Tenth Schedule – UPSC GS2

• The Tenth Schedule was inserted in the Constitution in 1985 by the 52nd Amendment Act.
• It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature.
• The law applies to both Parliament and state assemblies.

• If a member of a House belonging to a political party:
  • Voluntarily gives up the membership of his political party, or
  • 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.
• If an independent candidate joins a political party after the election.
• If a nominated member joins a party six months after he becomes a member of the legislature.

• If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two-thirds of the members of the party have agreed to such merger.
• If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office.

• In the Kihoto Hollohan case (1993), the Supreme Court declared that while deciding a question under the 10th Schedule, the presiding officer should function as a tribunal.
• Hence, his/her decision (like that of any other tribunal) was subject to judicial review on the grounds of mala fides, perversity, etc.

• There is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification.
• The courts also can intervene only after the officer has made a decision, and so the only option for the petitioner is to wait until the decision is made.
• There have been several cases where the Courts have expressed concern about the unnecessary delay in deciding such petitions.
• The SC in a recent judgement held that unless there are “exceptional circumstances”, disqualification petitions under the Tenth Schedule should be decided by Speakers within three months.

Constitutional morality and 10th Schedule

• Tenth Schedule brings to the fore the need to emphasise “constitutional morality”.
• Constitutional morality means “strict adherence to the core principles of constitutional democracy”.
• So, Constitutional transgressions by MLAs coming through a “party platform” to serve the people for five years (Article 172), cannot be accepted.
• In so doing, these MLAs forget the oath, taken under Article 188 of the Constitution to bear true faith and allegiance to the Constitution of India as established by law.
• Legislators do not have absolute freedom to behave in any way they like.

Issues with the floor test

• When ruling party MLAs are lured with rewards, political or otherwise, then the “floor test” becomes constitutionally immoral and unjust.
• This will amount to circumventing the Tenth Schedule through engineered defections through the judicial process.
• It is high time the judiciary revisited the use of a “floor test” to prove a majority in a legislature.

What does “merger” mean a/c to Tenth Schedule?

• The Tenth Schedule of the Constitution prohibits defection to protect the stability of governments but does not prohibit mergers.
• Paragraph 4(2) of the Tenth Schedule, dealing with mergers, says that only when two-thirds of the members agree to “merge” the party would they be exempt from disqualification.
• The “merger” referred to in Paragraph 4(2) is seen as a legal fiction, where members are deemed to have merged for the purposes of being exempt from disqualification, rather than a merger in the true sense.

Role of Whip

• Every legislative party identifies the party’s whip at the beginning of the Assembly’s term and conveys this to the Speaker.
• A national leader’s direction cannot be considered a whip in the context of the anti-defection law.

• Recent political events in several States such as Manipur, Madhya Pradesh, Karnataka in which Members of Legislative Assemblies resign, followed by the collapse of the incumbent government. They surface again as Ministers in the new government formed by a rival political party.
• Arguments made by the Petitioner in SC:
  • The plea said that once a member of the House incurs disqualification under the tenth Schedule, he or she cannot be permitted to contest again during the term for which he was elected (considering Article 172 of the Constitution).
  • If a seat falls vacant due to disqualification then that particular disqualified member of the House has to incur disability under Article 191 (1)(e) of the Constitution and be debarred from being chosen again during the term for which he/she was elected.
• Related Constitutional Provisions:
  • Para 2 of the Xth Schedule:
    • It says defecting legislators “disqualified for being a member of the House.”
  • Article 172:
    • It makes a membership of a House coterminous with the term of 5 years of the House.
  • Article 191(1) (e):
    • A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.