Tenth Schedule: Need Of A Review

The Tenth Schedule of Indian Constitution deals with anti-defection law.

About Anti-Defection Law

• The Anti-Defection Law was passed in 1985 through 52nd amendment to the Constitution, which led to addition of Tenth Schedule and amendment of articles 101, 102, 190 and 191.
• The main objective was to deter ‘the evil of political defections’ and to enhance the credibility of the country’s polity by addressing rampant party hopping by elected representatives.
• The anti-defection law deals with situations of defection in Parliament or state legislatures by:
  • Members of a political party,
  • Independent members, and
  • Nominated members.

Grounds for Disqualification under Anti-Defection Law

1. If a member of a house belonging to a political party-
   • Voluntarily gives up membership of his political party
   • Votes contrary to a direction issued by his political party
   • Does not vote in the House at all, when such a direction is issued. However, a member shall not be disqualified if he has taken prior permission of his party, or is condoned by the party within 15 days from such voting or abstention.
2. If an independent candidate joins a party after the election.
3. If a nominated member joins a party six months after he becomes a member of the legislature.

Exceptions

A person shall not be disqualified if his original political party merges with another (applicable only if more than two-thirds of the members of the party have agreed to the merger), and He and other members of the old political party become members of the new political party, or

• He and other members do not accept the merger and opt to function as a separate group.

Adjudicating Authority

The Chairman or the Speaker of the House takes the decision to disqualify a member.

• If a complaint is received with respect to the defection of the Chairman or Speaker, a member of the House elected by that House shall take the decision.

Grounds for Review of the Decision of Speaker

Originally, the Act provided that the presiding officer’s decision was final and could not be questioned in any court of law. But, in Kihoto Hollohan case (1993), the Supreme Court (SC) declared this provision as unconstitutional on the ground that it seeks to take away the jurisdiction of the SC and the high courts and laid down following grounds for review of the decision of the speaker:

• If it is in violation of constitutional mandate
• If it is made in a mala fide way
• If the decision of speaker is perverse
• If it is non­compliant with rules of natural justice and perversity.

Merits

• Promotes government stability
• Promotes party discipline
• Reduces political corruption
• Improves governance
• Reduces expenditure on frequent elections

Loopholes in the Anti-Defection Law

• Power to the Speaker: The Speaker of the House or the Chairman has been given wide and absolute powers to decide the case related to disqualification of the members on the grounds of defection. The Speaker still remains as the member of the party which had nominated him/her for the post of speaker. Further, the Law does not provide a time limit for presiding officer to take decision regarding disqualifying a member.
• Restriction on Legislators: The law puts the members of the party into a bracket of obedience in accordance with the rules and policies of the party, restricting the legislator’s freedom to oppose the wrong acts of the party, bad policies, leaders and bills. It thus interferes with the individual member's freedom of speech and expression by curbing dissent against party policies or party whip.
• Ambiguity: As per the law, the member of the House would be disqualified from the party if he voluntarily gives up his membership of the political party. But the Schedule does not clarify what “voluntarily giving up” means.
• Lowers Accountability of Elected Candidate Towards His Electorate: Following party diktat every time, the legislator cannot vote in line with his conscience and interest of his electorate. This lowers the accountability of elected representative towards his electorate.
• Against Internal Party Democracy: The law removes the need for the government to build broad consensus for its decisions as it can ensure the support of each of its MP by issuing a whip. Thus, it works against internal party democracy.
• Proliferation of Small Political Parties: The law has led to the rise of small political parties out of existing ones, primarily in order to bypass the law resulting in the formation of a number of unstable coalition governments.
• Individual vs. Group Defection: The law allows group defection by providing exception in the law for merger between political parties. But it doesn't allow individual defections. This distinction is irrational.

Possibilities and Prospects

As recommended by several committees related to anti-defection, following measures can be taken-

• There should be an independent adjudicating authority to decide disqualifications under the law. The President/ Governor should decide on the disqualification under the Tenth Schedule on the advice of the Election Commission.
• Exceptions to the law such as in the case of mergers should be deleted.
• Pre-poll electoral alliances should be considered as political parties under the law.
• Separate committees should be constituted for investigating into the cases of horse trading between the parties and where members of these parties are found guilty, punitive sanctions should be imposed on them like
  • Prohibition of defectors from holding public office for the duration of the remaining term.
  • The vote cast by a defector to remove a government should be considered invalid.

Despite the existence of law, political defection is still common. Thus, there is a need for a more rationalized version of anti-defection law which will help establish a truly representative democracy.