Previously, the Telangana Assembly Speaker was required to decide upon disqualification petitions filed against ten Bharatiya Rashtra Samithi (BRS) MLAs who shifted their allegiance to the ruling Congress after the 2023 elections. With the indefinite delay on part of the Speaker, the Supreme Court in Padi Kaushik Reddy v. Telangana dated 31^st July 2025, ordered the Speaker to conclude the pending proceedings “as expeditiously as possible and in any case, within a period of three months…” Thereafter, the failure of the Speaker to act within the stipulated period culminated into contempt proceedings- his lethargy was best described as a 'contempt of the constitution.' Finally, on 12^th March 2026, the Telangana Assembly Speaker disposed of the remaining petitions before him.

It is instances like these that nudge us to think about a recurring challenge faced by India's parliamentary democracy- the exploitation of anti-defection laws and more specifically the questionable impartiality of the Speaker along with the endless delays caused in deciding upon defection petitions.

The 10^th Schedule and its Rationale

The 10^th Schedule, which codified India's anti-defection law, was introduced in the Constitution via the 52^nd Amendment to curb the evils of political defections, commonly known as “aaya ram gaya ram” (defection) politics in India. Modelled on the Westminster form of democracy, anti-defection law is considered as a tool to ensure political stability, promote party discipline and curb legislators from switching parties for personal gain. It also ensures that the elected (candidate) does not breach the electorate's trust reposed in him, basis which the candidate successfully contested elections. Paragraph 6(1) of the 10^th Schedule states that the Speaker's decision as to the questions of disqualification arising out of defections are final.

It is important to mention that the question of whether the speaker must adjudicate upon disqualification petitions was extensively debated before both the houses before passing the amendment. Erstwhile MP, Rajesh Pilot feared that the Speaker's power may be exercised in an authoritarian manner, under political pressure from the ruling party. Furthermore, erstwhile MP, Shri Priya Ranjan Das Munshi expressed his apprehension that the Speaker was not bound by any time limit to arrive at a decision.

These concerns were replied by the then Law Minister Shri A.K. Sen in the following words- “Once it goes outside the control of the House, it will take years and years for the court to come to a decision, because there will be appeals and further appeals and the matter will be forgotten…”, hinting that the Speaker is expected to exercise his discretion within a reasonable period of time, without causing any inordinate delay. A.K. Sen assured that the Speaker's position is the only plausible forum to decide defection matters 'fearlessly' and 'expeditiously.' Basis these expectations, Parliament entrusted the decision-making authority with the Speaker.

Law as Propounded by Judicial Precedents

A few years after the introduction of anti-defection law, the constitutional validity of 10^th Schedule was challenged in Kihoto Hollohan v. Zachillhu. Amongst other issues, the authority of the speaker under Paragraph 6 along with the finality of the Speaker's orders were questioned. The most crucial concern was whether the Speaker's orders, being 'final', are judicially reviewable. The Supreme Court struck down Paragraph 7 of the 10^th Schedule which ousted the jurisdiction of the courts. It explained that Paragraph 7 violated the principle of judicial review, thereby, being ultravires the Constitution's basic structure.

As far as Paragraph 6 was concerned, the Court affirmed that the decision of the Speaker was final and only in exceptional instances such as those of jurisdictional errors, mala fides, non-compliance with constitutional mandate or breach of rules of natural justice, would judicial review be possible. Additionally, Kihoto Hollohan elaborated that judicial review cannot be availed at a stage prior to the decision-making of the Speaker and a quia timet (loosely translated to injunction) action would not be permissible.

Thus, through Kihoto Hollohan, the Court introduced accountability by subjecting the Speaker's decision to judicial review. It was only in 2020, that in Keisham Meghachandra Singh v. Hon'ble Speaker, the Supreme Court imposed a mandate on the Speaker to decide disqualification matters within a reasonable period of time. The Court recognized that what is reasonable needs to be decided on a case-to-case basis. However, to achieve the object of the 10^th Schedule, it opined that absent exceptional circumstances, a disqualification petition must be decided within an outer limit of 3 months from the date of its filing. Moreover, the Apex Court clarified that a 'bar on qua timet action' as mentioned in Kihoto Hollohan did not preclude any Court from aiding the Speaker to arrive at a prompt decision.

