Tenth Schedule: Brief Overview
Webster defines Defection as a conscious abandonment of allegiance or duty (i) while MacMillan defines it simply as an act of leaving one’s country or political party to go to another one. (ii) This understanding of the word indicates that there is a connotation of hostility attached to the word, which necessarily implies that the person defecting is doing so with the intent of evading or breaching some duty and obligation impending upon him. But the law is more than that, it also includes in itself circumstances when an MLA or MP merely chooses to put his independent will over that of the party and vote in a manner contrary to what is suggested by his party.
The Tenth Schedule was included in the Constitution by the 52nd Constitutional Amendment (iii) under the Rajiv Gandhi Government, in the year 1985. Accordingly, Article 101, 102, 190 and 191 were also amended. It provides for a procedure of disqualification of the legislator on the ground of his defection to another party, by the order of the presiding officer, upon the petition of any other complainant member of the house. The act was brought in with the intent of ‘curbing the evil of political defection’. (iv)
Issues related to Legality
Prevention of malicious political defections requires certain restrictions to be put on the MPs/MLAs, which in-turn end-up affecting their rights and vitiating the efficiency of the deliberative democracy. Such as:
1) Violative of Freedom of speech and expression as well as Freedom of Association As per Article 19 (1) (a) & (b) of the Indian Constitution
The rationale that is often cited behind such restrictions is that there should be a conviction on part of the MPs/MLAs to uphold and preserve the aims and objectives of his/her party. But more practical scrutiny over the problem would suggest that such defection is rarely caused by the ideological conflicts between the MPs/MLAs but are mostly the product of opportunism and selfish interests, as it was seen in the recent political scuffle in the Karnataka-elections. (v)
The restrictions imposed by the Tenth Schedule can create a Chilling Effect on the MPs/MLAs because if they decide to criticise the party’s policies in their constituencies they will also be expected to vote against such stances in their respective legislative houses, otherwise, they will be called out for hypocrisy. In that case, knowing that voting against party’s stance may cause the MP/MLA his seat and party membership, he’s very unlikely to express his/her real views with conviction as he/she will be forced to put up a façade of consistency with the views of the party. This in effect violates the Right to freely express and associate within the assemblies that the MPs/MLAs want to. (vi)
2) Confusing Dissent with Defection and thereby hampering the Deliberate Democracy
The parliament consists of as many as 765 (545+250) legislators voicing the concerns of their constituencies widespread across the nation, given each voice its due share, a large accumulation of the information representing diverse interests of the society and variegated voices can be assessed, bettering the pertinence of the legislation-making process. One of the main benefits of the parliament is the scope to accommodate the number of views and display the Wisdom of Multitude. (vii)
The discussion in a parliament should be done in a way that shows the different viewpoints, be it concurrence or disagreements in the polity. But, when the dissenting voice is blatantly connected to the act of defection, it discourages the parliamentary ability to gauge a well-delineated chart of opinions. The anti-defection laws put restrictions on the parliamentary freedoms of the members and affect the democracy, but this cost to democracy is further aggravated when the highly centralised parties do not provide for the intra-party discussions also. If there exists such active culture of internal discussions within the party, the impositions by the anti-defection laws might still be not as harmful to the democracy as they are, but such stances are not inherent to the type of political culture that is cultivated in India.
3) No rationale in allowing a Merger
The Rule 4 of the Tenth Schedule provides with an exception to the merger of parties, or simply it condones the defection done when done by the two-third members of the party, however, no rationale is given behind such distinction. This again points towards a loophole in the law, in a way promoting the “Wholesale” defection but not the “Retail” defection. (viii)
4) Authority of the Presiding Officer
As per Rule 6, the decision on the disqualification petition by the members against their fellow members is taken by the presiding officer of the house. However, naturally, there is a vast scope of political influence on the presiding officer, who happens to be a member of one of the political parties only. Secondly, the presiding officer need not necessarily be well versed with the legal know-how every time, hence, there is a scope of the inadequacy of legal application of laws.
Times have now changed and so has political dynamics. As suggested by the 170th Law Commission Report (1990) (ix), a more efficacious remedy would be to ban the party-changer from holding ministership or other offices. Issuance of whips should also be limited to no-confidence motions. (x) A balance needs to be struck between dissent and defection so that the law, in an attempt to preserve the democratic form of government, do not end up stifling the Democracy.
On a sharp contrast, in Kihoto Hollohon v. Zachilhu and Others, (xi) the Supreme Court held that the X-Schedule is not in violation of Fundamental Right to Speech and Expression. It is the duty of the MP/MLA to provide strength to the shared beliefs of the party and to provide it with political stability. If opinions of individual will be given preference over the collective interests of the party, there will be no party left to sustain, which in turn will be an even bigger blow to the democracy.
- “Defection”, Merriam-Webster, 2019. Available at https://www.merriam-webster.com/dictionary/defection.
- “Defection”, MacMillan, 2019. Available at https://www.macmillandictionary.com/dictionary/british/defect.
- The Constitution (52ndAmendment) Act, 1985, Available at http://indiacode.nic.in/coiweb/amend/amend52.htm.
- P. Jain, Indian Constitutional Law 1984 (5th ed. Vol. 2 2003).
- Karnataka crisis: Anti-defection law makes false assumption that party is always right, curbs legislators’ freedom of choice. Available at, https://www.firstpost.com/politics/karnataka-crisis-anti-defection-law-makes-false-assumption-that-party-is-always-right-curbs-legislators-freedom-of-choice-4474995.html. (Last visited, 9th June, 2019).
- Gautam Bhatia,The Absence of Deliberative Democracy – The Fetters of the Anti-Defection Law. Available at https://indconlawphil.wordpress.com/2018/06/24/guest-post-the-absence-of-deliberative-democracy-the-fetters-of-the-anti-defection-law/. (Last visited 9th June, 2019).
- Diwan, Paras. “AYA RAM GAYA RAM: THE POLITICS OF DEFECTION” Journal of the Indian Law Institute, vol. 21, no. 3, 1979, pp. 291–312. JSTOR, jstor.org/stable/43950639. (last viewed on 9th June, 2019).
- S. Visweswaraiah. “DEPLORABLE DEFECTIONS: IN SEARCH OF A PANACEA” Journal of the Indian Law Institute, Vol. 39, No. 1 (January-March 1997), pp. 47-66. JSTOR, https://www.jstor.org/stable/43951678. (last viewed on 9th June, 2019).
- 170th Law Commission Report (1990). Available at http://www.lawcommissionofindia.nic.in/lc170.htm (last viewed on 9th June, 2019).
- Pardeep Sachdeva, “COMBATING POLITICAL CORRUPTION: A CRITIQUE OF ANTI-DEFECTION LEGISLATION” The Indian Journal of Political Science, Vol. 50, No. 2 (April – June 1989), pp. 157-168. JSTOR, jstor.org/stable/41855903. (last viewed on 9th June, 2019).
- Kihoto Hollohon v. Zachilhu and Others, AIR 1993 SC 412.
Tanmay is a student of NALSAR University of Law, Hyderabad
Image credits: IAS Express