10th Schedule

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In news: Vice President M Venkaiah Naidu said the time has come to revisit the Tenth Schedule of the Constitution. The Vice President, underlining the need to revisit the Tenth Schedule of the Constitution, also known as the anti-defection law, said, “We should discuss this and come to a conclusion. Legislatures are for debate, discussion without disruption. Further, credibility, capability and capacity should be the yardstick for anyone to enter the legislature and not caste, cash and criminality.” A comprehensive relook on the statute is required, he emphasised. 

The Punjab Assembly has issued a notice to Sukhpal Singh Khaira, former rebel AAP leader and MLA from Bholath, for disqualification under the 10th Schedule of the Constitution. Mr. Khaira had resigned from the party on 6th January, but had not resigned as a legislator. Later, without informing, he floated a new political outfit.

Anti-defection Law

The anti-defection law under 10th Schedule of the Constitution was enacted through the 52nd amendment after a prominent culture of ‘Aaya Ram Gaya Ram’, in which legislators used to change parties frequently, was witnessed in the Indian polity.

• Aaya Ram Gaya Ram was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice within the same day in 1967.  
• The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.
• The Tenth Schedule was inserted in the Constitution in 1985. 

Tenth schedule

• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House. 
• A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote (voting against the direction of whip in the house)
• This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.  The law applies to both Parliament and state assemblies.

Are there any exceptions under the law?

• The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger. 
• In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

The amendment, by which the Tenth Schedule was inserted in the Constitution, did three broad things.

• Firstly, it made legislators liable to be penalised for their conduct both inside (voting against the whip of the party) and outside (making speeches, etc.) the legislature — the penalty being the loss of their seats in Parliament or the state legislatures.
• Secondly, it protected legislators from disqualification in cases where there was a split (with 1/3rd of members splitting) or merger (with 2/3rds of members merging) of a legislature party with another political party.
• Thirdly, it made the Presiding Officer of the concerned legislature the sole arbiter of defection proceedings

The 2003 Amendment

• The last step in the legislative journey of the anti-defection law came in 2003.
• A Constitution Amendment Bill was introduced in Parliament by the government of Prime Minister Atal Bihari Vajpayee to address some of the issues with the law.
• A committee headed by Pranab Mukherjee examined the Bill.

Pranab Mukherjee Committee observations:

• It is observed that the lure of office of profit plays dominant part in the political horse-trading resulting in spate of defections and counter defections.
• The one-third split provision which offered protection to defectors was deleted from the law on the committee’s recommendation.
• The 2003 Amendment also incorporated the 1967 advice of the Y B Chavan committee in limiting the size of the Council of Ministers, and preventing defecting legislators from joining the Council of Ministers until their re-election.

Injustice to a legislator’s right to vote:

Legislators have become mere hostages of whip-driven tyranny (actual power residing in the political party)—Unable to vote according to his conscience, convictions, common sense and constituency concerns

The party whip— Directs its members which way to vote practically on each and every bill (enforced adherence – a member invariably ends up voting for a bill if he/she is on the Treasury benches and against a bill if he/she is in the Opposition; parliamentarians sometimes voting against a legislative instrument which they had supported previously, depending on whether their party occupies the Opposition or Treasury benches)

Disincentivises lawmakers from seriously thinking, researching or even striving for best practices to incorporate into legislation that is before the House for consideration and focus their energies on procedural matters

Absence of a sunset clause— If a bad law is enacted, it remains on the statute books for at least a century

Recent Trend: The usage of House majorities to get even Private Members’ Bills defeated at the introduction stage thus, restricting whatever little space individual members have left for legislative activity

Increasing Moral Deviations & Anti-Defection Policies:

• Criminalisation of politics, disrespect to parliamentary conventions, parliamentary disruptions and improper conduct of members, has added to the glaring legislative paralysis.
• The intention behind bringing in Anti-Defection law was to curb political defections, promote party discipline and bring stability in the structures of political parties; on the contrary, it has led to the following:
  • Curbs the Right to Dissent & Freedom of Conscience
  • Ban on retail defections & legalisation of wholesale defections

The Way forward:

• There is a need to prevent unholy alliances. Parties form post-poll coalitions with the opposing parties only to form government, even when the ideologies do not match and against the wishes of elected legislators, as happened in case of Karnataka. 
• Parties should promote internal democracy for the member to express their opinion on important matters concerning parties, like with whom to form coalition, who should be chief minister etc.

Keeping defections in check ensures stability of governance and helps in keeping up with the mandate of people. Thus, to uphold this spirit, reforms within the parties are required apart from the legal solution.

Must read: All about Whip

Do you know?

Disqualification vs Resignation

• A disqualified member cannot become a Minister without getting elected again, whereas one who resigns can be inducted into an alternative Cabinet without being a member. 
• Accepting a resignation is a simple function of being satisfied if it is voluntary, while disqualification is decided on evidence and inquiry.   
• Converting resignation into a disqualification matter is an attempt to deny a member’s right to quit his seat in the legislature before joining another party, even if the crossing-over is a politically expedient measure. 

Role of Speaker 

• The Speaker already enjoys extraordinary powers under the Constitution. 
• In addition to immunity from judicial scrutiny for legislative matters, such as whether a Bill is a money bill, presiding officers get to decide whether a member has incurred disqualification under the anti-defection law. 
• Though the decision is subject to judicial review, many Speakers have evaded judicial scrutiny by merely not acting on disqualification matters. 
• The question whether the Speaker’s inaction can be challenged in court is pending before another Constitution Bench. 
• Telangana, Andhra Pradesh and Tamil Nadu have instances of Speakers not acting on disqualification questions for years.

Connecting the Dots:

1. Discuss the concerns against anti-defection laws suggest the possible reforms that can be made to anti-defection law?
2. Recent developments in Karnataka and Goa legislative assemblies prove that the political problem of defection can’t be addressed by the legal solution of the anti-defection law. Comment.  
3. The anti-defection law and issuance of whips by political parties curtail the freedom of independence of mps. Critically analyse.
4. What reasons would you attribute to the decline of parliamentary standards? Can you suggest some remedies?