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Writer's pictureSakshi Komal Dubey

ANALYZING THE IRRATIONALITIES IN SCHEDULE 10 OF THE CONSTITUTION OF INDIA

Author- Sakshi Komal Dubey*

Editor- Manishikha Mondal


INTRODUCTION


We sleep voting our elected ministers belonging to one party and wake up to see them in another; how fair is this to the voters? Defection is "desertion by a member or members of one party from their existing party to another political party." Defecting from one party to another is not something new to Indian politics, from Aya Ram Gaya Ram to the Royal Summersault by Jyotiraditya Scindia[1]. One way or another, everyone will exploit the loopholes; humans are greedy, of power and pride.


What is new to Indian defections is that they have been phenomenal, unprincipled, opportunistic, and posed a severe threat to the Indian democracy. The Parliament by 52nd Amendment brought the 10th Schedule to the Constitution to prevent rampant defections and protect the people's votes. However, it has been reduced to just a mere on-paper protective device whose rules are being flouted publicly now and then during elections, as the law applies to both the Houses of Parliament and State Assemblies.



PROVISIONS


Section 2 and 4 of the 10th Schedule or Anti-Defection Law states disqualification on the grounds of defection and its exceptions, respectively. To summarize Section 2, a legislator is considered to have defected from the party if he either voluntarily gives up his party's membership or defies the party's directions on a vote. This means that if a legislator abstains or votes against the party's direction or whips on any issue, he can lose his membership of the House. The legislators, i.e., Member of Parliament (MP) and Member of Legislative Assembly (MLA), can be disqualified by the Speaker or Presiding Officer of a legislature based on a petition by any other member of the House.


To summarize Section 4, the Rule exempts defection if a party merges with or into another party provided that at least two-thirds of its legislators are in favor of the merger. In such a situation, neither the members who agree to merge nor others who stay in their original party face disqualification. The Constitutional Amendment of 2003 narrowed the permissible exceptions to this prohibition only to a minimum of two-third of the legislators rather than one-third as stated in the original clause.


INTERPRETATION

As we know, the responsibilities of the Judicial Bodies are to interpret the 'question of law' by the provisions laid down by the Legislators. In G. Viswanathan v. The Hon'ble Speaker, TNLA [2], the Court held that members who publicly express dissent or opposition to their party or support for another party would be considered to have resigned. The phrase 'Voluntarily gives up his membership' has a broader connotation than resignation; MPs were considered to have 'voluntarily given up their membership'[3]. If they engage in anti-party activities, i.e., criticizing the party publicly via media on multiple occasions, and attending rallies of the opposition parties[4], therefore shall be disqualified.


In the case of Speaker Orissa Legislative Assembly v. Utkal Keshari Parida [5], the Apex Court held that any interested person having good faith and intention could file a disqualified petition and the rules framed to exercise the powers conferred under Section 8 of the 10th Schedule cannot override provisions of Section 2. Section 8 of the Anti-Defection Law lays down powers of the Chairman or the Speaker to make rules or lay down procedures to give effect to Schedule 10.


IRRATIONALITIES


1. Puppet of the Party


The application of the provision is not limited to 'confidence motion' or 'money bills' (which are quasi-confidence motions). It applies to all votes in the House, on every bill and every issue. The provision even applies to the proceedings of Rajya Sabha and State Legislative Councils, which have no contribution to the stability of a government. Section 2 of the 10th Schedule, which lays down rules of disqualification, falls short of pragmatism, wherein it restrains an MP or MLA from voting in the representation of their choice or the choice of whom they represent. They are mended to follow the party's directions blindly, which is a blatant miscarriage of representative democracy.


Members of Parliament are representatives of voters and are believed to represent the choices of the masses and expected to vote in conscience with the benefit of their constituents. Their duty as a representative is to the people who have voted for them, providing power and not to their party.This makes the member neither an envoy of the constituency they are set to represent nor a national legislator but a mere puppet of the party [6].


2. Accountability


The process of impeachment of the United States' President is similar to India. It is a process where all the members of the House vote for or against the motion. It has been seen that several members from the Presidents' party in the U.S., the Senate voted against the President. Such commissions do not hold any legal repercussions on the Senate of the United States. Though the party may take action in their capacity at their discretion, there are no legal or political repercussions of such commissions of voting against the mandate of the party. If the situation may arise, the voters may decide to reject the legislator for re-election, which is reasoned as the core element of representative democracy.


