The political developments in Maharashtra have turned the spotlight on the Anti-Defection Act. Enacted in 1985, this Act was considered important enough to be included in the Constitution and was appended as its Tenth Schedule. Ever since its enactment, some of the maneuvers concerning MLAs have brought the Speaker’s role into sharper focus. A Speaker occupies a pivotal position, being the guardian of rights and privileges of the House and at the same time, he is also responsible for administering the Act. It is the Speaker who has to decide on defections, splits, or mergers. This also explains the widespread clamor amongst the coalition partners to first secure the office of the Speaker for their own party. Over a period of time, some of the occupants of this chair have hardly done justice to the exalted office they occupied. This compelled the Supreme Court while delivering a judgment, to ask Parliament, “Have a rethink whether disqualification petitions ought to be entrusted to a Speaker, as a quasi-judicial authority, when such a Speaker continues to belong to a political party de jure or de facto.”
Exploiting this loophole, the Speaker can allow a defector to enjoy the fruits of defection, besides giving a reprieve to the party in power.
In this context, the prophetic words of BR Ambedkar at the time of the dedication of the Constitution to the people, on the last day of the Constituent Assembly, are still relevant. He had said, “Howsoever good a Constitution may be, it is sure to turn out bad if the people who work it are a bad lot. On the other hand, howsoever bad it may be, if the people who work on it are good, it may still turn out to be good.” The current state of proceedings in some of our Assemblies may be a manifestation of these prophetic words.
At times, the partisan role played by some Speakers due to a conflict of interest is very visible. On several occasions, their bias in favor of a political party has led to malpractices, violations of the Constitution, and prolonged political instability in a state, impacting administration in general. A major weakness of the Act is that no time limit has been prescribed for the Speaker to take a decision. Exploiting this loophole and not deciding on the petition, the Speaker can allow a defector to enjoy the fruits of defection, besides giving a reprieve to the party in power. In one such case from Manipur, the Speaker had not decided the petition for over two years, whereupon the Supreme Court intervened and passed an order removing the defector from the Cabinet and also barring his entry to the Assembly for a brief period.
While the law is the same, its application keeps changing from time to time and from one Speaker to the other. In the Manipur case, the Speaker had kept sitting over the petition while in another case, the Speaker decided the matter in a great hurry without following the procedures, leading to an adverse comment of “hot haste” from the Supreme Court. In yet another case, a Speaker who happened to be from a different political party offered to review the order of the previous Speaker, which was against the letter and spirit of the apex court judgment, according to which the Speaker had no power of review, once the order was issued. Such orders could be reviewed only by a judicial authority.
Kihoto Hollohan vs Zachillhu and others was the first case decided by the Supreme Court under the Anti-Defection Act in which high standards were set for the Speaker to enable him to take far-reaching decisions for the functioning of the parliamentary democracy. While a section of this law was declared ultra vires, the judges, in minority, perhaps could perceptively foresee the future state of affairs and went on to say, “Giving the power of ad- judication to the Speaker was against the basic structure of the Constitution, being against the separation of powers between the legislature, judiciary, and the executive.” It was contemplated that such disputes should be referred to an independent authority. Later, this view was supported by the former CJI Venkatachaliah, while chairing the commission to review the working of the Constitution. On the other hand, while deciding this very case as the CJI, he was on the other side Clearly.
