Explained | Tenth Schedule of the Constitution

Observing that the sanctity of the Tenth Schedule of the Constitution should be maintained, the Supreme Court has directed Maharashtra Assembly Speaker Rahul Narwekar to decide the cross-petitions filed by the rival factions of the Shiv Sena seeking disqualification of each other’s MLAs by December 31.

The Tenth Schedule of the Constitution provides for the prevention of defection of the elected and nominated members from their political party and contains stringent provisions for curbing the menace of switching over of legislators.

A bench headed by Chief Justice D.Y. Chandrachud said procedural wranglings should not be permitted to delay a decision on the disqualification petitions.

The Supreme Court also asked the Assembly speaker to decide the Nationalist Congress Party (NCP) petition seeking disqualification of nine MLAs of the Ajit Pawar group by January 31, 2024. 

What is the case about?

• In June 2022, the Uddhav Thackeray-led Maha Vikas Aghadi (MVA) government in Maharashtra collapsed following a rebellion by Shiv Sena’s Eknath Shinde and most of the party MLAs.

• Eknath Shinde later tied up with the BJP to form a new government.

• The Supreme Court was hearing two petitions filed by the Uddhav Thackeray faction of the Shiv Sena and the Sharad Pawar bloc of the NCP, seeking a direction to the speaker to expeditiously decide disqualification proceedings against some MLAS.

• Earlier on September 18, the SC bench had directed the speaker to spell out the time table for adjudication of the disqualification petitions against Chief Minister Eknath Shinde and Shiv Sena MLAs owing allegiance to him who had tied up with the BJP to form a new government in June 2022.

• The SC had asked the solicitor general to apprise the bench of the time schedule to be fixed by the speaker for deciding the pleas for disqualification of 56 MLAs including lawmakers belonging to the Shinde faction.

• The delay in deciding the disqualification petitions against CM Eknath Shinde and Shiv Sena MLAs  had come under strict scrutiny by the apex court which came down hard on the Assembly speaker at the last hearing, saying the proceedings cannot be reduced to a charade and that he cannot defeat its orders.

What is defection?

Defection may be defined as the practice of floor crossing by a member of one political outfit to another.

Anti-defection Law

The Constitution (Fifty-second Amendment) Act, 1985 popularly known as the anti-defection law came into force on March 1, 1985. It amended articles 101, 102, 190 and 191 of the Constitution regarding vacation of seats and disqualification from membership of Parliament and the State Legislatures and added a new schedule — the Tenth Schedule — to the Constitution.

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.

‘House’ means either House of Parliament or the Legislative Assembly.

Disqualification: A member of a House belonging to any political party becomes disqualified for being a member of the House if:

a) He/she voluntarily gives up his membership of such political party; or

b) He/she votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

• An independent member of a House becomes disqualified to remain a member of the House if he joins any political party after such election.

• 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: Legislators may change their party without the risk of disqualification in certain circumstances.

• The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.

• If a person is elected as the Speaker of Lok Sabha or the Chairman of Rajya Sabha, then he could resign from his party and rejoin the party once he demits that post.

• It must be noted here that the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003.

Deciding authority: Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

Rule-making power: The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule.

Some limitations of the law

• No liability for political parties: It only punishes legislators for switching parties. Political parties who are at the heart of the politics have no liability under the law.

• Problem with merger provision: It safeguards the members of a political party where the original party merges with another party subject to the condition that at least two-thirds of the members have agreed to such merger.

• The exception is based on the number of members rather than the reason behind the defection.

• Power to the presiding officer: The presiding officer has been given wide and absolute powers to decide the case related to disqualification of the members on the grounds of defection.

• Unable to curb instability: With not enough room for elected representatives to harbour a difference of opinion, en-masse departures of rebelling legislators have become the ‘political’ normal. Along with uprooting incumbent governments, such departures can also bring governance to a grinding halt.

• Expulsion does not attract disqualification: The law focuses on voluntary defection and remains silent about expulsion of a member from the party. Once expelled, such a member would then be an independent in the House, with an option of joining another party, which presents a possible loophole for exploitation of the Schedule.

What can be done to overcome these issues?

• Narrowing the definition of defection: Defining actions or conduct which constitutes defection that does not inhibit independent thinking and expression by legislators.

• Intra-party democracy: This will indirectly create more acceptance for divergence of opinion and stance within the party.

• Involvement of ethics committee: Active involvement of Ethics Committee, as done in Cash for Query scam, can help in curbing horse trading of legislators.

• Deciding authority: Second Administrative Reforms Commission (ARC) has recommended that the issue of disqualification of members on grounds of defection should be decided by the President/Governor on advice of EC.