Various ambiguities surrounding the Tenth Schedule of the Indian Constitution have presented new challenges as speakers have been given wide powers and leeway to interpret the anti-defection law. The existence of these loopholes has made routine misuse and circumvention of the law possible, which threatens the democratic ideals.
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THE recent political crisis in Maharashtra has generated significant media attention and a cacophony of voices.
In an unprecedented development, Ajit Pawar, who previously held the position of leader of the opposition, took oath as the deputy chief minister. Along with his induction in the ministry, there was also a cabinet expansion as a few other members of legislative assembly (MLAs) from the Nationalist Congress Party (NCP) were sworn in as ministers.
Amidst this chaos, many experts have raised concerns about the effectiveness of the Tenth Schedule of the Indian Constitution.
In the past, prominent lawyer Kapil Sibal has advocated for the scrapping of the schedule. Given the subversion of the schedule, this article delves into the domains in which the schedule remains silent or lacks clarity.
Over the years, the provision on splits and mergers has garnered substantial attention in the media. While this aspect is critical, it is important to note that several other loopholes in the law have been overlooked.
Firstly, it is unclear whether a petition under the schedule can be withdrawn. This question arose in the Lehinson Sangma case (1988).
The speaker of the Meghalaya assembly, P.G. Marbaniang, ruled that there is no explicit provision allowing the withdrawal of a complaint under the schedule.
“The existing law on defection only addresses 'splits and mergers' within political parties, leaving 'splits without merger' unanswered.
Consequently, the speaker ruled that "At best, it can be taken as a constructive condonation as envisaged under paragraph 2(1)(b) of the schedule". This ruling highlighted the ambiguity surrounding the withdrawal of petitions within the framework of the law.
Secondly, the issue of clarity extends to the framing of rules under paragraph 8 of the schedule where it is absent. In the Bharatiya Janata Party (Punjab) case (1993), the Supreme Court ruled that the presiding officer must act based on principles of natural justice.
However, this subjectivity leaves unreasonable room for the interpretation of the circumstances.
A recent example of this subjectivity under the schedule can be seen in Maharashtra, where two political parties, Shiv Sena and NCP have experienced splits within just one year, yet they have not merged with any other party.
This means that the existing law primarily addresses 'splits and mergers' within political parties without covering situations involving 'splits without merger'.
Thirdly, the question of whether a speaker possesses the suo motu power to decide on disqualification remains unclear.
In the Lotha and Others case (1990), the speaker of the Nagaland Assembly, Thenucho, declared two unattached members of the Nagaland Peoples' Council as disqualified and expelled ten more members involved in a party split when there was no disqualification petition against them.
Similarly, in the C. Ramachandra Reddy case, the Andhra Pradesh High Court observed that "rules do not inhibit in any manner the jurisdiction of the speaker to entertain a reference on the basis of information that he may have from any source other than by way of a petition by a member of the house".
Nevertheless, without explicit rules regarding the suo motu power of the speaker, the law may be inversely interpreted as a limitation on the authority of the presiding officer in other circumstances.
Fourthly, the viewpoint, as stated in the Ravi Naik case and later reaffirmed in the Kihoto Hollohan versus Zachillhu & Others, that there should be no judicial review before the speaker's judgement, particularly during the interlocutory stage, is dubious.
“If judicial review is permitted prior to the speaker's decision, it will provide additional possibilities to resolve instances when political considerations may have taken precedence over democratic practices, ensuring a fair and transparent process.
This interpretation has its drawbacks as it grants speakers unwarranted privilege to interpret the law through the lens of political considerations, often disregarding democratic principles.
Recent events have exemplified this issue, such as the political debacle in Karnataka (2019) and the crisis of the government in Madhya Pradesh (2020).
In both cases, the speakers' decisions were clouded by partisan motives, leading to doubts about their impartiality and adherence to democratic norms.
There is a possibility that the political crisis in Maharashtra (2022) and similar situations in the past might have been avoided if the court made a timely intervention and reconsidered its decision in the Kihoto Hollohan case, thereby protecting the government from turmoil.
By re-evaluating the stance on judicial review prior to the speaker's decision, there could have been more opportunities to address instances where political considerations could have superseded democratic practices, ensuring a fair and transparent process.
Such an intervention could have had significant implications for upholding the integrity and stability of democratically elected governments during critical junctures.
Aside from the aforementioned loopholes, another question that has arisen in relation to the schedule is whether the speaker's decision can be reviewed by the deputy speaker in circumstances where he becomes the acting speaker. There are conflicting points of view on the subject.
In the Sanjay Bandekar/Ratnakar Chopdekar case, the speaker of the Goa assembly disqualified Bandekar and Chopdekar, citing that they had voluntarily given up their membership of the Maharashtrawadi Gomantak Party.
However, later, the speaker of the assembly was removed from the office. The respondents then filed separate review petitions before the deputy speaker, who then became the acting speaker.
After evaluating the matter, the acting speaker declared the previous Order as "without jurisdiction and unsustainable", leading to the reinstatement of Bandekar and Chopdekar as members of the assembly.
Similarly, in the Ravi Naik case, the earlier orders of the speaker were reviewed and set aside by the acting speaker.
On the contrary, in the case of Luis Alex Cardozo and others, the speaker held that reconsideration of a petition for the same cause of action is barred by the principle of res judicata, that is, the order having the same cause of action as was considered by the speaker cannot be reviewed again by the acting speaker.
Also, conflicting perspectives have arisen regarding the expulsions and status of 'unattached members' under the schedule.
Before the schedule came into force, Lok Sabha had a long-standing tradition where if a member of a political party was expelled, they would be designated as an unattached member.
“Another moot question pertaining to the Tenth Schedule is whether the speaker's decision can be reviewed by the deputy speaker in circumstances where he becomes the acting speaker.
The schedule, however, does not include any specific rules or provisions pertaining to 'unattached members'.
The issue of the status of an unattached member first arose in the K.P. Unnikrishnan case, where the speaker of the eighth Lok Sabha Dr Bal Ram Jakhar declared Unnikrishnan as 'unattached' relying on Section 4(1)(b) of the Tenth Schedule which states that "a member of a House shall not be disqualified if his original political party merges with another political party and he claims that he and any other members of his original political party have not accepted the merger and opted to function as a separate group."
However, during the tenth Lok Sabha, Speaker Shivraj Patil held a contrary view, stating that the term 'unattached' does not appear in the relevant laws and hence the question of unattached members does not arise.
This disparity highlights the differing interpretations regarding the treatment of 'unattached members' within the framework of the schedule.
The implementation of the Tenth Schedule has presented new challenges as presiding officers have exhibited varying interpretations of the law.
While courts have validated certain decisions of presiding officers, in other cases they have overturned them, creating inconsistencies.
“The Tenth Schedule does not include any specific rules or provisions pertaining to 'unattached members' leading to the differing interpretations regarding the treatment of 'unattached members'.
Regrettably, the existence of these loopholes persists due to a lack of strong political commitment, enabling the emergence of novel methods aimed at circumventing the law.
As a consequence, this circumvention of the anti-defection law discourages voters from active political involvement and leaves them pondering a disconcerting question: What is the real value of my vote?