The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article talks about the 10th Schedule of the Indian Constitution which is the primary anti-defection law of India.
This article has been published by Sneha Mahawar.
The word defection means the abandonment of one’s allegiance. While a person could defect from their home country as well, in this article’s context, defection is the phenomenon when a political party member, after being elected to an electorate seat, changes their party affiliation. Too often political party changes occur because of greater incentives, mostly monetary, provided by that party to those candidates. These instances of defection not only involve a betrayal of the member to their original party but also involves a greater betrayal to their voter. As candidates represent a party ideology and vision, the moment they change their political party, the main reason why they were elected in the first place gets undermined.
While the anti-defection law endeavoured to rectify and prevent the horse-trading of the legislators of our country, even today, the problem is notoriously prevalent. Even the process of disqualification is guided by the party affiliation of the adjudicator, making the 10th Schedule nothing more than a toothless tiger. Nevertheless, it is imperative to analyse the provisions of the schedule to understand where it is falling short.
Historical background of the 10th Schedule of Indian Constitution
India witnessed a massive number of defections in the late 1970s which echoed a complete disregard of the will of the voters who brought those legislators to power. Furthermore, in 1967, various state governments were ruined because of “party-hopping” MLAs. The situation deteriorated quite fast, finally culminating in the Parliament passing a unanimous motion that called for the formation of a Parliamentary Committee headed by Y.B. Chavan to investigate and report on this increasingly concerning issue. The Committee gave its recommendations and accordingly the 32nd Constitutional Amendment Bill that sought to disqualify defecting parliamentarians from holding ministerial positions was submitted to the Parliament. With the dissolution of the Lok Sabha, this Amendment Bill expired. The 48th Constitution Amendment Bill, which was similar to the previous one, was then introduced. Finally, in 1985, the Rajiv Gandhi government, passed the Constitution (Fifty-Second Amendment) Act, 1985, also popularly known as the Anti-Defection law.
10th Schedule, Article 102(2) and 191(2)
The Amendment Act added the 10th Schedule as well as Clause (2) in Article 102 and Clause (2) in Article 191. While Article 102 contained provisions for grounds of disqualification of members of the Parliament, Clause (2) gave authority to the 10th Schedule as holding legitimate grounds of disqualification. Article 191 spoke about the same but for State Legislatures.
Discussion of the provisions of 10th Schedule of Indian Constitution
Paragraph 1 of the 10th Schedule
The first paragraph of the 10th Schedule is equivalent to a standard definition or interpretation clause. It defines the meaning of “House” as meaning either houses of the Parliament or Legislative Assembly, “Legislature party” as a group consisting of all members in a House of a political party, and “Original political party” as the party to which a member of House belongs to before defecting.
Paragraph 2 of the 10th Schedule
This paragraph talks about the disqualification on the grounds of defection.
Member of a political party
In general, a person belonging to any political party while being a member of a House becomes disqualified from that House if they-
- voluntarily give up on their membership of such political party or,
- vote or abstain from voting in that House contrary to the direction issued by the political party (and such an action is without the permission of the political party and does not get a subsequent approval within 15 days of the act of voting or abstaining)
Moreover, it has been explained that a person is said to be part of a political party if they have been a candidate belonging to that party before elections to that seat took place.
According to sub-paragraph (2), any member who has been elected to any House as an independent candidate is also barred from joining a political party after they are elected.
Nominated members, according to the explanation clause of sub-paragraph (1), are allowed to join a political party within six months of taking the oath for their seat. However, sub-paragraph (3) talks about disqualification of nominated members, wherein it is stated that nominated members of a House can be disqualified if they join any political party after the expiry of that period of six months.
Paragraph 3 of the 10th Schedule and 91st Constitutional Amendment
This paragraph was removed from the Indian Constitution by the Constitution (Ninety-first Amendment) Act, 2003. Paragraph 3 originally said that disqualification did not apply when a political party underwent a split and not less than one-third of the members of the original political party are part of the newly formed faction. However, by the Amendment Act, Paragraph 3 was deleted.
