Answer:

Introduction - Mention the need for vesting the power to decide on disqualification under the tenth schedule in an independent tribunal.

Body - Highlight the inefficiency of anti-defection law and the benefits of vesting the adjudicating authority in an independent tribunal. Also mention the issues associated with vesting adjudicating authority in an independent tribunal.

Conclusion - Mention the reforms that are required to make the anti-defection law effective.

Answer:

In the Thounaojam Shyamkumar Singh case, 2020 the Supreme Court held that the Parliament should consider amending the Constitution to substitute the adjudicating power of the presiding officer under the Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court so that such disputes are decided both swiftly and impartially.

Inefficiency of anti-defection law:

The law has vested the decision-making authority in the presiding officer which is criticised for the following reasons:

1. Partisan role of presiding officer: The presiding officer may not exercise this authority impartially and objectively due to political exigencies, as the tenure of the presiding officer is dependent on the continuous support of the majority in the house.
2. Lacking legal expertise: The presiding officer usually lacks the legal knowledge and experience to adjudicate the cases. Two speakers of the Lok Sabha (Rabi ray and Shivraj Patil) have themselves expressed doubts about their suitability to adjudicate upon the cases related to defections.
3. Time Limit for Presiding Officer: Since the law does not specify any time period for the Presiding Officer to decide on a disqualification plea. Thus, there have been instances of delay in decision-making by the presiding officer. g., In the 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.
4. Courts intervention only at a later stage: Given that courts can intervene only after the Presiding Officer has decided on the matter, the petitioner seeking disqualification has no option but to wait for this decision to be made.

Thus, due to these concerns, the Supreme Court has argued for vesting the adjudicating authority under the anti-defection law to an independent tribunal.

Benefits of vesting the adjudicating authority in an independent tribunal: -

1. Impartial decision-making: Since the judiciary’s decision-making will not be influenced by political exigencies, thus neutral decisions will be taken with respect to cases under the anti-defection law.
2. Legal Expertise: As the judges of the tribunals have the requisite legal knowledge and experience, thus the decisions of the tribunals will reflect the true interpretation of the laws. As has been done by the judiciary in Ravi S Naik v/s Union of India case & G. Vishwanathan v/s Speaker of Tamil Nadu Legislative Assembly case.
3. Speedy resolution of cases: As the judges would not be influenced by political affiliations, hence the decisions would be speedier and timelier.
4. Reduce political defections: Impartial and speedy decision-making will instil a sense of fear among the legislatures which would thus help in undermining such defections in the near future.

Issues associated with vesting adjudicating authority in an independent tribunal: -

1. Against separation of power: Article 212 of the Constitution bars the judiciary from interfering with the proceedings of the legislature. Thus, vesting such adjudicating authority under anti-defection in a tribunal will go against the principle of separation of powers.
2. Scope of judicial review is already there: Since the speaker’s decisions under anti-defection law are subject to judicial review on grounds of malafide, perversity etc. as upheld by the SC in the Kihoto Hollohan case (1992). So, then why create another tribunal for the same task that too when its independence from executive interference is itself not guaranteed.

Way Forward

1. Ensure impartiality of Speaker:Speakers, when elected must resign from the party to which they belong. At the end of their term, there should be a cooling-off period before they can become members of any political party.
2. Set time limit to decide petition for disqualification: All petitions for disqualification of members under paragraph 2 of the Tenth Schedule should be decided, by adopting a summary procedure, within a period of three months.
3. Allow expression of Dissent: One of the reasons for defection is that the party in the name of party discipline curbs the legislator's right to dissent. Thus, the legislators should be allowed to express their dissent so that they could become true representatives of the people from being only a delegate of the party.
4. Make disqualification for 5 years:All those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.
5. Promoting intra-party democracy: 170th Law Commission report underscored the importance of intra-party democracy by arguing that a political party cannot be a dictatorship internally and democratic in its functioning outside.