Last week, 12 of the 14 disqualified MLAs in Karnataka were voted back to office. This was yet another reminder of the complete failure of the Tenth Schedule of the Constitution, more popularly called the Anti-Defection Law. Introduced by the 52nd Amendment in 1985, it was intended to deter the likes of Gaya Lal, the infamous MLA of Haryana who changed parties thrice in one fortnight. But it has singularly failed to prevent unscrupulous defections of the kind we just saw in Karnataka. Incidentally, Gaya Lal also lends his name to the phrase “Aya Ram, Gaya Ram”.
The Tenth Schedule says that a legislator who votes against the party whip or voluntarily leaves the party will be disqualified as a legislator. However, this disqualification is not automatic — the Speaker or the presiding officer of the House has to make this decision on whether he has voted against the party line or left the party’s membership. Furthermore, since 2003, if two thirds of the legislature party decide to defect, it is considered a “merger” and none of the legislators will be disqualified. Originally, even if one-third of the members of a party split away, they wouldn’t be disqualified.
These provisions have been gamed to death by parties across the country. The provision relating to a “split” was misused to such an extent that it was removed in 2003. Governments are being toppled and cobbled together on the basis of unprincipled defections with the threat of disqualification hardly being a deterrent to such behaviour. Either the Speaker behaves in a partisan manner, taking a decision or refusing to take a decision in a manner which will help his party (as was recently seen in Telangana and Andhra) or the legislator simply stands for re-election and returns with a thumping majority, thanks to the money and support of the party he defected to. On the other hand, there has been another negative unintended consequence of the Anti-Defection Law — legislators no longer have the ability to take principled positions on party lines and stand up for their constituents.
If you’re wondering about the quality of legislators falling every election, look no further than the Tenth Schedule to lay blame.
Even when it was introduced by the Rajiv Gandhi government in 1985, many senior parliamentarians had highlighted these defects in the Tenth Schedule, pointing to the chilling effect it would have on speeches on the floor of the House and the loss of the Speaker’s impartiality. These concerns would eventually lead to the Tenth Schedule being challenged in the Supreme Court on the grounds that it was against the concept of democracy and free speech; both basic features of the Constitution. However, the Supreme Court in Kihoto Hollohan v Zachilhu upheld it in a narrow 3-2 verdict, though a part of it was struck down to allow judicial review of the Speaker’s disqualification decisions. The minority judgement authored by Justice JS Verma (on behalf of himself and Justice LM Sharma) was, however, eerily prophetic about the design flaws of the Tenth Schedule.
They said, “The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out… The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy...In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute, with no provision for any appeal or revision against the Speaker's decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution...”
While the majority judgement in Kihoto Hollohan clings to the fond hope that Speakers will act impartially, Justice Verma saw the wisdom behind the constitutional design of not giving the Speaker power to decide disqualification of MLAs, and more importantly, why tampering with this constitutional design thought of by the framers would damage democracy in India.
Given that Justice Verma’s fears have indeed come true, perhaps it is time for the Supreme Court to revisit its judgement in Kihoto Hollohan and maybe also for Parliament to completely rethink the Tenth Schedule.