Legislative Coups And The Tenth Schedule

"It is my firm conviction that it is not the Constitution which has failed the people but it is our chosen representatives who have failed the Constitution."

                 -Nani Palkhivala

"There are facilities available even for a heart transplant, but this syndrome of political defections is yet to find a remedy." 

                                                                                                         – Atal Bihari Vajpayee

One of the most vibrant democracies in the world is in India. It has an array of political parties across the ideological spectrum, both at the national and regional spheres, that compete for representation in legislative bodies.  

However, political participation does not come unaccompanied with its vices, chiefly being horse-trading and defection. Crossing the floor of the House by members has become a common feature in the Indian political and legislative landscape. Such acts committed by Members in their quest for monetary benefits, position and power not only betrays the trust of the electorate but also defeats the spirit of constitutional morality. 

The recent developments in Rajasthan have raised an important issue of dissent expressed by MLAs without members  giving up membership of their political party.  The brewing political discontent saw the Speaker of the Rajasthan Legislative Assembly entertain a complaint under paragraph 2 of Tenth Schedule by the Chief Whip of the Congress Legislative Party against the members who had failed to attend a meeting called by the Chief Whip.

What is the Tenth Schedule?

The Rajiv Gandhi led-government was successful in passing the Constitutional (Fifty-Second Amendment) Act, 1985 in Parliament that saw the addition of the Tenth Schedule to the Constitution, commonly referred to as the Anti-Defection Law. This legislation was seen as an instrument to control and curb the evil practice of defection and uphold the sanctity of the Legislature. 

In its existence for over three decades, the Tenth Schedule appears to have done very little to prevent this menace in practice.

The Tenth Schedule applies to both Houses of the Parliament as well as the State Legislature. Tenth Schedule prescribes two conditions that would attract disqualification for a Member: (a) if a member voluntarily gives up membership of the political party from which such member has been elected or; (b) if a member votes or abstains from voting in a manner that contradicts the direction issued by the political party to which he belongs. 

Also Read: Will the Rajasthan Speaker Uphold the Majesty of the State Assembly?

However, paragraph 4 of Tenth Schedule states that a member shall not be disqualified if he belongs to a faction that comprises at least two-thirds of the members of the original legislative party. This faction may have either merged with another political party, formed a new political party or opted to function as a separate group.  

Role of Speaker or Chairperson of the House

The Speaker or the Chairman of the House is the sole adjudicating authority with respect to matters under the Tenth Schedule and whose decision shall be final. Although paragraph 7 imposes a bar on the jurisdiction of courts, in Kihoto Hollohan v. Zachillhu & Ors the Supreme Court held that the office of the Speaker is a quasi-judicial authority, whose decisions are amenable to judicial review. Thus the Tenth Schedule does not oust the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. It is also incumbent upon the Speaker of the House to follow the principles of natural justice whilst adjudicating proceedings under the Tenth Schedule. 

The role of the Speaker in adjudicating disputes under the Tenth Schedule has come under intense scrutiny in the recent past. In November 2019,  a 3-Judge Bench of the Supreme Court of India in Shrimanth Balasaheb Patil v. The Hon'ble Speaker, Karnataka Legislative Assembly decided on disqualification proceedings that were initiated by the Speaker against members of Karnataka Legislative Assembly who had tendered their resignation. The Speaker had not only rejected these resignations but had also disqualified these members till the end of the term. 

(Speaker of Rajasthan Assembly Mr. C P Joshi)

The resignations would not absolve the members from being subject to disqualification proceedings initiated by the Speaker. The court emphasized that the scope of inquiry conducted by the Speaker was limited to the "voluntariness" and "genuineness" of such resignations. Further, the Speaker has a limited mandate in rejecting a resignation that has been tendered by a member. 

The Speaker was not empowered to disqualify the members till the end of the term of the Karnataka Legislative Assembly. The court held that Article 191 clause 2 specifically deals with members who have been disqualified and does not employ the words "for being chosen as". This is contained in clause (1) of Article 191. Hence, even though a member has been disqualified under the Tenth Schedule, he is still eligible to contest the by-elections that would take place in the subsisting term of the Legislature.

