Tenth Schedule of the Indian Constitution

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Tenth Schedule of the Indian Constitution

Question – What are the grounds for disqualification of members of the legislature under the Tenth Schedule of the Indian Constitution? Analyze the merits and demerits of having such provisions in a parliamentary democracy like India. – 6 December 2021

Answer

The 10th Tenth Schedule of the Indian Constitution, popularly called the ‘Anti-Defection Law’, was brought in by the 52nd Constitutional Amendment in the year 1985.

It defines the provisions of ‘what is defection’ and disqualification of members who commit defection. Its purpose is to disqualify the people’s representatives who defect to the greed of political gain and office, so that the stability of Parliament is maintained.

Why the need for the Tenth Schedule of the Indian Constitution?

  • Political parties are the most important part of the democratic process, and they make decisions on a collective basis.
  • But only after a few years of independence, the collective mandate given to the parties started being ignored.
  • Governments were formed and fell due to manipulation of MLAs and MPs. The concept of ‘Aaya Ram-Gaya Ram’ became popular in the 1960s-70s.
  • Soon, the need was felt to debar and disqualify the members from participating in the elections in violation of the mandate given to the parties.
  • Therefore, through the constitutional amendment in the year 1985, the Anti-Defection Act was brought.

This law provides the following grounds for disqualification:

A member of Parliament or State Legislature belonging to a political party is disqualified if:

  • He voluntarily renounces or gives up the membership of that political party.
  • or he violates the instructions of the party leadership at the time of voting or absents himself from voting without prior permission of 15 days.
  • An independent candidate joins a political party after an election.
  • A nominated member joins a political party after six months of becoming an MP.

Over time, various situations have been dealt with by the anti-defection law, which has highlighted both its merits and demerits.

Merits:

  • It seeks to ensure stability, and provide security, in the government by disqualifying the MLAs found guilty.
  • It enhances party discipline and ensures that the members, who have been elected with the support of the party and on the basis of the party’s manifesto, remain honest to the policies of the party.
  • Defection violates people’s trust, and anti-defection laws protect this belief.

Shortcoming:

  • The Act reduced the accountability of the government to the Parliament and the public by prohibiting members of the House from switching sides.
  • It limits the fundamental freedom of speech and expression of parliamentarians and places them below the level of an enlightened law-maker, merely in the numbers needed to pass a bill.
  • The decision of the Presiding Officer (PO) regarding defection being final has also been a problem in the past. However, in Kihoto Holohan v. Jechilu, the Supreme Court ruled that the decision of the PO is subject to judicial review.

Therefore, at present, there is a need to strengthen this law by establishing a mechanism for increasing the internal democratic system of the party, limiting the use of whip and delegating the defection-related matters to the President/Governor. Apart from this, there is also a need to encourage political parties not to include MLAs found guilty/disqualified in their party.

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