Great Indian Defection Circus: How Tenth Schedule Became A Shield For 'Wholesale' Betrayals
The Tenth Schedule came into being while a part of the 52nd Amendment of the Constitution in 1985, and was touted as a noose around the neck of the infamous 'Aaya Ram, Gaya Ram' culture. The Anti-Defection Law has turned into a paradox of democracy almost close to four decades later. It eliminates dissent, individual dissent, principled dissent, and it legally cleanses mass, syndicated political betrayals.
One of the Supreme Court's most consistent trends in jurisprudence has been that each time it attempts to close a loophole, lawmakers come up with a new way to get around the Constitution. Horse-trading is not banned by the law it is merely required to follow the minimum number of horses (numerical quota). The recent political incident in West Bengal and the amazing performance of the high-profile parliamentarians in the capital at crossing the high wire in the 10th Schedule, are textbook examples on how the Tenth Schedule is used to destroy the very electoral mandate that it was meant to safeguard.
The “Delhi Darbar” Imbroglio: The Absurdity of Paragraph 4
The number one problem with the Tenth Schedule is the “merger of a legislative party” exception in paragraph 4. The law rests on a logically incomprehensible basis: It is a constitutional offense for just one legislator to cross party lines, but if two-thirds of the legislative party switches allegiances then it's a perfectly a permissible “merger of the legislative party” within the realm of the Anti – defection law.
The recent political earthquake in Delhi involving Aam Aadmi Party (AAP) Rajya Sabha MPs Raghav Chadha, and their colleagues, is the best example that highlights the hypocrisy of this loophole. Defecting groups have, by coordinating the crossing over of the necessary 2/3 majority of the legislative party, exactly met the “Paragraph 4” criterion, and thus enjoy absolute immunity from disqualification. The callous floor crossing by the elected representative is not only defeated by the moral turpitude but it also defeats the very edifice of the democratic verdict.
The irony is so great! In 2022, Chadha himself had introduced a Private Member Bill to increase the merger threshold to three-fourths so as to remove this “blot on our democracy.” However, the current legislation allows the two-thirds loophole to be used legally to arrange a smooth departure. This confirms a dark truth: Paragraph 4 does not safeguard the realignment of ideas, it does give the statute of a license to hostile takeovers.
The Kihoto Shield and the “Adjudicatory Void” in the state of West Bengal.
The Delhi incident reveals the shortcomings in the legislation of the law; the current glitch in West Bengal raises the question of the overall failure of the adjudicatory mechanism of the law, which was based on the Supreme Court judgments.
In a landmark judgment of Kihoto Hollohan v. Zachillhu (1992)[1], the Supreme Court did a bizarre compromise. It did uphold the law by making the Speaker of the House a “Tribunal”, to decide on disqualification petitions but The Court did prohibit pre-decisional judicial interference, which exacerbated the whole operation of the law and as to how law evolved during the course of time. If we see the very nature of the speaker it is elected by the majority (Ruling party) and henceforth in every disqualification petition where the merger of the legislative party had happened with ruling party the speaker decides “not to decide on disqualification petition” until the next assembly elections and makes the whole cause of action as a fait accompli. This brazenness of speaker to give an imprimatur to this kind of anti-democratic principles makes the whole anti - defection law falling prey of “Adjudicatory Paralysis”.
The Government's Way Out: Political establishments soon must have realized that the Kihoto judgment that prohibited judicial review was a golden shield for the government. Partisan Speakers just started to sit on disqualification petitions ad infinitum. Since the 2021 Assembly elections, there have been a number of MLAs who crossed over in West Bengal. Rather than be immediately disqualified, the defectors took advantage of this “Adjudicatory Paralysis.” They were accorded the courtesy of keeping their seats in Parliament and even winning prominent seats in legislation like chair of the Public Accounts Committee (PAC), as a result of the courts not being able to intervene until they reached a final decision. The Speaker's constitutional role was turned into a weapon to stifle the verdict of the people of the democracy.
The Keisham Fix and the Nabam Rebia Master-Key are the two most popular types of key locks.
In Keisham Meghachandra Singh v Hon'ble Speaker (2020)[2], the Supreme Court made an attempt to make an exception to the above, stating that it was aware of the widespread misuse of the Kihoto delay tactic. The Court set a three-month time limit when Speakers are to make decisions on disqualification petitions.
To circumvent this three-month deadline, political strategists discovered the final constitutional loophole given by another Supreme Court decision, that of the Nabam Rebia case (2016).[3] The Court in Nabam Rebia held that when a Speaker receives a notice to remove him or her under Article 179(c), he/she is constitutionally ineligible to hear disqualification petitions.
The moment a mass defection is called for, the rebel MLAs, today, will immediately issue a 14-day notice for the Speaker's removal. This has a dramatic effect on the Speaker's adjudicatory power, instantly. The three months time period provided in Keisham Meghachandra becomes altogether redundant because it will give the defectors the exact time frame required to vote against the incumbent government in a trust vote, remove the regime without getting sued.
Shrimanth Patil Paradox and “Resignation Diplomacy”.
If they don't have the required two-thirds votes for a merger, defectors turn to the most obvious way to circumvent the Tenth Schedule: They ignore it.
The Supreme Court in Shrimanth Balasaheb Patil v. Hon'ble Speaker (2020)[4] upheld the disqualification of the rebel MLAs while striking down the order of the Speaker to bar them from contesting by-elections till the end of the term in the ongoing political turmoil in Karnataka. However, the Court stated that, as it stands now, a disqualified member is allowed to run for office immediately upon disqualification.
The Government's Way Out: This decision established “Resignation Diplomacy”. In other words, rebel legislators don't bother disobeying the whip any more. They do not, however, lose their seats, but rather do so under Article 190. This artificially reduces the majority of the House to such a degree that the current government falls. The defectors are then immediately fielded as candidates by the new ruling party in the by-elections that take place. With large campaign war chests, they are re-elected, and sworn-in as Cabinet Ministers. The deterrent effect of the Tenth Schedule is lost; defection is simply interpreted as a passing “transaction cost.”
Jurisprudential Imperative: The “One-Liner” Reset
In the present day, it's too late to patch up a sinking ship. The incremental judicial interpretations will be out-maneuvered in the Indian political class. The only way to save parliamentary democracy is to have a “Constitutional Reset” in India.
First, paragraph 4 should be totally deleted. There needs to be an end to the difference between retail and wholesale defection. It should be automatically triggered by a legislator's break with the party he or she ran on so as to strip the partisan Speaker of any adjudicatory role.
Second, the law must bring in an Absolute Bar. This punishment is in the form of action. Article 164(1B) should be changed so that if a member becomes disqualified due to mere defection under the Anti-Defection Law, he/she is completely disqualified from holding any form of remunerative political office, be it a Ministerial position or Chairmanship of a Board for the rest of the five-year legislative period.
The whip needs to be tempered so it does not become a party dictatorship and protect the right of the legislator to freedom of speech, hence only apply to “Survival Votes” (No-Confidence Motions and Money Bills).
Great Indian Jugaad is the result of flawed laws. As long as the economic and political “Return on Investment” of betrayal is not constitutionally wiped out, the Tenth Schedule will remain the most impenetrable shield against defection and not a sword.
Kihoto Hollohan v. Zachillhu: 1991 INSC 287. ↑
Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly: 2020 INSC 65. ↑
Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly: 2016 INSC 256. ↑
Shrimanth Balasaheb Patil v. Hon'ble Speaker, Karnataka Legislative Assembly: 2019 INSC 1237 ↑
Author is serving as a Law Clerk at Supreme Court of India. Views are personal.