Earlier this year, another 3-Judges Bench of the Hon'ble Supreme Court in Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly & Ors called upon Parliament to consider establishing an independent tribunal to impartially adjudicate upon disputes under the Tenth Schedule. The tribunal must be headed either a retired judge of the Supreme Court or retired Chief Justice of a High Court. The court observed the possibility of natural perceived bias by the Speaker given the fact that the Speaker would typically be chosen from the ruling party. This view was similarly echoed by Justice J.S. Verma in his minority opinion in Kihoto Hollohan.

 It is relevant to note that the Dinesh Goswami Committee on Electoral Reforms in 1990 had recommended that either the President or the Governor of the State should,  based on the advice of the Election Commission, adjudicate on disqualification.

Dissent and Defection: Two sides of the same coin?

A Division Bench of Rajasthan High Court in Prithviraj Meena & Ors. v. The Hon'ble Speaker, Rajasthan Legislative Assembly had stayed the disqualification proceedings initiated by the Speaker against dissenting members of the Congress Party of the Sachin Pilot faction. In the order, the court framed questions of law. This includes whether the law laid down in the Kihoto Hollohan judgment extends to include intra-party dissent and whether paragraph 2 of the Tenth Schedule violates Article 19 (1) (a). 

Also Read: Rajasthan HC orders status quo on Speaker's notice against Sachin Pilot and other 18 MLAs [Read Order]

The Chief Whip of the Congress Legislative Party in the Rajasthan Legislative Assembly has filed a Special Leave Petition before the Hon'ble Supreme Court challenging the said Order that has been passed by the Hon'ble Rajasthan High Court.

In the Indian setup, the members of a legislative party are bound by the orders issued by the Chief Whip. Any act committed by a member, contrary to such directions would attract disqualification under the provisions of the Tenth Schedule. This greatly limits the ability of a member to exercise his free opinion on the floor of the House on certain proposed legislations that may affect the interests of such a member's constituents. 

(Chief Whip of Rajasthan Congress Mr Mahesh Joshi)

The Dinesh Goswami Committee Report recommended that disqualification of a member should only be attracted in the event a member votes or abstains from voting in a manner contrary to the directions issued by a whip. Further, it said that this should only concern matters on a motion of vote of confidence, a no confidence motion, Money Bill or a motion of vote of thanks to the President's address. 

The Supreme Court in Kihoto Hollohan held that the freedom of speech of a member was subject to provisions of the Constitution and rules and standing orders that govern the procedures of the House. The majority view even opined that disqualification should only be contemplated if the member votes or abstention could affect the survival of a government.  

In 2010, former MP from Ludhiana, Manish Tewari,  introduced a Bill in the Lok Sabha seeking to amend the Tenth Schedule of the Constitution. The Bill sought to restrict disqualifications as to when a member takes a stand contrary to that of the party during a confidence motion, a no-confidence motion, an adjournment motion, Money Bill or other financial matters. However, the said Bill did not see the light of the day and eventually lapsed.

The Way Ahead

Freedom of speech and expression is an inalienable fundamental right that is vested with every Indian citizen, which is subject to certain reasonable restrictions as may be laid down by law passed by the State. 

Article 19 (2) provides reasonable restrictions to freedom of speech and expression and permits the State to pass legislation in the interest of morality. It remains to be seen as to whether morality, as contained in this provision, is wide enough to include constitutional morality within its scope. If yes, the Parliament should consider amending the Tenth Schedule to fill the lacuna that permits the menace of political defections to this day, whilst upholding the freedom of speech and expression of the member.   

 There is a need to further develop jurisprudence on matters governing anti-defections, by creating a fine balance between legitimate dissents expressed by a member and switching political allegiances. An independent mechanism must be established to replace the Speaker insofar as matters pertaining to defections are concerned.

The leading authority on this subject is the Constitution Bench judgment in Kihoto Hollohan, which is nearly three decades old. It perhaps needs to be revisited by a Seven-Judges Bench of the Hon'ble Supreme Court of India. 

The evolving trends of legislative exercises vis-à-vis the basic fundamental rights of members of legislative houses need to be addressed by the Supreme Court, until the Parliament amends the Tenth Schedule or brings in another legislation that fits the basic structure of the Constitution to uphold the sanctity of parliamentary democracy.

(Mahalakshmi Pavani is a Senior Advocate at the Supreme Court of India. She is Vice-President of INC Legal Cell (SC). Views expressed are personal.)