Since Mukul Roy left the Bharatiya Janata Party to rejoin the Trinamool Congress in June, the West Bengal unit of BJP has been trying to get him disqualified from the state Assembly under the anti-defection law. His disqualification petition has been pending before the speaker of the Bengal assembly since July 2021. Though the BJP has approached the Calcutta High Court and the Supreme Court, that has not yet led to Roy being removed from the house.

Instances like these are common. The anti-defection law – which penalises individual legislators for leaving one party to join another – is now frequently undermined by the fact that that partisan speakers simply sit on disqualification decisions.

While the Constitution initially barred the judiciary from looking into matters relating to disqualifications, the courts have carved out a few exceptions. They have also laid down an indicative timeline of three months within which the speaker should decide on a disqualification petition. However, this has not helped much, since many disqualification petitions are kept pending before the speaker, with courts still reluctant to look into most cases.

What is happening in the Mukul Roy case?

Mukul Roy was elected on a Bharatiya Janata Party ticket to the West Bengal assembly in May. The next month, he switched to the Trinamool Congress. In July, he was appointed chairman of the assembly’s public accounts committee.

The Opposition is claiming two things: first, that he cannot be the chairman of the public accounts committee since that post has always been reserved for an Opposition member, whereas Roy is now a member of the ruling party. The second is that he ought to be disqualified under the Tenth Schedule of the Constitution or the anti-defection law.

The Calcutta High Court on September 28 asked the speaker of the Bengal assembly to place on record the decision taken for Roy’s disqualification petition by October 7, the date of the next hearing. It also observed that the petition has been pending for more than three months, the maximum prescribed time as per the Supreme Court’s decision inKeisham Meghachandra Singh v The Hon’ble Speaker Manipur from 2020. The court will then proceed on the second issue: his appointment as the chairman of the accounts committee.

However, before the High Court could hear the matter, the speaker moved the Supreme Court against the High Court order. On November 22, the Supreme Court asked the speaker to decide the matter relating to the disqualification expeditiously and has listed the matter next in January.

The Bengal speaker is supposed to take up the disqualification petition on December 21.

BJP MLAs led by Leader of Opposition in West Bengal Suvendu Adhikari met Governor Jagdeep Dhankhar on July 13 to apprise him on Mukul Roy's appointment as chairman of public accounts committee. Credit: Jagdeep Dhankhar/Twitter.

What is the constitutional provision on defections?

The Tenth Schedule of the Constitution, inserted in 1985, deals with defections both at the Central and state level. It says that a member of the house shall be disqualified from being its member if, after getting elected, she gives up the membership of their party or join another political party. She will also be disqualified if she votes or abstains from voting in contradiction to the direction issued by the party.

The only exception to the law is if two-thirds of a legislative party decides to defect en masse.

The schedule also says that the question of whether a legislator is disqualified because of defection has to be referred to the speaker or the chairman of the house, whose decision shall be final. The jurisdiction of the courts was completely barred as per this schedule. However, in 1992 the Supreme Court held that judicial review, though limited, is permitted in cases where the speaker has decided on a member’s disqualification on account of defection.

When can courts interfere in defection matters?

The courts have carved out certain exceptions to when it can go into the workings of a legislature. A five-judge constitutional bench of the Supreme Court in 1992 held that the proceedings before the speaker under the Tenth Schedule are akin to a tribunal, and thus, it can be placed under judicial review.

When the speaker has decided on the matter, it can be reviewed by the courts on four grounds. The first is if the order is passed without following principles of natural justice, such as not letting the other party present their case and the judge being the judge in their own cause. The second is if the decision is unconstitutional. The third is if the order is mala fide – if it is passed in bad faith. And the fourth is if the order is perverse, which means if it is passed on “no evidence, or thoroughly unreliable evidence, and no reasonable person would act upon it”.

However, this leaves a grey area: what happens if a matter is pending before the speaker? The 1992 judgment said that “judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman”.

Are there other instances of keeping disqualification petitions pending?

