Anti-Defection Law: Broken Gavel or Broken System?

The Supreme Court of India, for what seems the umpteenth time, has once again been compelled to articulate its profound anguish over the partisan conduct of a Legislative Assembly Speaker. Its directive on July 31, 2025, pointedly reminding the Telangana Speaker of his constitutional duty to act on long-pending disqualification petitions, is not an isolated judicial outburst. It is the latest, and perhaps loudest, symptom of a chronic constitutional malaise that strikes at the heart of our representative democracy. The gavel of the Speaker, intended to be a symbol of impartial authority, is increasingly viewed as an instrument of the executive, wielded not to uphold the law but to subvert it. The recurring spectacle of judicial intervention to prod legislative functionaries into performing their basic duties exposes a deep institutional decay. 

The Supreme Court's recent prodding of Parliament to reconsider the Speaker's role under the anti-defection law is more than just a suggestion; it is a judicial indictment of a mechanism that has been systematically hollowed out from within. While the Tenth Schedule of the Constitution was conceived as a bulwark against the political opportunism that defined the "Aaya Ram, Gaya Ram" era, its enforcement has been so deeply compromised by the very authorities entrusted with its protection that it now risks becoming an instrument of the malady it was designed to cure. This editorial argues that incremental fixes are no longer sufficient; a fundamental reimagining of the disqualification process is essential to restore the credibility of both our legislatures and the anti-defection law itself. To achieve this, we will first dissect the flawed premise of the Speaker as a neutral tribunal, then catalogue the perils of the resultant partisanship, before exploring viable paths to reform that can salvage the spirit of this vital constitutional safeguard. 

The decision to vest the power of disqualification in the Speaker was not an accident but a deliberate choice made during the enactment of the 52nd Amendment in 1985. The legislative intent was rooted in a desire to preserve the autonomy of the legislature and uphold the principle of separation of powers. The thinking was that disqualification was an internal matter of the House, and its presiding officer, who is expected to function above party lines, was the most appropriate authority. This assumption of the Speaker’s non-partisanship, a noble convention borrowed from the Westminster model, was the original sin of the Tenth Schedule. Decades of experience have shown that this assumption has been tragically and comprehensively eroded. In India's fiercely competitive political landscape, the Speaker often remains a loyal member of their party, dependent on its majority for their position and future political career. This foundational flaw has rendered the mechanism vulnerable from its inception. 

This vulnerability was recognized, in part, by the Supreme Court in its landmark 1992 judgment in Kihoto Hollohan v. Zachillhu. The Court, in a pragmatic bargain, upheld the Speaker's role as the adjudicating tribunal but struck down Paragraph 7 of the Schedule, which had placed the Speaker’s decision beyond judicial scrutiny. By classifying the Speaker's function as quasi-judicial, the Court brought it under the purview of judicial review. For a time, this compromise seemed to work. However, political actors soon discovered a loophole that the judiciary had not fully plugged: delay. While the Court could review a decision, it could not force a Speaker to make one. This led to a new jurisprudence of judicial frustration. 

The evolution of the Court's stance on timeliness is telling. Initially reluctant to impose deadlines, citing the separation of powers, the judiciary grew increasingly interventionist as Speakers weaponized inaction. The breaking point came in the 2020 case of Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly. Expressing its dismay over a Speaker who had sat on disqualification petitions for years, the Court suggested that a "reasonable time" for deciding such pleas would be three months. This was a significant step, intended to act as a deterrent. Yet, as the recent Telangana episode demonstrates, even this has proven insufficient. The case serves as a perfect microcosm of the problem: a group of Bharat Rashtra Samithi (BRS) MLAs defect to the ruling party, petitions are filed, and the Speaker enters a state of calculated inertia. The delay allows the defectors to be co-opted, enjoy the perks of office, bolster the government's numbers, and participate in crucial legislative business, making a complete mockery of the Tenth Schedule. The Court's eventual intervention, coming months or years after the fact, is a post-mortem of a democracy already subverted. 

The theoretical flaw of vesting adjudicatory power in a political functionary has metastasized into a series of practical pathologies that have crippled the anti-defection law. The consequences of this arrangement are not abstract legal concerns; they have tangible and corrosive effects on governance and public faith. 

At the core of the problem lies an irreconcilable conflict of interest. The Speaker of a Legislative Assembly or the Lok Sabha is, in almost all cases, a member of the ruling party or coalition. Their election to the Speaker's chair and their continuation in it depends on the pleasure of the majority. To expect such a person to render an impartial verdict in a disqualification case that could potentially destabilize the very government that appointed them is to ask for a level of political asceticism that is rare, if not non-existent. When defectors join the treasury benches, the Speaker has a vested interest in protecting them. Conversely, when an opposition member is accused of defection, the incentive is to act swiftly to reduce the opposition's strength. This structural conflict makes a mockery of the legal maxim that no man shall be a judge in his own cause. 

Delay and Inaction as a Potent Political Weapon: The most insidious subversion of the Tenth Schedule is not through biased decisions, but through the deliberate absence of any decision at all. Delay is not a byproduct of a heavy workload; it is a calculated political strategy. By simply refusing to act on a disqualification petition, a Speaker grants defectors a "grace period" of impunity. During this period, which can last for years, the defectors—who have betrayed the mandate of their electorate—can be rewarded with ministerial berths, chairmanships of public undertakings, and other spoils of office. They participate in legislative debates and, most crucially, vote on critical legislation, including confidence motions and finance bills. A government that has lost its majority can thus survive illegitimately, propped up by legislators who should have been disqualified long ago. This tactic effectively neuters the law, turning it into a dead letter for the duration of the Assembly's term. 

