Senior Advocate Arvind Datar, in his recent address during the KT Desai Memorial Lecture, proposed a significant shift in the handling of disqualification petitions under the Tenth Schedule of the Constitution. He suggested that the responsibility for deciding these cases should be transferred from the Speaker to the High Courts.
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Datar’s argument stems from a critical analysis of the anti-defection law introduced in the Tenth Schedule in 1985. He observed that the law has not effectively curbed the defection of lawmakers. One of the central issues, as Datar highlighted, is the ambiguity surrounding the Speaker’s role in cases arising from political party splits. He pointed out,
“Most important difficulty in all the judgments I have studied is that the decision is not taken on time and the decision, if taken, is completely partial. The framers of the Constitution said these are all eminent constitutional offices and they will do their duty in an expeditious manner, but it has not happened at all.”
Datar emphasized the inherent conflict of interest, noting that the Speaker, while expected to be impartial, is also a member of the ruling party and has been empirically found to be partial. This partiality, he argued, undermines the integrity of the decision-making process in disqualification cases.
Further elaborating on the distinction between a political party and the Speaker of the State Legislative Assembly, Datar referred to the Supreme Court’s differentiation. He explained that the Election Commission of India argued for a clear demarcation between disputes over a party’s symbol and the disqualification of its members.
“The question arose, if there is a defection, and some members say we are the party, the defecting group says we are the actual party… If it is a disqualification under the Tenth Schedule, then the only person authorized is the Speaker as it stands,”
Datar said.
The Supreme Court, according to Datar, clarified that the Election Commission does not need to wait for the assembly’s decision on disqualification before acting on disputes unrelated to the Tenth Schedule. Additionally, the Court affirmed that a political party holds the authority to appoint the Whip of the party.
Datar also touched upon the role of the party whip system, advising that it should be used with caution. He underscored the Supreme Court’s clarification in the Subhash Desai case, stating,
“One very important thing and useful thing that the Supreme Court has clarified… is that the power to appoint the leader in the party and whip of the party is with the main political party and not with the legislative party. So that confusion is completely sorted out.”
In conclusion, Datar’s address calls for a reevaluation of the current framework governing defection and disqualification under the Tenth Schedule, advocating for a more impartial and timely judicial process by involving the High Courts.