Issues with the Tenth Schedule- Understanding the Tenth Schedule

Source: The post Issues with the Tenth Schedule has been created, based on the article “Understanding the Tenth Schedule” published in “The Hindu” on 17th January 2024.

UPSC Syllabus Topic: GS paper 2- polity- Parliament and State Legislatures – structure, functioning, conduct of business, powers & privileges and issues arising out of these.

News: The article explains the application of India’s Tenth Schedule, an anti-defection law, in a recent dispute within Maharashtra’s Shiv Sena party. It also highlights the need for reforms in the law to better address political defections and related challenges.

What is the Tenth Schedule?

Introduction and Purpose: The Tenth Schedule, added to the Indian Constitution in 1985, is an anti-defection law. It was introduced to address political instability caused by frequent defections of legislators during the 1960s and 70s.

Key Provisions: It mandates the disqualification of Members of Parliament or state legislatures if they voluntarily give up their party membership or defy party directives during voting.

Enforcement by the ‘Whip’: Party discipline and voting instructions are enforced through a party-appointed ‘whip’.

Amendments for Strength: Originally, it allowed a one-third faction to split without disqualification (paragraph 3). This was removed in 2003 (91st Constitutional amendment act) to strengthen the law against defections.

For more information read here

What are the Issues with the Tenth Schedule?

Misuse for Political Gains: The Tenth Schedule is often manipulated by lawmakers to defect without facing disqualification. For instance, in Rajasthan in 2019 and Goa in 2022, entire groups of MLAs from one party merged with another, essentially defecting but evading disqualification under the anti-defection law. This tactic undermines the purpose of the Schedule.

Ambiguity in Definition: The law’s criteria for what constitutes defection can be interpreted in various ways, leading to confusion and manipulation. The recent case in Maharashtra illustrates this, where the Speaker recognized the Eknath Shinde faction as the legitimate Shiv Sena, despite claims from the rival Uddhav Thackeray group.

Speaker’s Biased Role: The Speaker’s role in disqualification decisions is criticized for potential partiality. The Speaker, expected to be neutral, often makes decisions favoring the ruling party. The Maharashtra case again serves as an example, where the Speaker’s decision favored one faction over the other.

For more information on challenges associated with the Tenth Schedule read here

What should be done?

Establish an Independent Tribunal: To ensure unbiased decisions on disqualification, an independent tribunal, possibly led by judges, should replace the Speaker’s authority, as recommended in the K.M. Singh vs Speaker of Manipur case (2020).

Strengthen Inner Party Democracy: Implementing regular, transparent inner-party elections, monitored by the Election Commission, can reduce defections. This addresses the root cause, as lack of democracy within parties often leads to dissatisfaction and defections.

Clear Guidelines for Faction Recognition: The Supreme Court, in Sadiq Ali vs. Election Commission of India (1971), proposed a three-test formula—consisting of the party’s aims and objectives, adherence to the party constitution, and majority in legislative and organizational wings—to strictly determine the legitimacy of political factions.

Question for practice:

Examine the issues related to the Tenth Schedule of India’s Constitution and suggest potential reforms or solutions to address these issues.