Politicians have been quick to take advantage of this legal grey area. Keeping disqualification petitions pending ensures that the legislator can continue functioning, even though he has defected. Since the speaker has the full discretion on deciding on defections, and they are mostly from the ruling party, legislators who have defected to the ruling party can continue being a member of the house if these petitions are kept pending.

There have been instances of disqualification petitions being pending for a long time, sometimes years.

In 2017, the main Opposition party in Andhra Pradesh boycotted the Assembly, angry that 20 of their MLAs, who had defected a year and a half ago, had still not had their petitions heard by the speaker.

In the previous Telangana assembly, the speaker simply sat on 26 defections over years. In the end, the house was itself dissolved in 2018, with the state going for elections with the defectors remaining unpunished.

In July 2019, 10 out of 15 Congress legislators in the Goa Assembly defected to the Bharatiya Janata Party. Their disqualification petition was kept pending, with the speaker finally decided on their disqualification in April and only after the Supreme Court nudged him to decide the matter.

The disqualification petition against the Manipur legislator Thounaojam Shyamkumar Singh, who defected from the Congress to the Bharatiya Janata Party, had been pending for three years in 2020, after which he himself resigned. This was only because the Supreme Court barred him from entering the Assembly and removed him as a minister, since the Manipur Speaker did not decide on the petition even after the court directed it to do so.

As of October, three disqualification petitions were pending in the Lok Sabha, according to a right to information query. Two of them are against Sunil Kumar Mondal and Sisir Adhikari, who defected from the Trinamool Congress to the Bharatiya Janata Party. Mondal’s disqualification plea has been pending since February while Adhikari’s disqualification plea has been pending since May.

The third petition is against K Raghu Rama Krishna Raju, a YSR Congress Party member, for allegedly airing anti-party views. This petition has been pending since July as per the right to information reply.

Is there a timeline to decide on pending petitions?

This undermining of the anti-defection law is due to the fact that there is no strict timeline for deciding defection petitions under it. In the case of Keisham Meghachandra Singh v The Hon’ble Speaker Manipur in 2020, the Supreme Court held that the decision should be made within a reasonable time period.

Further, the court said: “What is reasonable will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the Speaker must be decided.”

However, this three-month period is indicative in nature and is not strictly followed, even by courts. In July 2021, there was a plea that asked the Supreme Court to set up guidelines for timely disposal of disqualification petitions. One of the things the petitioners asked was for the court to set up a fixed time limit for the speaker to decide on defection matters. The bench led by Chief Justice NV Ramana remarked that this was something which is the Parliament’s domain and the court cannot fix time limits.

What can courts do in defections petitions pending before the speaker?

In the Keisham Meghachandra Singh case, the Supreme Court, in January 2020, gave the Manipur Speaker four weeks to decide on the disqualification petition against Manipur minister Thounaojam Shyamkumar Singh. The petition had been pending for three years when it came up before the Supreme Court in 2020. The speaker did not decide on it even after the Supreme Court’s order. In what was reported to be a first of a kind, in March 2020, the Supreme Court removed Singh as a minister and barred him from entering the Assembly. This led to Singh’s resignation from his membership of the Assembly.

However, this exception aside, courts are reluctant to get involved in the workings of the legislature. Take for instance the Mukul Roy case. Here, the petition before the West Bengal speaker was filed on June 17 but still hasn’t been decided six months later. During the hearings, the Supreme Court bench remarked: “There have been so many cases where there are delays by the Speaker and when such cases come to this court, we are told that you cannot pass any order till the Speaker decides. This has been the common experience.”

There have also been calls to take the power of deciding defections away from the speaker, since they are not an impartial party. In the Keisham Meghachandra Singh case, the court also said that Parliament must rethink “whether disqualification petitions ought to be entrusted to a Speaker” since they also belong to a particular political party. It further said that the current mechanism can be replaced by a “permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court, or some other outside independent mechanism to ensure that such disputes are decided both swiftly and impartially”.