How to fix the anti-defection loophole

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Kapil Sibal writes: If our polity wants to get rid of open corruption, it needs to take urgent steps to fix the Tenth Schedule

It is time that we took a fresh look at the Tenth Schedule to our Constitution. We need to supplant it with a regime that does not make a mockery of those who openly flout its provisions and enjoy the trappings of power without any serious consequences. The flaws in the functioning of the Tenth Schedule, as it exists, are many.

First, paragraph 3 of the Tenth Schedule was omitted by the Constitution (91st Amendment) Act, 2003, which came into effect on January 1, 2004. Paragraph 3, as it existed prior to the amendment, protected defectors as long as one-third of the members of a political party formed a separate group. In the context of small assemblies, one-third of the members could easily be cobbled together. In such situations, a government’s stability was always in jeopardy. It also allowed for piecemeal defections reaching the threshold of one-third of the total members of a political party, thereafter allowing the defectors to claim protection under paragraph 3. Often, the speaker of the assembly was seen to be collaborating with the political party in power to protect the defectors under the one-third rule. Such partisan conduct of the speakers is at the heart of a non-functional Tenth Schedule.

Second, after the omission of paragraph 3, paragraph 4 allowed for the protection of defecting members provided two-thirds of the members of the legislative party merged with another political party. This provision has invariably been misused. The seeming political bias of the speakers acting as tribunals is apparent from how disqualification petitions are dealt with. We have seen this happen in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.

Third, there is a constitutional flaw in the manner in which the provisions of paragraph 4 have been enacted. Paragraph 4(1) stipulates that a member of the house will not be disqualified from his membership where his original political party merges with another political party and he claims that he and other members have become members of the other political party or a new political party is being formed by such merger. However, paragraph 4(2) provides that such a merger would be deemed to have taken place only if not less than two-thirds of the members of the legislative party agreed to such a merger. This allows for clandestine corruption where two-thirds of the members of the legislative party are bought over, by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power. This makes the entire provision unworkable and unconstitutional. Protection of defectors under paragraph 4 is often deployed in situations where the disgruntled elements within a political party, as members of the legislative party, are persuaded to use these provisions even though no merger has taken place in terms of paragraph 4 of the original political party.

We have witnessed situations where, even though the provisions of paragraph 4 are not ex-facie attracted, the speaker of the assembly makes sure that the proceedings are interminably prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule against those ex-facie defectors have been concluded. The case of Goa is a glaring example where proceedings dragged on for a couple of years and now that fresh elections are around the corner, these proceedings have no value in law. We witnessed the same in Manipur. In Madhya Pradesh, too, the Congress government fell because of such open defections. The same fate befell a coalition government in Karnataka.

The other very disconcerting constitutional feature in relation to defections that requires urgent attention is Article 164(1B). It stipulates that a member of the legislative assembly who is disqualified from being a member of the house under paragraph 2 of the Tenth Schedule shall also be disqualified to be a minister from the date of his disqualification till the date on which the term of his office as such a member would expire or where he contests the election to the legislative assembly before the expiry of the term of the assembly. This allows for the toppling of governments by inducements of various kinds. The motivation is that a fresh election allows the disqualified member to be re-elected. He then becomes a member of the assembly once again, as its term is not over and can also be appointed a minister. Under Article 164(1B), such a defection has no real consequences. It is clearly a provision that surpasses all canons of morality.

To supplant the Tenth Schedule, speakers, when elected must resign from the party to which they belong. At the end of their term, there should be a cooling-off period before they can become members of any political party. Second, paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment. Third, all those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification. And Article 164(1B) should be omitted by moving a constitutional amendment.

All petitions for disqualification of members under paragraph 2 of the Tenth Schedule should be decided, by adopting a summary procedure, within a period of three months counted from the date of filing of petitions for disqualification. An appeal should be provided for under the Tenth Schedule only to the Supreme Court.

If our polity wants to get rid of open corruption, it needs to take urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable. Let our politicians not be seen as collaborators in flouting the Constitution.

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