Anti-defection law and the Telangana Speaker

Transcript:

Hello everyone and welcome to SCO’s channel. I’m Spandana. Today we’ll be discussing a subject that is both old and new: the anti-defection law of India. Recently, on 31 July, the Supreme Court directed the speaker of the Telangana Legislative Assembly to decide within three months, on disqualification. Petitions concerning 10 members from the Bharat Rashtra Samati (BRS party). The Court reiterated that the Speaker acts as a Tribunal in adjudicatory proceedings. Therefore, he does not enjoy the immunity provided for an Officer under Article 212 for ”regulating procedure or the conduct of business, or for maintaining order” in the House.

Disqualification petitions were filed, but the Speaker, who belongs to the ruling Congress Party, didn’t take any action. A single-judge Bench of the Telangana High Court had asked the Speaker to fix a hearing within four weeks. But later a Division Bench of the High Court reversed that order. Now, anti-defection law was added to the Constitution as the Tenth Schedule in 1985. The Congress had won 401 seats in the Lok Sabha the previous year, riding on the wave of sympathy in the wake of Indira Gandhi’s assassination in 1984. The government had introduced the amendment to maintain stability. Since then, the Supreme Court has been called upon several times to determine how long the Speaker can sit on disqualification petitions. In this context, a key legal principle that has evolved is that of quia timet. This refers to action taken to prevent future harm or injury. The party that seeks to compel the Speaker to take up disqualification petitions deploys this doctrine to argue that the Court can review a Speaker’s non-action, too.

Back in 1992, in Kihoto Hollohan vs Zachillhu, the court had held that judicial review was not available before the Speaker took a call, effectively ruling out quia timet actions. But that decision didn’t say anything about the timeline within which a Speaker must act. In practice, however, speakers let defection petitions languished till the end of the Assembly’s term. Noticing this, the Court changed tracks. In fact, in 2007, in Rajendra Singh Rana vs Swami Prasad Maurya, the Court stepped into the Speaker’s shoes and disqualified MLAs in Uttar Pradesh. Later, in Shesham Mahendragat Singh vs Speaker of the Manipur Legislative Assembly, the Court reinterpreted Kihoto Hollanan to say that the bar on quia timet actions only apply to judicial orders preventing the speaker from acting, not to orders that compel a timely decision. In the present Telangana case, the Court followed the precedent of Keisham Meghachandra but did not go as far as Rajendra Singh Rana.

It concluded that Kihoto Hollahan did not, in any manner, interdict judicial review in aid of the Speaker arriving at prompt decision as to disqualification. The Court also relied on Subhash Desai vs Principal Secretary Governor of Maharashtra or the Shiv Sena anti defection case where it had said that the Speaker must decide petitions within a reasonable period. It justified its choice not to take matters into its own hands by noting that the line of decisions from Kihoto Hollohan to Subhash Desai had consistently held the Speaker to be the authority at the first instance.

But in the same breath, however, the Bench suggested that Parliament consider the prudence of entrusting the Speaker or Chairman of the House with the task of deciding disqualification petitions. It also noted that its three-month stipulation to the Telangana speaker was to counter the criticism of “operation successful, patient died,” a clear reference to some of the commentaries that followed its verdict in the Shiv Sena case. My colleague V. Venkatesan, who covered the judgment on Thursday, told me that a counsel had commended the Bench for ensuring that in this case the “patient was not dead.” Indeed, the verdict represents a step forward from the amorphous “reasonable period” formulation in Subhash Desai. But does it go far enough? The petitions have been pending before the Telangana Speaker for 16 months. Now granting three more months to render a decision that is likely to be judicially challenged again risks further stretching out the timeline.

Yes, the patient is not dead, but it does feel as though they have not regained consciousness fully post surgery. What do you think about this decision and anti defection law in India? Tell us in the comments below.

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