 6 [4] of this schedule states that the question of disqualification of a member of the house arises as per the disqualification mentioned under the schedule. This question will be referred to the chairman or the speaker of such house to decide and the decision by him/her will be final.

There used to be a paragraph 7 [5] which said that No court will have any jurisdiction in the matter connected with the disqualification of a member from a house but was declared invalid after the case of Kihoto Hollohon v Zachilhu (1992) [6] in which ratification was asked as per the majority.

Instance:
Speaker Taking Advantage Of His Power
Paragraph 6 has been criticized many times and led to an unconstitutional instance.

In the case of the 2017 Legislative Assembly elections in Manipur, Majority was not there, after the elections to any of the parties. Congress was having more seats than BJP. Few members of Congress joined BJP to help them to make the coalition Government but they continue to sit in the opposition and vote for the ruling party (BJP).

Applications for the act of defection against members who joined the BJP to make a government and still sitting in with opposition (with their previous party i.e. Congress) and voting for ruling party violating 10th schedule was made to the speaker.

Speaker didn't hear the applications after which Congress went for judicial interference (Keisham Meghachandra Singh v The Hon'ble Speaker Manipur Legislative Assembly & Ors (2020))[7] but the speaker still ignored the judicial review of the Supreme Court and only penalized an MLA and left others. To get the remedy, congress moved to Manipur High court where it was decided that defected members are barred from voting in the Rajya Shaba election. A walk was outdone by an MLA.

The walkout by an MLA was a significant move and recognized by the Speaker. Speaker looked into the high court petitions for disqualification and cleared 3 MLAs who didn't go back to Congress. They were allowed to vote by the speaker. As a result, the speaker continued the political agenda, not only misusing the office he holds but also disregarding the judgment of the High court. This all happened because the speaker was biased towards his/her party.

The duty of being neutral as a Speaker was not performed in the above instance and also misused the power of his role as a speaker mentioned in the 10th schedule.

Suggestions:

• The power given to a chairman or speaker of the house is given absolute power which was violated by the speaker in the above instance
• Dinesh Goswami Committee (1990)[1] on electoral reform suggested that the adjudicatory process should be moved instead of house to outside of the house.
• Election Commission also suggested that the President/ Governor should decide on the 10th schedule with the advice of the Election commission.[2]
• The Supreme Court for the above instance also suggested that a tribunal permanently must be made just for cases of defection, headed by a retired judge.

End-Notes:

1. The Indian constitution Tenth Schedule
2. Roshni Sinha and Prachi Kaur, Anti-Defection Law - Intent And Impact (PRS Legislative Research 2019)
3. Chakshu Roy, 'The Anti-Defection Law Has Failed. It Is Time To Scrap It | Opinion' (Hindustan Times, 2020)
4. The Indian constitution Tenth Schedule, ¶ 6
5. The Indian constitution Tenth Schedule, ¶ 7
6. Kihoto Hollohon v Zachilhu , (1992) SCC 309
7. Keisham Meghachandra Singh v The Hon'ble Speaker Manipur Legislative Assembly & Ors ,(2020) SCC OnLine SC 55
8. Sinha R. and Kaur P., Anti-Defection Law - Intent And Impact (PRS Legislative Research 2019) accessed 6 February 2022.
9. Chakshu R., 'The Anti-Defection Law Has Failed. It Is Time To Scrap It | Opinion' (Hindustan Times, 2020) accessed 6 February 2022.
10. The Anti-Defection Law – Intent And Impact (PRS Legislative Research 2009) accessed 6 February 2022.