Constitutional validity of Tenth Schedule

Constitutional validity of Tenth Schedule


With the emergence of various political parties, the Indian population is provided with diverse ideologies and opportunities to select their representatives. Thus, the need for political parties to put in all their might into winning, this free and fair competition, is natural and but obvious. The political parties, the elections that are held, and the voting populace play their part to ensure a vibrant democracy. But this utopian, or so to say, idealistic phenomena is interrupted with some botheration, one of them being defections. The phenomenon of defections has not been an anomaly in Indian politics. Defection is the subversion of election mandates by elected lawmakers who, at the enticement of ministerial slots or financial rewards, decide to defect from one party to another. It has been the bone of contention with respect to the stability of any government since a long time. To tackle this, the Tenth Schedule was enacted through the 52nd Amendment Act, 1985 with the hope to prevent this political horse-trading. This Act lays down provisions regarding disqualification of MPs and MLAs to curb opportunistic defections, yet its constitutional validity has been debated and scrutinised. 

One of its major shortcomings is related to the Rule 4, which generates a loophole in the law, by providing exceptions from disqualification on the grounds of a merger. When a political party joins with another, the clause generally protects its members, provided that at least two thirds of the members of the relevant legislature have approved the merger. The exemption appears to be flawed because it is focused on membership size rather than the cause of defection. The availability of lucrative office or ministerial posts with the other party appears to be the common cause of defection among individual members. It is reasonable to assume that the two thirds of members who approved the merger may have the same rationale.

Another major lacuna is related to the Rule 2(1)(a) of the Tenth Schedule, which thereby mentions disqualification when a member of the House voluntarily gives up the membership of his party. Herein, the paragraph has ambiguity regarding whether engaging in activities that, in theory, do not equate to renouncing party membership—such as working against the party’s interests or endorsing a rival candidate in an election—may be regarded as the member voluntarily giving up their party membership.

Rule 2 of the Schedule seems to restrict the legislator’s freedom to resist unfavourable party activities, policies, leaders, and laws by placing party members in an array of loyalty to the party whip and policies. In this way, the political party rules over its members, preventing them from voicing any disagreement. In a sense, this goes against the representative democracy’s tenet that members must submit to the highest authority rather than the will of the populace.

The Speaker’s discretionary powers in determining disqualification cases have drawn criticism from certain who argue such could be prone to political prejudice and compromise the fundamentals of natural justice. As per Rule 6, the decision made by the Speaker is final, although he is not bound by any time constraints to make it. It is only when the Speaker has made his decision public that a party may file a lawsuit. According to the recommendations of the Election Commission and the Dinesh Goswami Committee on Electoral Reforms, the President or the Governor of the State should have the authority to decide whether someone is disqualified under the Tenth Schedule. They will follow the Election Commission’s guidance in making this decision. Nevertheless, the Act hasn’t been changed to implement these proposals.

Rule 7 prohibits the courts’ jurisdiction over any issue related to a House member’s disqualification, so no court, including the Supreme Court under Article 136 and High Courts under Articles 226 and 227 of the Constitution, has the authority to review the Speaker’s decisions in this regard. In a number of rulings, the Supreme Court has maintained that the legislation is constitutional in all respects with the exception of the judicial review clause, which was ruled to be unconstitutional. However, the Tenth Schedule has not been amended in this regard despite multiple court rulings supporting the Courts’ authority to conduct judicial review.

Afresh, the anti-defection law and the functions of the Governor and Deputy Speaker have come under scrutiny due to the political crisis that has emerged in Maharashtra. During a hearing about the political disagreement between Uddhav Thackeray, the former chief minister of Maharashtra, and incumbent Eknath Shinde, the Supreme Court noted that the anti-defection rule is applicable even in cases where a faction leaves a political party and manages to form a majority inside it.

Prior to this, in Keisham Meghachandra v. the Hon’ble Speaker Manipur, Justice Rohinton Nariman talked of the need to set an external means to deal with defection cases in order to guarantee the prompt and impartial resolution of such disputes, giving the Tenth Schedule’s provisions—which are so essential to the smooth operation of our democracy—actual teeth.

Constitutional validity of Tenth Schedule

Such instances point towards the fact that the Tenth Schedule does in fact aim to curb the mass defection but there’s still a long way to go. Protecting elected representatives’ rights while maintaining political stability is a fine line that determines whether the Tenth Schedule is constitutional. Even though the Anti-Defection Law has been affirmed by the Supreme Court, the law’s interpretation and implementation are still being shaped by ongoing discussions and legal challenges. Constitutional criticism of the Tenth Schedule is expected to continue as India’s political climate changes, underscoring the necessity for a sophisticated comprehension of the difficult balance between individual liberties and party discipline in a democracy.

Author- Sakshi Singh, a student at Maharashtra National Law University Aurangabad

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