Authored by Saumya Tripathi and Abhinav Patel, 2nd-year law students at RMLNLU, Lucknow
The Debate Surrounding the 10th Schedule – Scrap it or Keep it?
It was true when Atal Bihari Vajpayee said that the syndrome of political defections was yet to find a remedy, way back in 2003, but the greater problem is that two decades later, we are still stuck on the same page of the book. The current anti-defection law has failed to curb defections and has instead created yet easier ways to defect by circumventing the provisions of the law. The legislators betray the electorate by changing parties after being elected. As always, the voter is taken for granted and is left helpless against the legislator who has committed fraud on the constitution and undermined trust in the electoral process. People’s hard-earned money is used to fund the elections but much to their dismay, there is no sufficient accountability for the electoral process.
In the years following its enactment, the anti-defection law in India emerged as a toothless tiger. With various loopholes and natural “escape mechanisms” contrary to its object and intent, it creates many safe exit routes for the parliamentarians to defect without being held accountable. It has sparked a debate around whether it has been over-exploited to the extent to be scrapped entirely or amended to check the mischief of defection.
In this blog, the authors present a constructive critique of the anti-defection law, highlighting the inadequacies of the Tenth Schedule and the potential solutions aimed at curbing the menace of defection. To this end, the blog piece is divided into two parts, the first part aims at addressing the complications with the specific provisions under the Tenth Schedule, whose blatant misuse has jeopardised the entire democratic process of election and the public trust, and the second part suggests the necessary reforms to breathe a new wave of life in the defection laws to reinstate its credibility and purpose with which it was enacted.
Dissecting the Defection Law: Where does it Fail?
The Obscurity in the Definition of ‘Voluntarily Leaving the Party’
One of the parameters of incurring disqualification on the grounds of defection, as enumerated under para 2 of the Tenth schedule, is “voluntarily leaving the party”. The problem lies in the variety of the interpretations it has been subjected to, apart from its plain meaning, i.e. resigning from the party. Conduct ranging from a violation of the whip, meeting the Governor with members of another political party with the support to form the government, and even travelling together with the opposition to meet the Governor all lead to implied voluntary leaving of the party and hence amount to defection. The Halim Committee, in its report way back in 1998, had also suggested giving a clear definition to the phrase ‘voluntarily leaving the party’, but owing to the government’s inaction, this recommendation was neither given due consideration nor included in the anti-defection law.
The Misused Exception of a Merger or Bulk Defection
The exception pertaining to split and merger under the Tenth Schedule was to safeguard democratic dissent. However, the constitutional flaw lies in the way the provisions of para 4 have been enacted. Para 4(1) asserts that a house member will not be disqualified if their original political party merges with another, i.e. if they have joined the new party formed by the merger. Provided, a merger is valid only if at least two-thirds of the legislative party members agree to merge. This paves the way for insidious corruption, where two-thirds of the legislative party can be influenced by foul means to either topple the government or bolster a narrow majority of the ruling party.
If we take recourse to the Constitutional Assembly debates and the intent of the Tenth Schedule, we can observe that the split and merge provisions were granted as an exemption to safeguard the principled defections. However, the mergers have been strategically crafted to bring down the government. The defectors either declare themselves as the original political party once they gather two-thirds support or merge with another party.
While the 91st Amendment has obliterated the defence of split, the members can still save themselves from the defection proceedings if two-thirds of the members agree to merge. The provision in para 4 of the Tenth Schedule, enabling this split instead of providing a remedy, has rather exacerbated the political instability. Defecting legislators undermines the public trust and confidence by cross-carpeting after elections, thereby hindering effective governance, which is a clear breach of social contract.
The impetus to defect is gathered more because the parties only need to depict the merger between their legislative wings, which comprises the elected legislators on the party’s ticket and not the parties in toto, i.e. the entire organisational structure, including the workers, members, spokespersons, etc. Valid mergers are comfortably pulled off in such scenarios as incentivising the defection of the legislative wing is easier, which gets easily lured by the ministerial posts and monetary gains. To avoid this systemic fiasco, para 4 of the Tenth Schedule should be repealed to eliminate at least one of the ailments from which the Tenth Schedule suffers. This also aligns with the Law Commission's 170th report, which suggested the deletion of the exception provided for mergers.
The Romanticisation of the Neutrality of Speakers
Among the major controversies surrounding the defection law, the most fervently contested issue relates to the Speaker's role in adjudicating the disqualification petitions. The trend of Speakers deviating from the constitutional mandate of impartiality due to their allegiance to their political party has become rampant. Often, the Speaker ensures that the disqualification proceedings against the majority party legislators are interminably prolonged, extending the protection of laws for them till the legislature dissolves. This, in fact, is a classic example of delaying justice, only to deny it at the end.
The peculiarity of the facts in the Maharashtra Legislative Assembly case poses a substantial question on the neutrality of the Speaker. The Speaker who was supposed to decide the disqualification of defecting MLAs had assumed the office with the support of their votes. Similarly, in the case of the Karnataka Legislative Assembly, the Speaker had made an inordinate delay of as long as three years in deciding the petitions. This made the entire exercise de facto infructuous. The Supreme Court ultimately intervened and directed the Speaker to decide the petitions within three months. All of these incidents have raised questions about the credibility of the Speaker in deciding disqualification petitions.
