It is expedient now to take a serious note of the flaws in the Tenth Schedule to our Constitution or the anti-defection law. There are umpteen examples of how the provisions in the schedule are flouted for the lure of power but without any noticeable consequences almost equal to being escaping with impunity.
The effort to fix the Tenth Schedule first commenced with the Constitution (91st Amendment) Act, 2003 when Paragraph 3 was omitted, which came into effect on January 1, 2004. Prior to the amendment, Paragraph 3 prescribed for protection of defectors when one-third of the members of a political party formed a separate group. And this was an easy target to be achieved in case of small Assemblies, which perennially kept the Government’s stability in doubt. Not only this, defections taking place over a period of time till reaching the mark of one-third of the total members of a political party were allowed to claim protection under Paragraph 3 in connivance with the Speakers of the Assemblies who were seen to be inclining towards the party in power to protect the defectors under the one-third rule.
However, this was not the end as Paragraph 4 provided for the protection of defecting members when two-thirds of the members of the legislative party merged with another political party.
Paragraph 4(1) provides that a “member of the house will not be disqualified from his membership where his original political party merges with another political party and thereupon, he lays claim that he and other members have become members of the other political party or a new political party is being formed by such merger.” However, Paragraph 4(2) stipulates that such a merger would be deemed to have taken place only if not less than two-thirds of the members of the legislative party agreed to such a process. This is the root of corruption as it is seen that often two-thirds of the members of the legislative party are bought over by various unfair means or lucrative promises either to bring down Governments or to strengthen the party in power. This makes the entire provision unconstitutional; and more than strengthening the anti-defection law, it tends to defeat the very idea of it.
There are even situations where proceedings under Paragraph 4 are deliberately prolonged by the Speaker so that the term of the Assembly comes to an end before the proceedings under the Tenth Schedule even against the ex-facie defectors have been concluded.
Besides, Article 164(1B) which stipulates that a member of the legislative assembly who is disqualified from being a member of the House under Paragraph 2 of the Tenth Schedule shall also be disqualified to be a Minister from the date of his disqualification till the date on which the term of his office as such a member would expire or where he contests the election to the Assembly before the expiry of the term of the legislature. This works as an inducement to topple governments as a fresh election would give chance to the disqualified member to be re-elected and become a member of the Assembly and also to avail the opportunity to be appointed as a Minister.
It appears that the real problem behind a failing Tenth Schedule is with the politically-biased and prejudiced Speakers. Thus, firstly, a person when elected as Speaker must resign from the party to which they belong; and the end of their term should be followed by a cooling-off period before they can become members of any political party. Secondly, it is imperative to omit Paragraph 4 of the Tenth Schedule and Article 164(1B). Thirdly, those who are disqualified under Paragraph 2 of the Tenth Schedule should be barred from contesting elections and holding public offices for next five years from the date of their disqualification. Fourthly, all petitions for disqualification of members under Paragraph 2 should be heard and decided within a reasonable period of time like three months, which is to be counted from the date of filing of such petitions. And an appeal to a decision of the Speaker under the Tenth Schedule should only be made to the Supreme Court in order to check colossal wasting of time in litigation.
It is important that we take necessary steps to cleanse our polity of the ailment of ‘politics of power’ and promote ‘politics of service and development’ and for which cleansing the Tenth Schedule to the Constitution or strengthening and augmenting the anti-defection law is important.
(The writer is an Additional Central Government Standing Counsel, Central Administrative Tribunal, Cuttack Bench and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. Views are personal)