Apart from strengthening the anti-defection law, the 91st Amendment also sought to debar defectors from holding public office. Anyone who had been disqualified under the 10th Schedule became automatically disqualified from being appointed a minister, both at the central and state level. The change was brought about by the insertion of Clause (1-B) in Article 75 and Clause 1(B) in Article 164 of the Indian Constitution.
Paragraph 4 of the 10th Schedule
This paragraph exempted members from being disqualified in case their political party merged with another political party. A merger was said to be valid if at least two-thirds of the members of the legislative party had agreed to such a merger. In such cases, if a member refuses to be part of the new political party and starts to function as a separate group along with some other members, they would not be disqualified as well.
Paragraph 5 of the 10th Schedule
The Speaker, Deputy Speaker, Chairman, or Deputy Chairman are exempted from being disqualified if because of their election to that office they voluntarily give up membership of their original political party or they rejoin a political party after they cease to hold that office. This protection continues to be there as long as that person does not rejoin their original political party or any other political party within the duration of their office.
Paragraph 6 of the 10th Schedule
According to this paragraph, the final decision about whether a person will be disqualified lies with the Speaker or Chairman of a House. In situations where disqualification of the Speaker or Chairman comes into question, the concerned House elects a member who in turn has final authority over the issue.
Paragraph 7 of the 10th Schedule
Indian Courts are prevented from having jurisdiction over any matter related to the disqualification of a member of any House under the 10th Schedule.
Paragraph 8 of the 10th Schedule
Paragraph 8 talks about the rulemaking power of the Speaker or Chairman of a House with regards to the disqualification process etc. Sub-paragraph 3 also empowers the Chairman or Speaker of a House to direct that any deliberate contravention of the rules by any person may be considered as a breach of privilege of the House.
Constitutional validity of 10th Schedule of Indian Constitution
The validity of this Schedule was challenged in the case of Kihoto Hollohan v. Zachillhu And Others (1992). In this landmark judgment, the Supreme Court of India upheld the validity of the 10th Schedule and addressed the following points of contention-
- The 10th Schedule was challenged on the ground that the 52nd Amendment Act that brought it about made changes in Chapter IV of Part V and Chapter V of Part VI of the Constitution and thus it should require ratification by legislatures of at least half the Indian states as given in Article 368(2).
- It was further contended that even if the Amendment Act did not attract Article 368(2), it took away the power of judicial review and could be struck down.
- Another primary question in this case that was addressed was whether the 10th Schedule was violative of Article 105 and Article 194 and the rights within it. According to subparagraph (1) of Paragraph 2, members were liable to be disqualified in case they voted against what the party whip had directed. The petitioner challenged this provision because disqualifying someone because of their opposing views was violative of Articles 105 and 194 as well as freedom of speech and expression as given in Article 19 of the Indian Constitution and freedom of dissent and freedom of conscience.
- Finally, it was argued before the Apex Court that the power to decide disqualifications could not be given to Chairmen or Speakers because they were party nominees and were not obliged to give up party affiliations.
The Supreme Court held that Article 368(2) was attracted for the 52nd Amendment Act but simultaneously held that appointing the Speaker or Chairman as adjudicator was justified. However, it also concluded that Paragraph 6 did not exclude extraordinary jurisdiction of the Supreme and High courts as given in Articles 136, 226, and 227.
With regards to freedom of speech and expression, it was considered that in the greater national interest, freedom could be curtailed.
It is interesting to note that the dissenting judgment held the anti-defection law to be unconstitutional and anticipated its use without neutrality by the appointed adjudicators. The ominous judgment finds relevance, especially in today’s political scenario.
Contemporary issues surrounding 10th Schedule of Indian Constitution
Preventing courts from taking jurisdiction
While courts are prevented from taking action in cases of disqualification by defectors, recent years have seen judicial remedies as a response to inaction by the Speaker or Chairman of a House.
