Understanding the Tenth Schedule

Subject: Polity

Section: Elections

Context:

The Speaker of the Maharashtra Legislative Assembly has refused to disqualify 40 MLAs of the Eknath Sindhe faction after recognising it as the real Shiv Sena.

About Defection

In Legislature, a defector is a person who gives up allegiance to one party in exchange for allegiance to another, changing sides in a way which is considered illegitimate by the first party.
In India, the defections of legislators during the 1960s and 70s from their parent parties created political instability in many States, bringing down elected governments.
Therefore, to ensure the stability of elected governments, the 52nd constitutional amendment introduced the ‘anti-defection’ law through the Tenth Schedule in 1985.

What is Anti-Defection Law?

The 52nd Amendment Act, 1985 provided for the disqualification of the members of Parliament and state legislatures on the ground of defection from one political party to another.
Through this amendment, a new Schedule i.e. Schedule 10 was added to the Constitution.This act is often referred to as the ‘anti-defection law’.
Later, the 91st Amendment Act, 2003 made one change in the provisions of the Tenth Schedule.Itomitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

Various Features of the Act:

The Tenth Schedule contains the following provisions with respect to the disqualification of members of Parliament and the state legislatures on the ground of defection.
Disqualification:
- Members of Political Parties:
- If he voluntarily gives up his membership of such political party; or
- If he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party.
- Independent Members:
- An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.
- Nominated Members:
- A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.
- Exceptions:
- If a member goes out of his party as a result of a merger of the party with another party.
- A merger takes place when two- thirds of the members of the party have agreed to such merger.
- If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or re-joins it after he ceases to hold that office.

Deciding Authority:

Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.
In KihotoHollohan case (1993), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, function as a tribunal.
Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.

Important Judgements w.r.t. Anti-Defection Law:

In KihotoHollohan case, the Supreme Court held that the law is valid in all respects, expect on the matter about judicial review, which was held to be unconstitutional.
In Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque case, the court held that if the member of the party publicly opposes his original party and supports the other the party then this act deems to be a resignation from the party.
In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly case, the question was raised regarding the jurisdiction of Speaker or Presiding Officers.
The court held that there is no provision in the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.

Benefits of Anti-Defection Law:

It provides for greater stability in the body politic by checking the propensity of legislators to change parties.
It facilitates democratic realignment of parties in the legislature by way of merger of parties.
It reduces corruption at the political level as well as non- developmental expenditure incurred on irregular elections.
It gives, for the first time, a clear-cut constitutional recognition to the existence of political parties.

Criticism of the Anti-Defection Law:

The law does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
Its discrimination between an independent member and a nominated member is contradictory. If the former joins a party, he is disqualified while the latter is allowed to do the same.