TENTH SCHEDULE OF THE INDIAN CONSTITUTION
1.Context
A five-judge Bench of the Supreme Court of India is presently hearing a set of cases popularly known as the “Maharashtra political controversy cases”. These cases arose out of the events in June last year, when the ruling Maha Vikas Aghadi (MVA) coalition (the Shiv Sena, the Nationalist Congress Party and Congress) lost power after an internal splintering of the Shiv Sena party.
2.About Tenth Schedule
The anti-defection law was introduced into the Constitution via the Tenth Schedule, in 1985
Its purpose was to check increasingly frequent floor-crossing; lured by money, ministerial berths, threats, or a combination of the three, legislators were regularly switching party affiliations in the house (and bringing down governments with them)
The Tenth Schedule sought to put a stop to this by stipulating that if any legislator voted against the party whip, he or she would be disqualified from the house
While on the one hand this empowered party leadership against the legislative backbench, and weakened the prospect of intra-party dissent, the Tenth Schedule viewed this as an acceptable compromise in the interests of checking unprincipled floor-crossing
3.Present Scenario
In the last few years, there have been innumerable instances of governments being “toppled” mid-term after a set of the ruling party or coalition’s own members turn against it.
That this is power-politics and no high-minded expression of intra-party dissent is evident from the well-documented rise of “resort-politics”, where party leaders hold their “flock” more or less captive within expensive holiday resorts, so as to prevent the other side from getting at them
Politicians have adopted various stratagems to do an end-run around the anti-defection law
Recent examples involve mass resignations (instead of defections) to force a fresh election, partisan actions by State Governors (who are nominees of the central government) with respect to swearing-in ceremonies and the timing of floor tests, and equally partisan actions by Speakers (in refusing to decide disqualification petitions, or acting in undue haste to do so). The upshot of this is that, in effect, the Tenth Schedule has been reduced to a nullity: governments that do not have clear majorities are vulnerable, at any point, to being “toppled” in this fashion
4.Role of Courts
With scenarios like now, Supreme Court role is very crucial these days
Disputes over government formation and government toppling invariably end up before the highest court
It must immediately be acknowledged that such cases place the Court in an unenviable position: the Court has to adjudicate the actions of a number of constitutional functionaries: Governors, Speakers, legislative party leaders, elected representatives, many (if not all) of whom, to put it charitably, have acted dubiously
But the Court does not have the liberty of presuming dishonesty: it must maintain an institutional arm’s-length from the political actors, and adjudicate according to legalities, even as political actors in anti-defection cases do their best to undermine legality, which is a challenging task
This is one of those situations where the proof of the pudding is in the eating: despite the fact that the Court’s intervention has been sought in every one of these cases, and despite the fact that in recent years the Supreme Court has handed down multiple substantive judgments on anti-defection, the toppling of governments remains as frequent as ever
5. Examples
Court's judgment in the Karnataka political controversy, which effectively sanctified resignations as an end-run around the anti-defection clause
Present case of Maharashtra makes it unique case:
The Deputy Speaker (there was no Speaker at the time) moved to disqualify the “rebels” who in turn moved the Court, arguing that there was a pending no-confidence motion against the Deputy Speaker, and therefore, as per the Supreme Court’s judgment in Nabam Rebia, he was disqualified from deciding on the disqualifications while it was pending.
6.Way Forward
It is held that a Speaker cannot decide a disqualification petition while under a notice for removal themselves, and that a floor test can be ordered in the interim (by the Governor or the court), the consequences are obvious: a “rebel MLA” can move a notice for removal, incapacitate the Speaker from taking action, and leave rebel MLAs free to bring down the government without consequence.
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For Prelims: Tenth Schedule, Anti-defection law
For Mains:
1.Examine the issues in the effective functioning of Anti-defection law
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Source: The Hindu
