Does the speaker of a legislature have the sole power to decide on defections? Or is this exercise subject to outside checks and balances?

This question has yet again surfaced in India as the state of Rajasthan faces a political crisis with the ruling Congress party facing a rebellion. Earlier this month, a section of party MLAs led by the deputy chief minister Sachin Pilot raised the banner of revolt against their party and government.

With CP Joshi, the speaker – a stalwart Congress politician – moving to initiate disqualification proceedings against the rebel MLAs, the Rajasthan High Court on Tuesday “requested” the speaker to delay proceedings by giving them more time to file their reply.

The move set off a political storm, with the speaker accusing the high court of precipitating a constitutional crisis.

Joshi in turn challenged the high court’s order in the Supreme Court on Thursday. However, the Supreme Court refused to stay the high court proceedings, arguing that rebel MLAs were a “voice of dissent” which “cannot be suppressed”.

This isn’t the first time a speaker has been accused of being partisan when it comes to deciding on defections. But this is the first time a court has stepped in, even before the speaker has taken a decision. Will a dilution of the powers of the speaker in this case be beneficial for democracy – or will it make the defection tangle even worse?

CP Joshi, the speaker of the Rajasthan assembly.

Defection drama

In Indian politics, MLAs going missing are an alarmingly common occurrence. On July 12, 19 Rajashthani Congress MLAs, led by Sachin Pilot, rebelling against their chief minister, secretly left their state and surfaced in Haryana (ruled, coincidentally, by the Bharatiya Janata Party).

The rest of the script was also familiar. On July 13, when the Congress held a meeting of its legislature party, the rebel MLAs remained AWOL. The same pattern was repeated on July 14. As a result, the Congress’ chief whip in the Rajasthan Assembly filed a complaint with the speaker, saying that the MLAs should be disqualified under the anti-defection law. The speaker in turn sent the rebel MLAs a notice asking them to explain their side of the story.

The anti-defection law, as the Tenth Schedule of the Indian Constitution is popularly known, was an amendment made by the Rajiv Gandhi government in 1985. The law made it mandatory for a legislator to follow the instructions of his party when voting in the house. In other words, it barred the act of defection or a legislator joining or voting with any other party but his own. While defection exists in all democracies, by barring it using a law, India is in a rather small club whose only other members are Pakistan, Bangladesh, Guyana, Sierra Leone and Zimbabwe.

Back to Rajasthan: on July 16, the rebel MLAs moved the Rajasthan High Court challenging the speaker’s notices. While the high court is yet to deliver a final verdict, unusually it requested the Rajasthan speaker to delay the proceedings for disqualification till it delivered its verdict. On Thursday, the Supreme Court endorsed this move by the high court.

While the delay was minor – only a week – the court’s move raises an interesting question about whether the courts can interfere in the role of the speaker when it comes to adjudicating on defections.

A file photo of ousted Rajasthan deputy chief minister Sachin Pilot and chief minister Ashok Gehlot. Photo: AFP

Role of the speaker

Under the original anti-defection law, the speaker was supreme when it came to deciding on defection – and his decisions were not subject to judicial scrutiny. However, in 1992, the Supreme Court used the Basic Structure doctrine to strike this down, thus making the speaker’s decisions on defection subject to judicial review.

Did the speaker’s decisions need a check? In theory, the speaker is supposed to be non-partisan. In practice, however, the holder of the post almost always blindly supports and works for his party.

“From 2015 to 2018, 23 YSR Congress MLAs defected to the ruling Telugu Desam Party in Andhra Pradesh,” recounted Chakshu Roy, head of outreach at the PRS legislative think tank. “Four of the defectors were even made ministers. However, the speaker simply did not take any action even as the term of the assembly ended.”

The starkly political role of the speaker is illustrated by a statement from the former deputy chief minister of Bihar, Tejashwi Yadav in 2015. He declared that the objectives of his party, the Rashtriya Janata Dal, of going into an alliance with Nitish Kumar’s Janata Dal (United) were so o honest, they were even ready to give up the most powerful of levers: “Had we any intention to arm twist the government into surviving, we would have kept the speaker’s post.”

Judicial failure

In this particular case, however, it might be the Rajasthan High Court that has overstepped its bounds, argues PDT Acharya, former Secretary General of the Lok Sabha. “There cannot be an intervention by the court before the speaker has made his decision,” he explained. “The court has the power to review the speaker’s decision. But the speaker is the only authority that can decide on the issue.”

Acharya elaborated: “In this case, the High Court has obstructed the proceedings of the speaker. In effect this is a stay on the disqualification proceedings. This goes against the orders of the Supreme Court itself. Intervention by any court at this stage is absolutely barred.”

Given how clear previous Supreme Court’s pronouncements are on the matter, Acharya finds the detailed court proceedings unusual. “The high court should have dismissed this case immediately,” he said. “A speaker does not have to provide a reason to issue a notice.”

While speakers have failed to carry out the spirit of the anti-defection law, as the Rajasthan case shows, the most commonly proposed solution – scrutiny by courts – has its own complications. “A number of defection cases have gone to the courts but they have only provided stop gap, interim orders,” Chakshu Roy explained. “If a final judgment comes out after the term of an assembly gets over what is the point?”

This is borne out by the current case itself. On Thursday, the Supreme Court refused to go into the question of whether it was lawful for the Rajasthan High Court to interfere in the speaker’s proceedings. Instead, it said it would, at a later date, reexamine the judiciary’s powers when it comes to interfering in the speaker’s actions on defection. However, since the issue has already been settled by a five-judge Supreme Court bench itself in 1992, it is unclear if a larger bench will now be constituted to carry out this exercise. Moreover, by the time the issue is reexamined, the Rajasthan crisis would be long gone.

Roy also points to the current case of Tamil Nadu, where in February 2017, 11 MLAs of the All India Dravida Munnetra Kazhagam had voted against their party whip in a floor test. In theory, this was an open and shut case of defection. However, the speaker used a popular loophole in the law which provides no time limit within which the speaker has to decide a case. When this case went to the judiciary, both the high court as well as the Supreme Court declined to order a time limit for the speaker – even though the court has passed similar orders in other cases. Given that the term of the Tamil Nadu assembly is almost over, inaction by the courts has, in effect, resulted in a successful contravention of the anti-defection law.

“The solution to this is simple: get rid of the anti-defection law,” argued Roy. “That is the only way out of this mess.”