The recent Supreme Court judgement ordering the Parliament to review the unbridled power of the Presiding Officers in deciding disqualification pleas against lawmakers.

The case: 

  • The BJP lawmaker and Forest Minister in Manipur, Th Shyamkumar, had won the Assembly election on a Congress ticket and later joined the BJP. Speaker remains undecided on the plea of disqualification, leading the pleader to knock the doors of the Supreme Court.


  • In Kihoto Hollohan case 1992, the SC held that Courts have no power to intervene in the Anti Defection Law cases during the adjudication stage i.e. till the issue remains undecided by the Presiding Officer.
  • The judgement inter alia had brought the decision of the Presiding Officer subject to Judicial review on certain grounds like perversity, malafide etc.
  • In S.A. Sampath case 2016, the SC referred the matter, of inordinate delay by Speakers to pass an order, to a larger bench.

Issues involved

  • The Anti Defection law does not have an immediate and automatic effect on the defectors. It empowers the Presiding officer to decide on the disqualification, on a petition filed by a lawmaker.
  • Speakers are themselves, members of the ruling party, hence acting objectively in ADL cases becomes difficult for them owing to party politics.
  • Moreover, there is no timeframe on passing order against the defecting lawmakers which means:
  1. The MPs/MLAs from the Opposition Parties can switch the floor of the House towards the Majority Party, immediately after their respective Party’s loss in an election, without being disqualified in the short run.
  2. The Speaker can simply keep the plea of disqualification pending, till being nudged by the Higher Judiciary and even beyond.
  3. The Judiciary can not intervene authoritatively till an order is passed by the Speaker. given the shield provided to the Speaker in the Kihoto Hollohan case.
  4. Defectors continue to hold voting powers in the Assembly and the Parliamentary Privileges, despite this being in clear violation of the basic idea of Representative Democracy.
  5. Political chaos and ‘midnight coup’ in States on a regular basis. 
  6. It defeats the entire purpose of having an Anti-Defection Law.

Supreme Court Judgement

  • It directed the Parliament to consider having an Independent Mechanism or some sort of Permanent body/tribunal, instead of the Speaker, to decide on the disqualification plea, which will be devoid of party bias.
  • It also held that Presiding Officers can’t sit on the petitions indefinitely and that they must pass an order in a reasonable time-frame.
  • If the Speaker takes undue time in passing an order, the Court will indeed have the power to intervene. This effectively means a clear departure from its judgement in the Kihoto Hollohan case.

Way Forward

  • It's time the Parliament amend the Tenth Schedule to provide for an independent Tribunal for each State, possibly headed by a High Court Judge, to put a lid on frequent cases of defections.
  • This will preserve the sanctity of Speaker’s Office by doing away with the partisan approach of the Speaker in defection cases.
  • There is also a need to relook the whole gamut of the Anti Defection Law so as to make a clear distinction between defection and dissent by a lawmaker on issues like national interest, giving them the much-needed leeway to express themselves objectively on the floor of the House. 

Also readDilemma Of Karnataka Politics & Anti-Defection Law

Anti-Defection Law: What Can Disqualify A Legislator

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