The Tenth Schedule of the Constitution of India provides provisions as to disqualification on the grounds of defection. The object of the Tenth Schedule is to curb the evil of political defection motivated by the lure of office or other similar consideration which endanger the foundation of democracy. The followings are the major features of the Tenth Schedule:
A member of the house is disqualified from the membership of the house if he voluntarily gives up his membership of such political party; or If he votes or abstains from voting in such house adverse to any direction issued by the political party to which he belongs.
Provided that a member shall not be disqualified where his original political party merges with another political party with the support of minimum two-thirds of members of merging party.
Provided that the Speaker or the Deputy Speaker or the Chairman or the Deputy Chairman shall not be liable to be disqualified on the grounds of leaving the membership of any political party.
The speaker or the Chairman will adjudicate the matter of disqualification.
These features contain several defects and deficiencies. The following are the major defects and deficiencies in the Law:
Merger of a Party with Other with the Assent of One-Third Members
As per the provisions of paragraph 4 of the Schedule, if a party is merging with another party with the support of two-thirds member, the members will not be liable for disqualification even though they merge for the allurement of office or similar other consideration. The schedule does not prohibit such unethical practice just because the number of members involved. Therefore, the reason behind such an exception is not rational. The law would have better served if the exception would have been based on the reason behind such merger and not on the number of members involved. It means that if the reason is illegal, the members should be subjected to be disqualified under the laws of defection irrespective of being one-third of the parties.
A Curb to Freedom of Speech and Expression inside the Houses
Subject to other provisions of the Constitution, Articles 105 and 194 of the Constitution provide Freedom of Speech and Expression to the members of Parliament and State Legislature respectively. As per the provisions, the members are not liable before any court for their statements made or vote in the Parliament or the State Legislature. This Freedom is more powerful than what is available to the common citizens of the country under Article 19 (1) (a) of the Constitution. The reason behind giving such powers or privileges to the members of the Parliament and State Legislature was to ensure the democratic functioning of the government without any fear. But, provisions of anti-defection law strictly discourage this freedom given to the members inside the Parliament or State Legislatures. Here, the opinion of Nani Palkhiwala deserves a mention where he expressed his fear that anti-defection law would result in members becoming mere puppets in the hands of the parties.
Dissent and Defection: Under the shadow of the anti-defection law the dissent of members of Houses is being dictated by the party whip which is a sole matter of party discretion. However, it is worth noting here that all the dissents are not defection. The law should take into consideration the reason behind such dissent. If a party asks a member to vote in a particular manner which is against the interest of his constituency, the member should be given the freedom to dissent and to vote against it. One of such incidents happened when Women Reservation Bill 2010 was tabled before the Rajya Sabha. It was reported that several members who were opposing the Bill voted in favour just because they were bound by their respected parties whip.
In Kihoto Hollohan v. Zachillhu And Others, the Supreme Court of India opined that:
“Often the views expressed by the members in the House have resulted in substantial modification and even the withdrawal of the proposal under consideration. Debate and expression of different opinions serve an essential and healthy purpose in the functioning of Parliamentary Democracy. Sometimes such an expression of views during the debate in the House may lead to voting or abstinence from voting in the House otherwise than on party lines.”
The observation of the Supreme Court signifies the importance of dissent or different opinion of the members on a particular matter. Furthermore, the possibility of discovering any lacuna in a Bill during a debate can never be ruled out. Therefore, the dissent of the members should always be appreciated in the Houses for the better functioning of legislatures.
Ignorance of Debate or Discussion: Parliament is one of the three pillars of Indian democracy which not only keeps checks on the Executive but also provides discussion on the matter of public interest and introduced bills. All the bills are supposed to go through a fair debate before voting for the same. Debate is one of the intrinsic features of the Parliament functions.It is worth noting that 83% of Budget was passed without discussion in the current (16th) Lok Sabha. Whereas in the budget session 2018-19, 100% of demands were passed without discussion. Earlier, it happened in 2004-05 and 2013-14 during the 14th and 15th Lok Sabha respectively. This data clearly shows that discussion or debate is being discouraged in the Parliament. One of the reasons can be the fear of anti-defection law which restricts the member to question the decision of the party in the Parliament.
Effects on the Quasi-Judicial Power of the Parliament
Apart from legislative powers, the Parliament also has some Judicial powers like power to impeach the President under Article 61 and to remove the Supreme Court judges under Article 124 of the Constitution. For the exercise of this power, the members of the Parliament are required to vote for or against the motion as per their own conscience. But if the party issues a whip, all the party members are bound to follow the whip irrespective of their own conscience to avoid the defection. Therefore, the anti-defection law defeats the whole purpose of giving quasi-judicial power to the Parliament by the Constitution.
Glaring Contradiction between Elected and Nominated Members
As per the provisions of Tenth- Schedule, an elected member is liable to be defected if he joins another party after such election but a nominated member by a particular party is not liable to be defected if he joins another party within six months of such nomination. This discrimination is illogical as an elected member who is accountable to his constituency is discouraged to join another party even for the interest of his constituency whereas a nominated member who is nominated by a particular party and not accountable to anyone except his party, can join another party within six months of such nomination. Therefore, this provision contradicts the very objectives of anti-defection law and does not serve any purpose.
