Constitutional validity of Tenth Schedule

Author- Sakshi Singh,

a student at Maharashtra National Law University Aurangabad

With the emergence of various political parties, the Indian population is

provided with diverse ideologies and opportunities to select their
representatives. Thus, the need for political parties to put in all their might into
winning, this free and fair competition, is natural and but obvious. The political
parties, the elections that are held, and the voting populace play their part to
ensure a vibrant democracy. But this utopian, or so to say, idealistic phenomena
is interrupted with some botheration, one of them being defections. The
phenomenon of defections has not been an anomaly in Indian politics. Defection
is the subversion of election mandates by elected lawmakers who, at the
enticement of ministerial slots or financial rewards, decide to defect from one
party to another. It has been the bone of contention with respect to the stability
of any government since a long time. To tackle this, the Tenth Schedule was
enacted through the 52nd Amendment Act, 1985 with the hope to prevent this
political horse-trading. This Act lays down provisions regarding disqualification
of MPs and MLAs to curb opportunistic defections, yet its constitutional
validity has been debated and scrutinised.
One of its major shortcomings is related to the Rule 4, which generates a
loophole in the law, by providing exceptions from disqualification on the
grounds of a merger. When a political party joins with another, the clause
generally protects its members, provided that at least two thirds of the members
of the relevant legislature have approved the merger. The exemption appears to
be flawed because it is focused on membership size rather than the cause of
defection. The availability of lucrative office or ministerial posts with the other
party appears to be the common cause of defection among individual members.
It is reasonable to assume that the two thirds of members who approved the
merger may have the same rationale.
Another major lacuna is related to the Rule 2(1)(a) of the Tenth Schedule, which
thereby mentions disqualification when a member of the House voluntarily
gives up the membership of his party. Herein, the paragraph has ambiguity
regarding whether engaging in activities that, in theory, do not equate to
renouncing party membership—such as working against the party's interests or
endorsing a rival candidate in an election—may be regarded as the member
voluntarily giving up their party membership.
Rule 2 of the Schedule seems to restrict the legislator's freedom to resist
unfavourable party activities, policies, leaders, and laws by placing party
members in an array of loyalty to the party whip and policies. In this way, the
political party rules over its members, preventing them from voicing any
disagreement. In a sense, this goes against the representative democracy's tenet
that members must submit to the highest authority rather than the will of the
populace.
The Speaker's discretionary powers in determining disqualification cases have
drawn criticism from certain who argue such could be prone to political
prejudice and compromise the fundamentals of natural justice. As per Rule 6,
the decision made by the Speaker is final, although he is not bound by any time
constraints to make it. It is only when the Speaker has made his decision public
that a party may file a lawsuit. According to the recommendations of the
Election Commission and the Dinesh Goswami Committee on Electoral
Reforms, the President or the Governor of the State should have the authority to
decide whether someone is disqualified under the Tenth Schedule. They will
follow the Election Commission's guidance in making this decision.
Nevertheless, the Act hasn't been changed to implement these proposals.
Rule 7 prohibits the courts' jurisdiction over any issue related to a House
member's disqualification, so no court, including the Supreme Court under
Article 136 and High Courts under Articles 226 and 227 of the Constitution, has
the authority to review the Speaker's decisions in this regard. In a number of
rulings, the Supreme Court has maintained that the legislation is constitutional
in all respects with the exception of the judicial review clause, which was ruled
to be unconstitutional. However, the Tenth Schedule has not been amended in
this regard despite multiple court rulings supporting the Courts' authority to
conduct judicial review.
Afresh, the anti-defection law and the functions of the Governor and Deputy
Speaker have come under scrutiny due to the political crisis that has emerged in
Maharashtra. During a hearing about the political disagreement between
Uddhav Thackeray, the former chief minister of Maharashtra, and incumbent
Eknath Shinde, the Supreme Court noted that the anti-defection rule is
applicable even in cases where a faction leaves a political party and manages to
form a majority inside it.
Prior to this, in Keisham Meghachandra v. the Hon'ble Speaker Manipur, Justice
Rohinton Nariman talked of the need to set an external means to deal with
defection cases in order to guarantee the prompt and impartial resolution of such
disputes, giving the Tenth Schedule's provisions—which are so essential to the
smooth operation of our democracy—actual teeth.
Such instances point towards the fact that the Tenth Schedule does in fact aim to
curb the mass defection but there’s still a long way to go. Protecting elected
representatives' rights while maintaining political stability is a fine line that
determines whether the Tenth Schedule is constitutional. Even though the Anti-
Defection Law has been affirmed by the Supreme Court, the law's interpretation
and implementation are still being shaped by ongoing discussions and legal
challenges. Constitutional criticism of the Tenth Schedule is expected to
continue as India's political climate changes, underscoring the necessity for a
sophisticated comprehension of the difficult balance between individual
liberties and party discipline in a democracy.