Tenth Schedule to the Indian Constitution

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The Tenth Schedule, originally inserted in the Indian Constitution in 1985, has a chequered history. But there appears to be a growing consensus that it has failed to achieve its objective of curbing opportunistic defections from one political party to another. A more accurate manner of putting it, perhaps, is that it has controlled or streamlined the permissible means of changing political direction midstream, and in a way, made it costlier in a crude transactional sense. In the process of upholding the constitutional scheme enshrined in the Tenth Schedule, the 1992 Kihoto Hollohan Supreme Court (SC) judgment highlighted the role of the political parties in the Indian democratic system. Members of Parliament (MPs) and Members of the Legislative Assembly (MLAs) are elected, in principle, if not always in fact, on the political and ideological platform of their party. So it is legitimate, SC said, to ban them.

If they want to separate themselves from that philosophy, they are free to do so, but they must receive a fresh mandate from the people. A constitutional amendment in 2003 significantly narrowed the permissible exceptions to this prohibition on party-switching, effectively permitting legislators to escape disqualification only in the event that a minimum of two-thirds of the legislators chose to switch, rather than one-third as was the case with the original clause. It further sought to close other potential means of “compensating” defectors by also disqualifying such persons from holding any remunerative political posts within the government.

It is difficult to fault the underlying ethos of the Tenth Schedule, even if we ruefully accept the fact that it can often be circumvented one way or the other. However, looking more intensely into important characteristics of our polity and to certain features that have assumed outsized importance in recent years, the virtues of the Tenth Schedule appear less substantial and its drawbacks larger. This constitutional mechanism is, as the SC has recognised in its judgments, premised on recognition of the political party as the fulcrum of the polity. In and of itself, this may be broadly correct. But the associated assumption, that an electoral contest between political parties will involve reasoned debate and deliberative decision-making with respect to defined electoral programmes and manifestos, is far more questionable. Part of this goes to the lack of democracy within political parties themselves.

India’s anti-defection rule, theoretically the Tenth Schedule to the Indian Constitution, was implemented to resolve the perceived question of uncertainty created by duly elected representatives in India’s parliamentary system.  It is the form of government changing allegiance from the parties that they supported at election time.

The 10th Indian Constitution Schedule (which addresses the anti-defection law) is structured to avoid political defections caused by lure of office or material benefits or other similar considerations. Parliament passed the Anti-Defection Law in 1985, and amended it in 2002.

  • The 10th Schedule of the Indian Constitution popularly referred to as the ‘Anti-Defection Law’ was inserted by the 52nd Amendment (1985) to the Constitution.
  • “Defection” was described as to abandon a position or to join an organisation in an opposing party frequently.
  • The anti-defection law was enacted to ensure that a party member does not violate the mandate of the party and in case he does so, he will lose his membership of the House.  The legislation refers to bodies of both the Parliament and the state.
  • The aim of the Anti-Defection Law is to prevent MPs from switching political parties for any personal motive.

 

The Tenth Schedule incorporates the following clauses about the disqualification on the grounds of defection of MPs and MLAs:

Grounds for disqualification:

  • If an elected member gives up his membership of a political party voluntarily.
  • If he votes or abstains from voting in the House, contrary to any direction issued by his political party.
  • If any member who is independently elected joins any party.
  • If any nominated member joins any political party after the end of 6 months.
  • The decision on disqualification questions on the ground of defection is referred to the Speakeror the Chairman of the House, and his/her decision is final.
  • All proceedings in relation to disqualification under this Schedule are considered to be proceedings in Parliament or the Legislature of a state as is the case.

Exceptions under the Anti Defection Law

  • In a situation where two-thirds of the legislators of a political party decide to merge into another party, there will be no disqualification either of the members who decide to merge or of those who remain with the party.
  • Any person elected to office or speaker can withdraw from his party and join the party if he relinquishes from that position.
  • Earlier, the legislation authorised the separation of parties, but at present this was prohibited.
  • Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

 

The role of the Speaker

  • After enactment, some legislators and parties exploited loopholes in the law. There was evidence that the law did not fulfil the purpose of bringing a halt to political defection, and in fact legitimised mass defection by exempting from its provisions acts that it termed splits. For example, in 1990, when Chandrashekhar and 61 other parliamentarians simultaneously changed allegiance, they did not receive penalties.
  • The Speaker of the Lok Sabha did not allow the defecting members of the breakaway faction of Janata Dal to explain their point of view. The Speaker ‘s position in determining the cases resulting from political defections was another part of the law that was criticised.
  • The impartiality of the speakers of different houses has been challenged in terms of official acceptance of various groups of political parties. Questions were raised about the nonpartisan role of the Speaker due to his/her political background with the party from which he/she was elected as the Speaker.
  • In 1991, Janata Dal (S) was accused of undermining the spirit of the anti-defection law by keeping defecting members in ministerial posts. Later, all the opposition members of the house submitted an affidavit to the President of India, appealing to him to dismiss the ministers. Finally, the Prime Minister, in reaction to pressure to save the Speaker’s and House’s fallen integrity, expelled the defective leaders from their ministerial posts.
  • Some legal luminaries of the time suggested that a legitimate remedy be made accessible to legislators to seek protection from the Speaker’s decision. They also indicated that the Speaker’s disqualification decision on defection grounds would not be definitive, and proposed that a judicial review system be made available to members by allowing a court to deal with these cases.