Accountability of Executive to Legislature
As per the provisions of Articles 75 (3) and 113 of the Constitution, the council of ministers is collectively responsible to the Parliament. It means ministers play a dual role of executive and legislative. But, in case the ruling party issues a whip on a certain matter, all the ministers are duty bound to follow the same irrespective of their dissent in the Parliament. Consequently, the ministers are forced to play only one role which is the role of executive only because of the party whip. Therefore, it defeats the objective of the said provisions of the Constitution.
Speaker’s Decisive Power:
In India, speaker is a political person though he leaves the party when elected as the speaker. However, the possibility of favouritism cannot be ruled out. There is a lack of uniformity in the decisions of the speakers of different states legislative assemblies in a similar situation. One of such circumstances occurred in the case of G. Vishwanathan v. Speaker TN Legislative Assembly where it was seen that an MLA who was expelled from the party was declared to be “unattached” member and therefore allowed to cast his vote. But such a provision is nowhere mentioned in the Tenth Schedule. Whereas, in Sharad Yadav and Anwar Ali defection case, the decision of the Chairman of the Rajya Sabha was alleged to be politicised as Principle of Natural Justice was allegedly not followed by the Chairman of the Rajya Sabha. This shows that the Anti-Defection law failed to bring uniformity in the decisions of different speakers in a similar situation due to the possibility of favouritism.
Pre-Poll Alliance: A New Challenge
The anti-defection law does not have any provision for pre-poll alliance which came out to be a big loophole in the law. The logic behind bringing anti-defection law was that a candidate is elected by the people on the basis of the ideology of the party, therefore, the party should have control over the candidate. Similarly, in the pre-poll alliance also, people consider the coalition before voting. For example, a JD(U) candidate is voted by the supporters of RJD and Congress Parties in a particular constituency not because he is a member of JD(U) but because he is a member of the Alliance. However, if the Alliance is broken after the poll and that candidate along with his party JD(U) joins opposition party (BJP), he along with his party should be held liable under anti-defection law because he was voted because of pre-poll Alliance and not post-poll Alliance.
A critical analysis of the Tenth Schedule reveals that the anti-defection law of India has several defects and deficiencies which have become barriers in achieving the very fundamental objectives of the law. Therefore, the provisions Tenth Schedule needs to be amended to achieve its objective of existence. The followings are some proposed amendments for the same:
Mere having the consent of the two-thirds member of the party to avoid defection is illogical. The provision of merger should attract defection if it is done on unreasonable grounds as the objective of the anti-defection law was to promote the parliamentary discipline and decorum and discourage the unethical practices used by the politicians for their personal gains. It is worth noting that an unethical act does not become an ethical act if it is done by several or a majority of people.
As already discussed every dissent is not defection. However, party whips have emerged as the enemy of dissent. Therefore, as per the recommendation of the Law Commission of India in its 170th Report, the issuance of whips should be restricted to only such situation where the government is in real danger. The private member Bill to amend the anti-defection law can also be taken into consideration as it provides freedom to dissent to members except in case of No Confidence Motion, Financial Bill and Matters. These provisions will help to achieve true representative democracy.
The distinction drawn between elected and nominated members with reference to defection is unreasonable because the elected members who are accountable towards their constituency are prohibited to join other party but the nominated member who is appointed by a party is permitted to do the same within six months. Therefore, this distinction should be removed from the Tenth Schedule.
There should be some code of conduct which can prohibit speakers or chairmen of the Houses to politicise the defection and can ensure the uniformity in their decisions in a similar situation. Measures should be taken to stop speakers or chairmen to invent terms like “unattached” or “associated” for their own political gains.
After witnessing many cases where the decision of presiding officer was politically motivated, it would be better if the decision-making power in case of defection is vested in an independent body or the Election Commission. This will reduce the political biases in decisions on defection.
 Schedule 10, para. 2 (1) (a), The Constitution of India.
 Ibid, para. 2 (1) (b).
 Ibid, para. 4.
 Ibid, para. 5.
 Ibid, para. 6.
 Supra 4.
 Art. 105, 194, The Constitution of India.
 Art. 19 (1) (a), The Constitution of India.
 Agree to Disagree, The Telegraph, (21/04/2010), available at https://www.telegraphindia.com/opinion/agree-to-disagree/cid/533026, last seen on 02/04/2019.
 Kihoto Hollohan v. Zachillhu And Others, (1992) 1 SCR 686.
 S.H. Belavadi, Theory and Practice of Parliamentary Procedure in India 174 (1988).
 PRS Legislative Research, Vital Stats Functioning of 16th Lok Sabha (2014-2019), available at https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/PRS%2016th%20LS%20Vital%20Stats.pdf, last seen on 02/04/2019.
 Art. 61, The Constitution of India.
 Art. 124 (4), The Constitution of India.
 Schedule 10, para. 2 (2) (3).
 Art. 75 (3), 113, The Constitution of India.
 G. Vishwanathan v. Speaker TN Legislative Assembly, (1996) 2 SCC 353.
 Explained: Disqualification Of Sharad Yadav As Rajya Sabha Member, LiveLaw, (Dec. 09, 2017, 1:33 PM) available at https://www.livelaw.in/explained-disqualification-sharad-yadav-rajya-sabha-member-read-notification/, last seen on 10/04/2019.
 170th Law Commission of India Report, Reform of the Electoral Laws, Part-II, Chapter-IV, ¶ 3.4.2., available at http://lawcommissionofindia.nic.in/reports/report255.pdf, last seen on 10/04/2019.
 Supra 9.
ABOUT THE AUTHOR
Rahul Kumar is a second year undergraduate law student at School of Law, Bennett University.
In Content Picture: Livemint