RSTV_-The-Big-Picture_10th-Schedule
Video Summary

[RSTV The Big Picture] 10th Schedule

Vice President of India recently said the time has come to revisit the Tenth Schedule of the Constitution. He further said that credibility, capability and capacity should be the yardstick for anyone to enter the legislature and not caste, cash and criminality.
By IT's Video Summary Team
August 23, 2019

Contents

  • Introduction
  • IT’s Input
    1. What is Tenth Schedule of the constitution of India?
    2. Who decides the question of disqualification?
  • History of 10th Schedule
  • Cases related to Tenth Schedule
  • Defying the Myth
  • Suggestions
  • Conclusion

[RSTV The Big Picture] 10th Schedule

For IASToppers Video Summary Archive, Click Here

 


Introduction

  • Vice President recently said that the time has come to revisit the Tenth Schedule of the Constitution.
  • Tenth Schedule of the Constitution is better known as the anti-defection law.
  • Allegations of legislators defecting in violation of the law have been made in several states including Karnataka, Andhra Pradesh, Arunachal Pradesh, Goa, Manipur, Nagaland, Telangana and Uttarakhand in recent years.

IT’s Input

What is Tenth Schedule of the constitution of India?

  • Tenth Schedule of the Indian Constitution (Article 102 and 191) deals with the provisions relating to disqualification of the members of Parliament and State Legislatures on the ground of defection (a person who gives up loyalty to one party in exchange for loyalty to another, in a way which is considered illegitimate by the first party).
  • This schedule was added by the 52ndAmendment Act of 1985, also known as Anti-defection Law.
  • It lays down that a person shall be disqualified from being a Member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule.

As per the provisions of the Tenth Schedule, a member may be disqualified if he/she,

  • Voluntarily gives up the membership of his political party which gave him ticket to contest and win
  • Votes or abstains from voting in the House contrary to any direction issued by the political party to which he belongs, unless such voting or abstention has been approved by the political party within fifteen days.
  • A member elected as an independent candidate shall be disqualified if he joins any political party after his election.
  • However, a nominated member is allowed to join a political party provided he joins such political party of his choices within a period of six months. After that period, joining a political party would lead to defection and disqualification.

Who decides the question of disqualification?

  • The question of disqualification under Anti-defection is decided by the Chairman in the case of Rajya Sabha {i.e. Vice-President} and Speaker in the case of Lok Sabha and his decision is final and cannot be challenged in court via under article 122 and 212 (under which courts cannot inquire the validity of the proceedings of the legislatures).
  • The question whether a member is subject to disqualification in all other matters except under 10th schedule (disqualification) is decided by President. However, President should obtain the opinion of the election commission before taking such decision.

History of 10th Schedule

  • The anti-defecation law was conceived during a period infamous for ‘Aaya Ram Gaya Ram’. It was a phrase that became popular in Indian politics after a Haryana MLA Gaya Lal changed his political party thrice within the same day in 1967.  
  • The Tenth Schedule was included in the Constitution in 1985 by the Rajiv Gandhi ministry.
  • During that time, there was lots of instability in political system due to dissentions at central as well as state level.
  • The first anti-defection law stated that any individual cannot change party on the ticket he/she is chosen. It needs minimum of 1/3rd members of a party to join another party. Hence, as per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
  • However, the Dinesh Goswami Committee on Electoral Reforms, the Law Commission in its report on “Reform of Electoral Laws” and the National Commission to Review the Working of the Constitution (NCRWC), all recommended the deletion of the Tenth Schedule provision regarding exemption from disqualification in case of a split.
  • Moreover, there were questions that through these provisions, MPs can go on merging to other parties continuously.
  • As a result, 91st Constitutional Amendment Act, 2003 made at least two-thirds of the members of a party compulsory to be in favour of a “merger” for merger to have legal validity and to save their seats in parliament. It omitted the disqualification in case of splitting of political parties.
  • Meanwhile, a provision was brought in the constitution that says the composition of government could not be more than 15% of the strength of the legislature. It was added to provide disincentive to anyone from non-ruling party to join the ruling party in the hope of getting ministerial berth.

Cases related to Tenth Schedule

  • The tenth schedule prevents court to question MPs and bars them from proceedings.
  • However, court can still initiate proceeding against MPs under article 226 (empowers the high courts to any person to give directions, orders or writs) and 227 (every High Court has superintendence over all courts/tribunals throughout the territories to which it exercises jurisdiction).

