Presiding officers and the anti defection law

The first principle

A legislature is a contest between parties, so it needs an umpire whom both sides trust; the Speaker is that umpire, and the House works only as well as the Speaker is seen to be fair. The anti defection law was meant to protect the voter's choice from being sold after an election, but it gave the umpire the power to decide who stays in the game. Every debate in this note, from the Deputy Speaker's vacancy to proposals for an independent tribunal, comes back to one question: how to keep an elected, party backed presiding officer neutral when the stakes are a government's survival.

The core

The Speaker under the Constitution

• Election and tenure. Under Article 93 the Lok Sabha "shall" choose two of its members as Speaker and Deputy Speaker. The Speaker holds office for the life of the House and, on dissolution, continues until just before the new House first meets (Article 94).
• Removal. The Speaker can be removed by a resolution passed by a majority of all the then members of the House, after 14 days' notice (Article 94(c)). While such a resolution is under consideration the Speaker cannot preside, but may speak and vote in the first instance (Article 96).
• Independence. The Speaker's salary is fixed by law under Article 97 and charged on the Consolidated Fund of India, so it is not voted (Article 112(3)), and the Speaker's rulings on procedure cannot be questioned in court (Article 122).

Powers of the Speaker

• Order and business. The Speaker keeps order, interprets the rules, decides who speaks, and can name a member for misconduct or adjourn the House for grave disorder.
• Votes and quorum. The Speaker does not vote in the first instance but has a casting vote in a tie (Article 100), and suspends the sitting if the quorum of one tenth of members is lacking.
• Money and joint sittings. The Speaker alone certifies whether a Bill is a money Bill (Article 110(3)) and presides over a joint sitting of the two Houses (Article 118(4)).
• Committees and defection. The Speaker appoints chairpersons of Lok Sabha committees, chairs the Business Advisory Committee and the Rules Committee, and decides disqualification petitions under the Tenth Schedule.

The Deputy Speaker

• Role. The Deputy Speaker presides when the Speaker is absent and acts as Speaker when the office is vacant (Article 95). By convention since the 1990s, the post has usually gone to the Opposition, which gives the Opposition a stake in the chair.
• The vacancy. No Deputy Speaker was elected for the entire 17th Lok Sabha (2019 to 2024), even though Article 93 says the House "shall" choose one. The Constitution fixes no deadline, so the vacancy could not be easily challenged, but it left the House without a constitutional office it is required to fill.

The anti defection law

• Origin. Frequent floor crossing in the late 1960s, captured in the phrase "Aaya Ram Gaya Ram", led to the Fifty second Amendment (1985), which added the Tenth Schedule.
• Grounds of disqualification. A member is disqualified for voluntarily giving up membership of the party, or for voting or abstaining contrary to the party's direction without permission, unless the party condones it within 15 days. An independent member is disqualified for joining a party, and a nominated member for joining one after six months.
• Exceptions. The original law protected a "split" by one third of a legislature party. The Ninety first Amendment (2003) deleted this, so the only exception now is a merger agreed to by two thirds of the legislature party. The same amendment capped the Council of Ministers at 15 per cent of the strength of the Lok Sabha or Assembly and barred defectors from holding ministerial or remunerative political posts until re elected.
• Who decides. The Speaker or Chairman of the House decides disqualification petitions.

Dimensions

What the courts have said

• Kihoto Hollohan v Zachillhu (1992). The Court upheld the Tenth Schedule but held that the Speaker, when deciding disqualification, acts as a tribunal, so the decision is open to judicial review on grounds such as mala fides, breach of natural justice and perversity. Paragraph 7, which barred courts, was struck down.
• Ravi S. Naik v Union of India (1994). "Voluntarily giving up membership" need not be a formal resignation; it can be inferred from a member's conduct, such as openly working with a rival party against one's own.
• Nabam Rebia (2016). A Speaker facing a notice for removal should not decide disqualification petitions, since the outcome could decide the Speaker's own survival.
• Keisham Meghachandra Singh (2020). Disqualification petitions should be decided within three months save in exceptional circumstances, and Parliament should consider replacing the Speaker with an independent tribunal of retired judges.
• Subhash Desai v Principal Secretary, Governor of Maharashtra (May 2023). The Court held that the Speaker, not the Court, must decide the disqualification petitions, that the Governor had no objective material to call a floor test, and that the whip is appointed by the political party, not by the legislature party. The Nabam Rebia point was referred to a larger bench.

