Scrap Tenth Schedule, Replace It With Simple Provision Disqualifying Legislators Changing Party Midterm: Kapil Sibal
Sibal said that the 10th schedule, which provides exception of merger, is being misused.
Commenting that the present 10th Schedule of the Constitution is not adequate to address the malady of political defections, Senior Advocate Kapil Sibal called for its complete overhaul. He suggested that the 10th Schedule - which provides exceptions for mergers and allows the Speaker to be the deciding authority - be replaced with a simple provision which says that any legislator who switches party mid-term will face disqualification for ten years. Resignation or merger should not be an exception to disqualification as is presenly provided, he commented.
"I think we need a complete overhaul. We should scrap the 10th Schedule, and we should amend the Constitution with only one provision. Anybody who changes his party mid-term will not hold public office or any position or constitutional authority for the next 10 years. Nobody will then indulge in defection."
Sibal was answering a question asked by a member in the audience during his talk on 'Horse-Trade and Democracy' organised by the All India Lawyers Union in Kochi.
The member had asked Sibal: "Having found that the provisions in the 10th schedule to cure the menace of defection are very unsatisfactory and not achieving the object for which it was brought to the Constitution, what is your opinion? Whether it can be cured by amendment or by way of interpretation."
Responding to this, Sibal said that interpretation may not solve the problem because the Supreme Court has not yet decided the issue pending before it for years. He said he doesn't know how long the Supreme Court will take to decide because they have "chosen not to list it". He added that the disqualification shouldn't just extend to defection but also to mass resignations since there is a provision in the Constitution that if you resign, you can contest the next election. "This should apply to resignation and defection," he said, so that defected MPs will not resign and re-contest.
Sibal cited the provision for split as an example of how anti-defection provisions had been misused, referring to the case of BSP leader Mayawati. He noted that the split provision was eventually deleted from the Tenth Schedule, but argued that the merger provision continues to be misused.
"If you look at the history of split, this all happened when the Mayawati Party, BSP, they had I think, 105-odd members and 1/3rd principle applied. I remember 13 of them first crossed [to the other political party] so they didn't reach the figure of 39. Then another lot crossed, defection petitions were filed and the speaker didn't decide. Then another lot crossed and reached the figure of 39 and then speaker said the split is fine. The matter went to Supreme Court and decided that this is wrong. Therefore, in 2003, Vajpayee deleted the provision. Split was misused the same way merger is being misused."
Sibal said that the exception of merger is being misused now, citing the recent examples from AAP, ShivSena (UBT) and the Trinamool Congress. He noted that Punjab, which did not have any BJP MPs, suddenly got 7 BJP MPs after AAP Rajya Sahba MPs merged with the BJP. "Punjab did not vote for them," he said. He added that a North Eastern party, which did not have any representation in Parliament, got 18 MPs after certain Trinamool members merged with it.
In this context, he mentioned that he himself has filed a writ petition in the Supreme Court seeking a declaration that merger must be of the political party and not just the legislative wing.
He however said if the Supreme Court ultimately decides on his petition, there won't be this kind of mergers but political parties in India are innovative. "If the Supreme Court decides the matter, there won't be this kind of defection but they will find other ways. Political parties in this country are very innovative, they create a lot of IPR in that process so that intellectual property can't be touched. What we need is this provision of the Constitution - no resignation, no changing of sides."
When the member again asked Sibal: "Given the political dispensation, we are not powerful to have such kind of amendment in the near future...and interestingly the Supreme Court is taking time, do you there is any alternative?"
Sibal laughingly said: "Raise it with Coackroach Janata Party."
The video of the event can be watched here.