Chandra Kumar (1997) case

  • The Article 323-A of the Constitution of India provided for the establishment of the Central Administrative Tribunal and State Administrative Tribunal relating to recruitment and conditions of service of persons appointed to public services.
  • Article 323-B contemplates establishment of tribunals for certain other matters such as taxation, foreign exchange, land reforms etc.
  • In other words, these articles enables the Parliament to take out the adjudication of disputes relating to service matters from the civil courts and the High Courts and place it before the administrative tribunals.
  • In L. Chandra Kumar case, the impact of Articles 323-A and 323-B on the power of judicial review and superintendence of the High Courts and of the Supreme Court was in question.
  • The Clauses of Article 323-A and Article 323-B that exclude the jurisdiction of the High Court and the Supreme Court were held unconstitutional by the Supreme Court.
  • The Supreme Court said that it would be going against the basic structure of constitution if there is any provision of any law that takes away the power of the court in its writ jurisdiction.

Kihoto Hollohan (1992) case

  • The principal question before the Supreme Court in the case was whether the powerful role given to the Speaker (power of Speaker to disqualify any MP in case of any question arises as to whether a member of a House has become subject to disqualification) violated the doctrine of Basic Structure.
  • The petitioners argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias.
  • The court said that one cannot weigh the outcome of the speaker’s decision and can only raise question to court in case the due process of declaration of disqualification is not properly followed.

Defying the Myth

  • There is a fiction created that if 2/3 legislators of a legislature join another political party, then the original party is diluted and merge into a new party.
  • Now, this is an anomaly because that party continues to have legislators in other legislatures and in other house of parliament.
  • So, the merger of political party, like any association of individuals whether it is registered Society or a company, are taken by the general body and not any legal body.

Suggestions

Right to recall

  • There should be a provision of ‘right to recall’ for the electorate in case if a certain elected representative does not do what he/she has promised or betrayed the mandate promised by him/her.

Cap on party changing

  • There should be a cap on a person on how many time he/she can change party.

Role of Election commission 

  • The speakers are political person and are obliged to the party in power as the party in power, in a way, elects the speaker. Hence, there is need to bring in Election commission in picture which has powers of other disqualification.

Proper guidelines

  • The Supreme Court has only power to oversee the due process of disqualification done by speaker. However, in Arunachal Pradesh and then in Uttarakhand, the Supreme Court mandated certain process and procedures related to defection. Hence, there should be proper guidelines.

Abstain from voting

  • Under 10th schedule, if a person abstain from voting or vote against the official mandate that has been given by the whip of the party, then he/she qualifies for disqualification.

However, in case the party is taking a position that is different from the position that it had actually promised to the electorate as part of its manifesto and if any representative, who is actually in sync with what was promised in the party, is going against what the party had said, then if he chooses to abstain or if he chooses to vote against the party, he would be seen as defecting.

Need for introspection

  • There is often cases in which a minority government became majority government. For instance, in July 1993, 10 MPs belonging to other parties cast their votes in favour of P.V. Narasimha Rao to defeat a no-confidence motion moved in the Lok Sabha against Rao’s minority government.
  • However, the court ruled that MPs who took money and voted in favour of the Rao government are immune to prosecution under Article 105(2) of the Constitution that deals with parliamentary privileges.
  • Hence, there is need for introspection as to how are these laws functioning and whether they reflect the people’s mandate and people choices.

Balance between party choice and individual choice

  • In the context of fear of defection in making individual opinion, Constitution gives more importance to the rights of the people and the rights of their representative. However, today, the situation has become such that the political party determines everything. Hence, there has to be a balance between party choice and individual choice.

Framing rules

  • There is need for framing of rules, as written in 10th schedule, by the speaker and the Chairman so that arbitrariness will be not there in the individual cases.

Expedite the cases

  • Whenever there is a delayed in the cases related to the defection of a person, there is an uncertainty for the accused person as to the membership of the parliament. The person who has challenged might feel that he has lost election in manner which was not fair to him. Hence, there is need to speed up the jurisdiction process.
  • There could be the special courts to speed up the cases related to defecation. However, Supreme Court has said that the parliament members cannot be set above normal people by providing special courts just for them.

Areas that require attention are

  • How to accommodate for dissent under defection
  • How to ensure that the integrity of the proceedings inspired confidence in the electorate
  • How to speedily address these issues and
  • What are the speedy alternative to delayed speaker’s decisions

Conclusion

  • Time has come where there is at least some kind of a time frame that is incorporated as part of the 10 schedule with respect to the decision that is to be taken by speaker.
  • It is it important now to actually revisit what level of autonomy should the speaker be given and is it possible to actually involve former members of the judiciary so that there is some kind of dissipation of powers when it comes to the power exercised by speaker only.

 

Topics
Current Affairs Video Summary
Tags

Facebook

My Favourite Articles

  • Your favorites will be here.

Calendar Archive

September 2019
M T W T F S S
« Aug    
 1
2345678
9101112131415
16171819202122
23242526272829
30