Political dimension

• Partisan vulnerability. The Speaker is elected on a party ticket and usually hopes to return to party politics, yet decides cases that can make or break a government. Delays in deciding petitions, or quick decisions that suit the ruling side, have shaped governments in several states, which is why the courts have stepped in with time limits.
• Stability against freedom. The law has reduced open floor crossing, but defections now happen through mass resignations or engineered mergers, while ordinary members have lost the freedom to vote by conscience on any Bill.

In practice

Once a Speaker, always a Speaker

• The British convention. In the United Kingdom the Speaker resigns from the party on election, does not take part in party politics again, and by tradition the main parties do not contest the Speaker's seat at a general election. The Speaker is usually re elected by the House as long as he or she wishes to serve.
• Indian experience. N. Sanjiva Reddy resigned from his party when elected Speaker in 1967, but the practice did not take root. In 2008 Somnath Chatterjee was expelled by his party for refusing to resign as Speaker before a confidence vote, which shows both the pull of party and the value of a Speaker who refuses it.
• Implications. Adopting the convention would strengthen the Speaker's neutrality and the Opposition's trust in the chair. Against it, voters in the Speaker's constituency would lose a party representative, Indian parties may not honour an uncontested seat, and in a fragmented House the convention could be used to entrench a partisan Speaker. It works in Britain because it rests on long political trust, which a law cannot create by itself.

Presiding officers of state legislatures

• Order. Speakers and Chairmen of state legislatures (Articles 178 to 189) apply their House's Rules of Procedure: they can name a member, suspend members for disorder, and use marshals to remove those who defy the chair. In Ashish Shelar v Maharashtra Legislative Assembly (2022) the Supreme Court held that suspending members for a full year, beyond the session, was unconstitutional.
• Impartiality and business. Through the Business Advisory Committee the presiding officer allots time with all parties, and a fair allocation of time to the Opposition is the clearest test of impartiality.
• Best practice. The All India Presiding Officers Conference, held since 1921, is the forum where presiding officers share practices on conduct of business, discipline and committee work.

Issues and way forward

• Who should decide defection. The Dinesh Goswami Committee (1990) recommended that disqualification be decided by the President or Governor on the advice of the Election Commission, and the Election Commission has made the same proposal. The Keisham judgement (2020) suggested an independent tribunal.
• Narrowing the law. The Law Commission's 170th Report (1999) recommended deleting the split and merger exceptions and that parties limit whips to votes in which the government's survival is at stake. Limiting disqualification to confidence and money votes, as the Goswami Committee also proposed for confidence votes, would free members on other matters.
• Making the chair neutral. Proposals include the Speaker resigning from the party on election, an independent secretariat, filling the Deputy Speaker's post with an Opposition member within a fixed time, and a time limit for disqualification petitions written into the Tenth Schedule.

Common confusions

• Split and merger. A split (one third) is no longer protected since 2003; only a merger approved by two thirds of the legislature party escapes disqualification.
• Political party and legislature party. The legislature party is the group of members in the House; the political party is the organisation outside. Subhash Desai held that the whip comes from the political party.
• Speaker as presiding officer and as tribunal. On procedure, the Speaker's rulings are shielded from courts by Article 122; on disqualification, the Speaker acts as a tribunal and the decision can be reviewed.
• Removal notice and removal. A notice of removal does not remove the Speaker; it only bars him or her from presiding while the resolution is considered.

For the exam

• Keyword bank: Speaker, Article 93, casting vote, money Bill certificate, Deputy Speaker vacancy, Tenth Schedule, voluntarily giving up membership, party whip, merger exception, Kihoto Hollohan, Keisham Meghachandra Singh, Subhash Desai, once a Speaker always a Speaker, Dinesh Goswami Committee, independent tribunal.
• Practise the previous year questions on this topic →
• Use in an answer:
  • Introduction with data: "The 17th Lok Sabha completed its full term from 2019 to 2024 without a Deputy Speaker, although Article 93 says the House shall choose one."
  • Introduction with a judgement: "In Keisham Meghachandra Singh (2020) the Supreme Court asked Parliament to consider whether a Speaker who belongs to a party should remain the sole judge of defection."
  • Conclusion: "The Speaker's authority rests on trust, and that trust is best secured by taking defection cases away from the chair and giving the Opposition a real share of the House's offices."
  • Conclusion: "A narrower anti defection law, applied by an independent body within fixed time, would protect both the stability of governments and the freedom of members to legislate."