In the case of Keisham Meghachandra Singh v. the Hon’ble Speaker Manipur (2020), the appellant was a Congress MLA who filed an appeal to the Supreme Court after a petition to the High Court failed because courts do not have jurisdiction over such cases. Applications for disqualification of a defecting MLA was originally made to the Speaker of Manipur Legislative Assembly but after their inaction, court petitions were filed.
The High Court, however, observed that courts could not be prevented from taking jurisdiction when all alternative remedies present in the 10th Schedule were exhausted and the Speaker was deliberately not taking action.
The Supreme Court, on appeal, held that because in the case of Rajendra Singh Rana And Ors v. Swami Prasad Maurya And Ors. (2007), a Constitution bench had set aside an Uttar Pradesh Speaker’s order based on them failing to exercise appropriate jurisdiction, “failure to exercise jurisdiction” was now a recognised stage when judicial intervention could take place.
At the same time, the bench made it clear that intervention, if any, could occur only after the Speaker/Chairman had taken a decision and not during the time the proceeding is ongoing.
In the 2019 Karnataka MLA disqualification case, namely Shrimanth Balasaheb Patil v. Hon’ble Speaker, Karnataka Legislative Assembly (2019), the Supreme Court held that they did not appreciate petitions being directly filed in the top court. Instead, petitions, if necessary, had to be first filed in the High Courts.
The Supreme Court bench, in the 2020 case also made two other crucial observations which will be discussed more in the next two sections-
- It first spoke about the need for an external mechanism to decide cases of disqualification
- It also said that a Speaker/Chairman should decide cases of disqualification within three months and asked the Speaker of Manipur Legislative Assembly to decide the case within the next four weeks.
An external mechanism
The Supreme Court through multiple cases has asked the central government to amend the Constitution and prevent the Speaker from acting on partisan lines and acting in an undemocratic manner. Such observations were made in the Keisham case as well as the Karnataka MLA disqualification case. The same could be done by taking away the power of the Speaker to decide these cases and creating a separate permanent tribunal that would function for this purpose.
Justice Nariman, while writing the Keisham judgment, questioned the feasibility of putting the onus on the Speaker to objectively decide on disqualification cases, especially in a country where party politics are often the deciding factor in everything. The judgment stated that only “swift and impartial disqualifications” would give real “teeth” to the 10th Schedule and that could be achieved by placing this jurisdiction beyond someone who remains part of a political party either de jure or de facto.
Party affiliations often prevent the Speakers from taking prompt decisions, especially if the impugned member defected to a party to which the Speaker themselves belonged. This completely makes the purpose of the 10th Schedule useless. In S.A. Sampath Kumar v. Kale Yadaiah (2016), a reference was made to a Constitutional Bench to decide on whether Courts could direct the Speakers to decide cases of disqualification within a fixed time frame. However, Justice Nariman in the 2020 case stated that the reference was not required and went on to prescribe a time limit of three months, saying that Speakers should try to decide the cases within a “reasonable period”.
It is quite clear that the need-of-the-hour is to immediately rectify this situation. While it seems that to stop legislators from defecting cannot be stopped, what can be changed is the way the entire disqualification procedure is undertaken. The establishment of a neutral external body for adjudication purposes is vital. Only then will the legislators fear the 10th Schedule.
While allowing the Courts to have a certain degree of jurisdiction over the process of disqualification amounts to judicial supremacy, it is necessary to protect the interests of the voters. Reducing the court’s powers in this regard would need to be followed by an added layer of scrutiny from another institution to maintain and preserve the accountability of the adjudication process.
- [Columns] Anti-Defection Laws in India: Its flaws and its falls
- Supreme Court addresses the lacunae in anti-defection laws – TheLeaflet
- Ending inaction: On Speakers and disqualification – The Hindu
- SC again highlights taking away disqualification power from Speakers – The Hindu
- Karnataka MLAs Disqualification case: Read why SC ‘partly’ upheld Speaker’s order [Full Report] | SCC Blog
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