Schedule X of the Indian Constitution: A Game Changer
Issue 6 | July 25, 2020
Defection causes government instability, for a government may be defeated if members of the ruling party go to the Opposition, thus making it a majority party. Defection is undemocratic as it nullifies the verdict of the voters in an election. Thus the party which has the popular vote of the people may fail to form the Government because the Opposition has induced the members to leave it. The problem of defections has not been new to the functioning of the Indian Parliamentary democracy. Indian politics had seen defections right from the pre-independence Central Legislative Assembly and Provincial autonomy days. During Montford Reforms, Shyam Lal Nehru, a member of the Central Legislature who was elected on the Congress ticket but subsequently he crossed the floor and joined the British Side, at that time Pandit Moti Lal Nehru who was the leader of the Assembly party.
A significant development took place when the Constitution was amended to include the Tenth Schedule. The Tenth Schedule was purported to curb the malaise of political defections in national life. A Constitution Bill was introduced in the Lok Sabha on 24th Jan 1985 which stated, “the evil of political defections has been a matter of national concern. If it is not combated it is likely to undermine the very foundations of our democracy and the principles which sustain it.”
The Fifty-Second Amendment of the Constitution changed four Articles of the Constitution, viz 101(3)(a), 102(2), 190(3)(a), and 191(2), and added the Tenth Schedule. This amendment is often referred to as the anti-defection law.
Challenges of Anti-Defection Law
Subversion of electoral mandates: Defection is the subversion of electoral mandates by legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.
Affects the normal functioning of government: The infamous “Aaya Ram, Gaya Ram” slogan was coined against the background of continuous defections by the legislators in the 1960s. The defection leads to instability in the government and affects the administration.
Promote horse-trading: Defection also promotes horse-trading of legislators which clearly go against the mandate of a democratic setup.
There are several other issues in relation to the working of this law which need to be discussed. Does the law while preventing defection also suppress a member of parliament’s right to the freedom of expressing his own opinion in Parliament? Does it restrict their opinion which is against the party position? Is the decision of the Speaker regarding the disqualification of a Member of Parliament final? Does judicial review extend to the rules framed under the tenth Schedule? and many more.
While there exists many ambiguities, some clarity has been given by the Courts in relation to Anti defection Law Law in some well-known landmark cases. They are discussed as follows:
In Kihoto Hollohan v. Zachillhu [1992 SCR (1) 686], and Others commonly referred to as the case where the constitution bench of the Supreme Court analyzed in detail the various provisions of the 52nd amendment of the constitution which inserted a new schedule (tenth schedule) elaborating various provisions to protect the parties from defection. In this case, multiple petitions were heard together. So, the tenth schedule was inserted by the Constitution (Fifty-Second Amendment) Act, 1985. The anti-defection law raised many questions such as whether the law impinges upon the rights of free speech of the Members of parliament or members of the state legislators. Another prominent question raised was, should the law only be valid for those voting situation which determines the stability of the government (such as proving confidence after forming the government or no-confidence motion), should the final judgment on defection is to made by the presiding officer, etc. The Judgement in Kihoto Hollohon v. Zachillhu and Others (1992) answers several of the questions and concerns regarding this law. While upholding the constitutional validity of this amendment, the court observed that "the anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions”. The court finally held that the law does not violate any rights of free speech or the basic structure of the parliamentary democracy. Another important aspect of this judgment is the final decision making authority on declaring the defection. The court made it clear that the presiding officer is the one to make the decision and it is final subject to judicial review after the decision is pronounced and affected.
In Ravi S. Naik v. Union of India [1994 AIR 1558], the Bench said that the rules made under the tenth Schedule were procedural in nature. The Disqualification rules according to the Bench were framed to regulate the procedure that is to be followed by the Speaker for exercising the power conferred on him by Paragraph 6(1) of the Tenth Schedule. Any violation of these rules would amount to an irregularity in procedure which is immune from judicial scrutiny in view of Paragraph 6(2) as declared by the Bench in Kihoto Hollohan. The Bench in Ravi Naik did not agree with the view that the violation of the Disqualification Rules amounts to a violation of constitutional mandates. They were of the view that elevating the Rules to the status of the provisions of the Constitution is impermissible. The Disqualification Rules cannot be equal to the provisions of the constitution as they have been framed by the Speaker in the exercise of his powers under paragraph 8 of the Constitution. The Disqualification Rules cannot be thought to be constitutional mandates. Therefore violation of the Disqualification Rules is not a reason for judicial review of the order of the Speaker in view of the finality clause contained in paragraph 6(1) of the Tenth Schedule as was said in Kihoto Hollohan.
In Jagjit Singh v. State of Haryana [W.P. (C) No. 287/2004], the legislators were elected as Members of Assembly as independent candidates. Later they joined a political party and news of their joining was reported in print as well as electronic media. That fact was allegedly admitted by members in an interview given to a TV news channel. Thereafter those members were disqualified from being members of Assembly by Speaker. It was challenged. The Supreme Court held: “when an independent member is alleged to have joined a political party the test to be applied is whether the member has given up his independent character on which he was elected. This has to be determined on the appreciation of material on record and conduct of the member of the Speaker. No hard and fast rule can be laid down when the answer is dependent on the facts of each case. The substance and spirit of anti-defection provisions are the guiding factors”. Disqualification of these members by the speaker was upheld, despite the allegation of a procedural defect in the enquiry. Supreme Court also clarified one more question: “Where a sole member of a political party in an Assembly joins another political party, he cannot get the protection of paragraph 3 of Tenth Schedule of the Constitution and will be disqualified from being a member under paragraph 2 of the Tenth Schedule of the Constitution.”
The introduction of Tenth Schedule in the Constitution attempted to bring in comprehensive legislation that would assail the menace of defection. While the law has succeeded in this aspect to a reasonable degree, there were certain ambiguities. The Courts of the land have done a fair job in expounding the stance by applying the law to particular facts and circumstances. Nevertheless, very few general propositions have been laid down which have a universal application. Thus, there seems to be considerable scope for judicial interpretation, one that may give further clarity on the law and may bring in a wider range of cases within the umbrella of this legislation.
Holding the writ petition filed by Sachin Pilot-led group of Congress MLAs, the Rajasthan High Court framed 13 questions of law. The bench comprising of Chief Justice Indrajit and Justice Prakash Gupta, which heard the matter on July 17, July 20, and July 21, Passed an Order on July 24, 2020 holding the writ petition maintainable in view of the 13 questions.
The Lucknow Bench of the Allahabad High Court on June 18, 2020 issued notice to the Speaker of Uttar Pradesh Assembly on the issue of allegedly keeping pending the application of Congress seeking disqualification of two of its MLAs, Aditi Singh and Rakesh Singh, for anti-party activities.
The High Court of Manipur on June 8, 2020 restrained seven Congress MLAs who defected to the BJP, from entering the Assembly till Speaker Yumnam Khemchand Singh finally disposes of the pending anti-defection cases against them. These seven lawmakers had helped the formation of the BJP-led government in the state after the Assembly election in 2017, in which the Congress emerged as the single largest party.
The Supreme Court on January 21, 2020, asked Parliament to amend the Constitution to strip Legislative Assembly Speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law. It was also suggested that an independent tribunal ought to be appointed instead to determine the fate of an MP or an MLA who has switched sides for money and power.