In the landmark decision of Kihoto Hollohan, the absolute power that the Speaker enjoyed over the adjudication of the disqualification petitions was diluted by subjecting his decision to judicial scrutiny. However, on the point regarding the impartiality of the Speaker, the court speaking through the minority observed that the Speaker’s authority was dependent on the votes of the majority legislators, and hence, the presumptive bias in his decisions could not be ignored.
The idealism of impartiality attached to the dignity of the office of the Speaker seems erroneous, as human nature is not infallible. In most cases, the Speaker, who is from the ruling party, is unable to sever all political ties with the majority party, which leads to partisanship. This further jeopardises the principle of natural justice, nemo judex in causa sua (no one can be a judge in his own cause), which also violates the basic structure of the Constitution, the rule of law and principles of natural justice being constitutionally guaranteed rights.
In the Manipur Assembly case, concerns were raised over the misuse of the provisions of the Tenth Schedule, and the apex court observed that it is time to give a second thought to whether the Speaker must be made the decision-making authority even when he is connected to the political party de facto or de jure.
Despite these concerns, the Supreme Court refused to interfere in adjudicating the pending disqualification petitions in the Maharashtra Legislative Assembly case. In that case, the Speaker had also been elected by the votes of the defecting MLAs, which was an apparent conflict of interests. Even in that situation, the court exemplified the trust in the Speaker’s office, which is constitutionally granted the stature of a neutral position but, due to the unfortunate nature of politics, has been losing its credibility.
The Conundrum of the Balance between the Right to Resign and the Anti-Defection Law
One of the clandestine routes used by the legislators to escape defection is a deft way of bypassing the anti-defection law. The concerned member receives an offer from the opposition to get a high ministerial position in the government, which is formed by their collusion after toppling the ruling government. After that, the member tenders his resignation from the post of legislator to the Speaker while proceedings for defection are pending against him. Given this, he seeks re-election from the ticket of another party. This brings us to a crossroads between the constitutional right to resign from the post of legislator and the anti-defection law. In this scenario, the Speaker cannot refuse to accept the resignation, which is precisely the problem. If he accepts the resignation, it will create political instability, and defectors will escape the anti-defection law, but if he does not accept the resignation, it will go against the mandate of the Constitution. A balance between these provisions ought to be made in order to ensure a stable government and reinforce the objectives of the Tenth Schedule of the Constitution.
The Bottomline: Suggestions for the Law-Makers
Though enacted with noble intentions, the anti-defection law has drawn severe criticism from legal jurists, academicians and judges amidst the political turmoil in Karnataka, Maharashtra and Goa, the fiasco of the anti-defection law in catering to its intent has instigated a discussion upon the much-needed reforms to ensure that the law serves its intended purpose without compromising the democratic values it seeks to protect. The following solutions can be adopted to make the Anti-defection law more effective and efficient.
Independent Mechanism for Deciding Disqualification Petitions
Article 103 of the Constitution, which provides for the deciding authority for disqualification of legislators on general grounds listed in Article 102(1), authorises the President to act on the advice of the Election Commission to make decisions pertaining to disqualification. However, it is pertinent to note that the procedure to decide disqualification proceedings under the Tenth schedule is in stark contrast to this. The Tenth Schedule makes the Speaker the sole adjudication authority, whereas Article 103 decentralises the power between the President and the Election Commission, thereby reducing the chances of any bias and ensuring fairness in the decisions. Even the Dinesh Goswami Committee had suggested the removal of this discrepancy. But interestingly, this was never considered by the legislators.
Along similar lines, a Tribunal consisting of a retired judge or some other independent mechanism can be created in order to ensure that such disputes are decided both swiftly and impartially. Additionally, a Tribunal ensures that the decision-making power is not concentrated in the hands of a single person and thus acts as a check to the unfettered use of power.
Mandatory Re-election on Defection
The provisions of the Tenth Schedule lead to the creation of an unnecessary distinction between individual and bulk defection of two-thirds of members of a political party. Any person who defects betrays the electorate. A simple rule that could be quite effective in nullifying the effect of defections would be that any person changing party affiliation must resign and seek re-election or must be barred from the election or from holding any public office for five years from the date of disqualification.
This ensures that the voters are the decision makers of whether they want to vote for the candidate who has changed the party or not. Moreover, if incorporated, this will wash out the need to have any adjudicatory authority like the Speaker in such a simple yet effective system.
Vesting the authority to adjudicate disqualification petitions with the Election Commission
Alternatively, the authority to adjudicate anti-defection proceedings can also be assigned to the Election Commission of India (ECI), which was a key recommendation of the Halim Committee.
Notably, Bangladesh entrusts its Election Commission with defection matters under Article 66(4) of its Constitution. This article states that the Speaker must refer the disqualification proceedings to the Election Commission. If the Election Commission determines that members have vacated their seats through defection, they cease to be members. This constitutional provision designates the Election Commission, rather than the Speaker, as the authority to resolve such disputes. Assigning this role to the Election Commission in India would ensure that political considerations do not influence the adjudicatory authority.
Conclusion
Conclusively, the Anti-Defection law has failed to achieve its goal of upholding political integrity. The misuses it has been subjected to have overshadowed its advantages. The ambiguity of the terms used, the abuse of the merger provision and the inherent bias in the Speaker’s decision all have contributed to its ineffectiveness. Urgent reforms are needed to save the letter and spirit of the law. Most significantly, ensuring that the adjudicatory mechanism for defection proceedings is fair, scraping off the defence of merger and replacing it with mandatory re-election of the concerned candidate will contribute towards ensuring accountability and bolstering the efficacy of the Anti-defection law.