The partisan nature of the office has led to a history of glaringly inconsistent decisions. There are numerous instances where Speakers have acted with breathtaking alacrity to disqualify opposition members or rebels within their own party who threaten the leadership. Petitions in such cases are often decided within weeks. In stark contrast, when legislators defect to the ruling party, disqualification petitions against them gather dust for years. The cases from Goa, Karnataka, Manipur, and more recently Maharashtra, have all featured Speakers adopting entirely different standards of urgency depending on which party stood to benefit. This selective application of the law destroys its credibility and reinforces the public perception that the Speaker's office is merely an extension of the ruling party's political apparatus. 

Ultimately, these pathologies combine to subvert the very soul of the anti-defection law. A law designed to deter unprincipled floor-crossing is now being used to facilitate it. Potential defectors are no longer fearful of immediate disqualification. Instead, they operate with the assurance that a friendly Speaker will provide them with a shield of inaction, allowing them to reap the rewards of their defection while their case languishes in procedural limbo. The law, far from promoting political stability and morality, has inadvertently created a perverse incentive structure. It encourages wholesale defections, often engineered by the ruling party, under the protective gaze of a partisan Speaker, a phenomenon some have dubbed "electoral larceny." 

The consistent failure of the current mechanism, underscored by the judiciary’s repeated and increasingly frustrated interventions, makes a compelling case for fundamental reform. The time for tinkering at the edges is over. Parliament must now seriously consider structural alternatives to restore the integrity of the disqualification process. 

The most potent and widely discussed solution, one explicitly hinted at by the Supreme Court in the Keisham Meghachandra Singh case, is the creation of a permanent, independent tribunal to decide disqualification cases. Such a body, established through a constitutional amendment, could be composed of retired Supreme Court or High Court judges, constitutional law experts, and other eminent, apolitical figures. Its mandate would be to decide defection cases in a time-bound manner, insulated from the political pressures of the legislative arena. This would not only ensure impartiality but also relieve the Speaker of a quasi-judicial burden they are ill-equipped to handle. While creating such a body would require political will and a constitutional amendment, it represents the cleanest break from the compromised system of today. 

Another viable alternative is to empower the Election Commission to adjudicate disqualification petitions under the Tenth Schedule. The ECI already possesses significant quasi-judicial experience, presiding over disputes related to party recognition and the allocation of symbols under the Symbols Order, 1968. As a permanent constitutional body, it is perceived to be more independent and insulated from day-to-day political pressures than the Speaker's office. The argument in its favour is that defection is ultimately an electoral issue—a betrayal of the voter's mandate—and the ECI is the natural custodian of electoral integrity. However, critics raise concerns about overburdening an already strained ECI and the risk of its own institutional credibility being eroded if it is drawn into frequent, high-stakes political battles. 

A less radical, though perhaps less effective, reform could involve strengthening the judiciary's power of review. While the Supreme Court has set a normative three-month deadline, it could be constitutionally or statutorily empowered to intervene directly if this deadline is breached without valid reason. For instance, the Court could be given the power to issue a writ of mandamus compelling a decision, or in exceptional cases of deliberate inaction, even assume jurisdiction and decide the matter itself. This approach, however, is fraught with its own difficulties, primarily concerning the doctrine of separation of powers. It would draw the judiciary deeper into the "political thicket," potentially setting up confrontations between the legislature and the judiciary, a situation all branches of government are traditionally keen to avoid. 

India is not alone in grappling with political defections. Other democracies offer useful models. Bangladesh, for instance, has an extremely strict anti-defection law where a member can be disqualified simply for voting against their party, with the Election Commission playing a key role. In Kenya, the power to declare a seat vacant rests with the Speaker, but it is contingent on a formal notification from the political party, and the process is subject to strict timelines and judicial oversight. While no foreign model can be imported wholesale, a comparative study can provide valuable insights into creating a more robust and impartial system tailored to India's needs. 

The Tenth Schedule of the Indian Constitution is at a critical juncture. Born of a desire to cleanse public life, it now stands tainted by the very partisanship it sought to eliminate. The office of the Speaker, once envisioned as a neutral umpire, has been effectively captured by political interests, rendering it incapable of enforcing the law with the impartiality it demands. The Supreme Court's repeated admonitions are not mere observations; they are a damning verdict on a constitutional experiment that has failed. The law's enforcement mechanism is broken, and its continued existence in this form is untenable. 

This is not an academic debate confined to the courtrooms and seminar halls of New Delhi. The integrity of our elections, the stability of state governments, and the faith of the common citizen in the democratic process are at stake. When voters elect a representative based on their party affiliation and platform, they have a right to expect that their mandate will be honoured for the full term. The current system allows this mandate to be stolen in broad daylight, with the Speaker acting as a willing accomplice. 

The Supreme Court has, through its judgments and observations, held up a mirror to Parliament. It is now incumbent upon our elected representatives to look into it and act. The time for incrementalism, for hoping that a convention of neutrality will miraculously re-emerge, is long past. Parliament has a constitutional obligation to undertake bold reform. The gavel has proven to be compromised; it is time to fully empower the gown, or to create a new, independent institution altogether. The Tenth Schedule was forged in the fire of political instability to uphold a higher standard of political morality. To allow it to be blunted by partisan interests is to betray its very purpose. Parliament now has a constitutional obligation to act, not just to heed the judiciary's call, but to restore the fading credibility of a law that is fundamental to the health of India's democracy. The question is no longer whether to reform, but how, and how soon.