Supreme Court judgement on Anti-defection law

In recent years, opposition MLAs in some states, such as Andhra Pradesh and Telangana, have broken away in small groups gradually to join the ruling party. In some of these cases, more than 2/3^rd of the opposition has defected to the ruling party. 

What is the purpose of the anti-defection law? What are the grounds of disqualification?

Articles 102 (2) and 191 (2) deals with anti-defection.The intention of the provision is to check the corruption/horse trading in parliament/ to check the popular phenomenon. 

The purpose, as is obvious, is to curb political defection by the legislators. There are two grounds on which a member of a legislature can be disqualified.

One, if the member voluntarily gives up the membership of the party, he shall be disqualified. Voluntarily giving up the membership is not the same as resigning from a party. Even without resigning, a legislator can be disqualified if by his conduct the Speaker/Chairman of the concerned House draws a reasonable inference that the member has voluntarily given up the membership of his party.

Second, if a legislator votes in the House against the direction of his party and his action is not condoned by his party, he can be disqualified. These are the two grounds on which a legislator can be disqualified from being a member of the House.

However, there is an exception that was provided in the law to protect the legislators from disqualification.

 The 10th Schedule says that if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.

Speaker/ chairman of the house is the authority to decide on defection cases. Speaker sits as a tribunal while deciding on defection cases. All proceedings in relation to any question on disqualification of a member of a House under this Schedule are deemed to be proceedings in Parliament or in the Legislature of a state. No court has any jurisdiction. However, the decision can be brought to court after Kihoto Hollohan case of 1992.

Issue :The Supreme Court on urged Parliament to take a call on setting up an independent tribunal to “swiftly and impartially” decide on the disqualification of lawmakers under the anti-defection law.

Observations by Supreme Court :

0)It is time that Parliament have a rethink on whether disqualification petitions ought to be entrusted to a Speaker as a quasi-judicial authority when such Speaker continues to belong to a particular political party either de jure or de facto,” said the bench comprising Justice Rohinton Fali Nariman, Justice Aniruddha Bose and Justice V. Rama-subramanian in their judgment

1)The court urged Parliament to “seriously consider” amending the Constitution to pave the way for a “permanent Tribunal” or “independent mechanism” to ensure that such disputes relating to disqualification of a lawmaker are decided both “swiftly and impartially”, thus giving “real teeth” to the provisions contained in the Tenth Schedule, which are “vital in the proper functioning of our democracy.”

2)The court said that independent mechanism could be headed by a retired SC judge or a retired Chief Justice of a High Court. Referring to the earlier judgments of the top court on disqualification of a lawmaker in breach of the anti-defection law, the SC said, “the Speaker is bound to decide disqualification petitions within a reasonable period. 

3)Suprem court asks Parliament to reconsider Speaker's power on disqualification of lawmakers. 

4)The Supreme Court has asked the Parliament to rethink whether a Speaker of the House should have the power to take a call on disqualification of legislators.

The issue came up before a Bench headed by Justice Rohinton Fali Nariman while deciding a petition regarding disqualification of Manipur Forest and Environment Minister T Shyamkumar