Disqualification under Tenth Schedule

Indian Polity

Topic: General Studies 2:

• Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these. 

Disqualification under Tenth Schedule

Context: In a first, the Supreme Court removed Manipur Minister Thounaojam Shyamkumar Singh, against whom disqualification petitions were pending before the Speaker since 2017

Further, the court restrained him “from entering the Legislative Assembly till further orders”.

Brief Background of the case

• The concerned person had become an MLA in 2017 on a Congress ticket before switching to the BJP to become Minister in Manipur State Government.
• A disqualification petition against the minister was pending before the Speaker since 2017 but the Speaker failed to take the decision within a reasonable time period.
•  On 21st January 2020, a three-judge Supreme Court Bench had asked the Speaker of Manipur Legislative Assembly to decide the disqualification (under Tenth Schedule) petitions of the concerned MLA within four weeks. It also gave other pronouncements (discussed below)
• Supreme Court invoked its extraordinary powers under Article 142 of the Constitution to remove the minister from the Cabinet.

Disqualification under the Tenth Schedule

• The anti-defection law is contained in the 10th Schedule of the Constitution and was enacted by Parliament Constitution (52nd Amendment) Act, 1985. 
• Legislators used to change parties frequently bringing in Political Instability and was also considered as betraying the mandate of voters (who voted for the legislator considering his political party)
• The purpose of 10th Schedule is to curb political defection by the legislators. 
• There are two grounds on which a member of a legislature can be disqualified.
  • One, if the member voluntarily gives up the membership of the party
  • Second, if a legislator votes in the House against the direction of his party and such act has not been condoned by the party within 15 days
•  However, there is an exception – if there is a merger between two political parties and two-thirds of the members of a legislature party agree to the merger, they will not be disqualified.
• The Presiding officer of the House (Speaker/Chairman) is the adjudicating authority with regard to disqualification of legislators under the Tenth Schedule.

Criticism of the anti-defection Law

• Curbs the freedom of speech & expression of law makers
• Tyranny of Political Parties: Legislators have to abide by the line taken by Political parties even it is against their own stand or against the interest of her constituency
• Role of the Speaker is biased: Speaker who is a member of a political party is often not neutral and comes under the influence of his political party instead of deciding the cases on merit
• Delay in decision making: several presiding officers have allowed defectors to bolster the strength of ruling parties and even be sworn in Ministers by merely refraining from adjudicating on complaints against them

Supreme Court Judgement in Kihoto Hollohan (1992) case: 

• Five Judge Bench of SC upheld the validity of the Constitution’s Tenth Schedule.
• It was also held in this case that a Speaker or a Chairman, acting Tenth Schedule, is a Tribunal and thus his discretionary powers were protected by Constitution. (Dissenting view by Justice JS Verma  questioned the fairness of speaker in adjudication)
• This verdict had also made the Speaker’s order subject to judicial review on limited grounds and that mere procedural infirmities could not prompt judicial intervention.
• It was also held that judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman. 

Supreme Court in its 21st Jan 2020 order gave the following pronouncements

• Reasonable Time period for deciding on Disqualification

• • Unless there were “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months 
  • Failure to deliver decision by Speaker within a reasonable time period will entail the court to intervene in the disqualification matter (as has happened now in this case)

• Suggested an Independent Body 

• • SC asked the Parliament to consider having an independent and permanent body to decide disqualification petition, which requires an amendment to the constitution.
  • Given the fact that a Speaker belongs to a particular political party, the Court mooted this idea
  • Also, Speaker wasn’t adjudicating election disputes or disqualification of members under Articles 103/ 192/ 329 for good reason, because their fairness could be suspected.

Way Forward:

• The Constitution is called a living document because of its ability to grow and change with time and circumstances. Clearly, the Tenth Schedule has fallen short in fulfilling its objective of preventing defections and needs a relook.
• Parliament must fix this flaw and institute a tribunal recognising the significance of anti-defection provisions in upholding the sanctity of Parliament.

Connecting the dots:

• Speakers role in deciding whether the bill is money bill or not
• Britain’s model of Speaker’s post