Furthermore, In Shrimanth Balasaheb Patil v. Hon'ble Speaker, the Supreme Court clarified on the extent and the limitations on the Speaker's authority. It was held that:

a. the Speaker does not possess the constitutional power to bar a disqualified member from contesting elections i.e., the even disqualified members have a right to contest the resulting by-elections. The 10^th Schedule only mandates vacancy of the seat and it does not bar the ex-member from contesting subsequent elections.

b. they cannot dictate or mandate the duration of a disqualification (such as barring them until the end of that specific assembly term). This is because such restriction must be expressly sanctioned by statutory law passed by Parliament, such as the Representation of the People Act, 1951, rather than being left to the discretion of the Speaker.

Subversion of the Speaker's Authority: Mergers and Resignations in Anti-Defection Law

In the latest instances of defections as seen with the rebel TMC and ShivSena MPs, a majority of the MPs (constituting two-thirds or more than two-thirds of the total number of MPs of the respective political party) have crossed the parliament floor. Paragraph 4 of the 10^th Schedule creates an exception of 'mergers' to the general rule of defection and allows for such kind of 'mass defection.' If at least two-thirds of party members defect to another party or establish a new political party, then such acts will not attract the consequences of a usual defection. The rationale behind the merger exception is to balance legislative stability with a representative's right to dissent as well as to respect their genuine political realignment. It is presumed that as opposed to an individual MLA, a vast majority of the party's representatives, while shifting collectively, act in good faith and are not guided by corrupt motives. Hence, the two-thirds numerical threshold acts as a valve to distinguish between presumably corrupt and legitimate cases of defection. Therefore, defections are permitted only in cases where a significant majority of party members consent to it.

In 2020, 22 Congress MLAs from the Madhya Pradesh Assembly resigned from the party the as a result of which the thin majority enjoyed by the Congress plummeted below the half-way mark. Likewise, the overall strength of the assembly reduced by 22 seats. Considering these revised numbers, the BJP emerged as the majority party without actually requiring any of the MLAs to cross the floor. Article 190 of the Constitution protects a member's absolute democratic right to resign their seat. Therefore, in this case, the rigors of the anti-defection law were bypassed by a resignation strategy rather than a direct defection or merger.

Consequently, in instances of both party mergers and engineered mass-resignations, it can be argued that while the letter of the law is meticulously observed, its underlying constitutional spirit as well as the authority of the Speaker to decide on these cases is effectively subverted.

Need to rethink the Speaker's role under 10^th Schedule

The political tales enlisted in this article prompt us to ponder: Whether the Speaker, considering their political reality and the potential to misuse the quasi-judicial powers vested in them, should continue deciding upon anti-defection matters?

For one, forty years of history through a plethora of disputes has illustrated that vesting quasi-judicial powers with an otherwise legislative functionary has undermined the very rationale of bestowing these powers to such authority, which was to ensure 'fearless' and 'expeditious' adjudication of disqualification petitions. In fact, the minority of Kihoto Hollohan, had identified as early as the 1990s, that the Speaker did not satisfy the requirement of an independent adjudicating authority.

Since then, different institutions have proposed alternatives to counter this problem:

1. Keisham Meghachandra believed that an independent tribunal, perhaps headed by a retired Supreme Court or a High Court judge or any other independent mechanism must be set up to give teeth to the 10th Schedule.

2. The Law Commission of India in its 2015 Report on Electoral Reforms suggested that the President or Governor shall act on the advice of the Election Commission of India and decide on matters of disqualifications. However, the political affiliations of these fora can also raise eyebrows.

3. Most importantly, even if the adjudication is left to the Speaker, it can be argued that subsequent judicial decisions must be incorporated within the 10th Schedule by an amendment, which in turn, imposes a strict 60 or 90-day deadline on the Speaker or any other appropriate authority to remove the political lethargy. The Speaker must face severe repercussions failing to meet these timelines.

Apart from these alternatives, a much more radical stance would be that of a default or an automatic disqualification of the member upon defection. In other words, the very act of defection, by itself would constitute an objective ground for disqualifying the member. Such a law would obliterate the Speaker's authority under the paragraph 6. Additionally, the 10^th Schedule as well as the Representation of the People Act, 1951 (specifically, Chapter III of Part II of the Act, which enlists grounds for disqualification of a member) will have to undergo amendments to accommodate this change.

It is yet to be seen, how the much more time will the Lok Sabha Speaker require to decide upon the remaining disqualification proceedings. Until then, the Speaker's authority and procrastination can be best described as an 'operation success, patient died' situation.

Views are personal.