The federal Parliamentary structure aims to make legislators accountable to voters and the government accountable to the legislators. In India, this structure of accountability and responsibility is fragmented when the legislators are made solely accountable to the party. The legislators have to adhere to the direction given by the party, ignoring their choices. They are bottled as just another number that could be used to benefit the party in retaining the ruling party's position. The needs of the population of one state's constituency are different. The idea of collective representation falls short here.


3. Role of the Speaker

In the landmark case of Kihoto Hollohon v. Zachilhu [7], the Supreme Court, while providing the judgment, struck down the condition that the Speaker is not subject to judicial review as decided in Dr. Kashinath G Jalmi v. The Speaker [8], thereby allowing appeals against the Speaker's decision in the High Court and Supreme Court. However, the problem begins where it was held that there cannot be any judicial intervention until the Speaker gives his order. The law does not lay down a period for the Speaker to decide on a disqualification appeal [9]. If the Speaker is from the ruling party, he might intentionally delay deciding on the disqualifications, making extensive use of the loopholes present in the law. Moreover, the Speaker should know the law and expertise to decide upon such cases.


In Haryana Vidhan Sabha v. Kuldeep Bishnoi [10], the Courts have expressed concern about the unnecessary delay in deciding such petitions. This has led to bizarre situations wherein a member who continues to be part of the main Opposition party becomes Minister in the ruling party. Though the Supreme Court in Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur [11] has tried to imbibe this ruling that the Speaker should decide over disqualification in three months, it is not clear what would happen if a Speaker does not do so.


The Law Commission of 2015 and Dinesh Goswami Committee have recommended an alternative, that defection cases must be decided by the President or Governor for Centre and States respectively, who shall act on the advice of the Election Commission.


CONCLUSION

Can it be said that the lawmakers, while making the law, left a door open for themselves to make blatant use of it "legally"? What can be done when the saviors of the law become its perpetrators. The irregularities or loopholes of the 10th Schedule are widely recognized. The need for amendments in the 10th Schedule is the need of the hour.


The parties need to address the real problems 'inside their party' with their members and harmonize the relationship and not jeopardize the people's votes only to ensure their majority in the House and make the legislator a mere digit in their support. The legislators should see beyond money or muscle power and work in the conscience of the provisions and make sure they are not flouted.

REFERENCE


  1. A Royal Summersault: On Jyotiraditya Scindia's Defection, THE HINDU (Mar. 12, 2020, 12:29 PM), www.thehindu.com/opinion/editorial/a-royal-somersault-the-hindu-editorial-on-jyotiraditya-scindias-defection/article31043253.ece.

  2. G.Viswanathan v. The Hon'ble Speaker, TNLA 1996 AIR 1060 SCC (2) 353.

  3. Ravi Naik v. Union of India 1994 AIR 1558 SCR (1) 754.

  4. Parliamentary Bulletin Part II (Dec 4, 2017), http://164.100.47.5/newsite/bulletin2/Bull_No.aspx?number=57066.

  5. Speaker Orissa Legislative Assembly v. Utkal Keshari Parida 2013 11 SCC 794.

  6. M. R. Madhavan, The absurdity of the anti-defection law, THE HINDU (Feb. 26, 2021, 00: 25 AM), https://www.thehindu.com/opinion/lead/the-absurdity-of-the-anti-defection-law/article33935666.ece.

  7. Kihoto Hollohon v. Zachilhu & Ors. 1992 SCR (1) 686 SCC Supl. (2) 651.

  8. Dr. Kashinath G Jalmi & Anr. v. The Speaker & Ors. 1993 AIR 1873 SCR (2) 820.

  9. Vibhor Rehlan, The Anti-Defection Law Explained, PRS (Dec. 6, 2017), https://www.prsindia.org/theprsblog/anti-defection-law-explained.

  10. Speaker Haryana Vidhan Sabha v. Kuldeep Bishnoi & Ors. 2012.

  11. Keisham Meghachandra Singh v. The Hon'ble Speaker Manipur 2020.


*The Author is a 1st Year law student at Vivekananda Institute of Professional Studies.


Disclaimer: The opinions and views in this article are personal and independent opinions of the author. VAIDHA doesn't hold any liability arising out of this article.

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