tenth-schedule-and-the-political-opportunism

Recently,  the Supreme Court ordered an immediate floor test for the Madhya Pradesh government to prove its majority and Madhya Pradesh got a new government amid high political drama.

Background: 

  • Venal acrobatics of politicians : The unique methods used by the legislators to surpass the tenth schedule are eating the democratic culture embedded in the Indian Constitution.
  • The recent political drama in Karnataka, Madhya Pradesh and Maharashtra highlights the misuse of Anti defection law and government formation, especially in the states, has become a messy affair, 
  • About Anti Defection Law: The Anti-Defection Law was passed in 1985 through the 52nd Amendment to the Constitution, which added the Tenth Schedule to the Indian Constitution. The main intent of the law was to combat “the evil of political defections”.
  • Deciding Authority: The Chairman or the Speaker of the House takes the decision to disqualify a member.
  • Disqualification: Members of Political Parties
  •  If a member of a house Voluntarily gives up the membership of his political party belonging to a political party , or - Votes, or does not vote in the legislature, contrary to the directions of his political party.
  • If an independent candidate joins a political party after the election.
  • Nominated Members: If a nominated member joins a party six months after he becomes a member of the legislature.
  • Amendments done in anti defection law: 91st Constitutional Amendment
  • Wholesale defection:Initially, the disqualification principle did not apply if one-third of the members of a political party severed their allegiance to the party on whose symbol they were elected and joined another political party. This led to mass defections, thereby destabilising elected governments. 
  • The Tenth Schedule was then amended and the one-third provision done away with. The Tenth Schedule now will not apply unless two-thirds of the members of a political party merge with another political party. 
  • Concerns
    • Unique ways to defect:  Sometimes  the evasion comes from the simple refusal of speakers to perform their constitutional duties under the law by not taking a decision as to the disqualification of a member of legislative assembly (MLA) within reasonable time. 
    • This means that an MLA, who has otherwise violated the Tenth Schedule by “defecting” to another political party, will not suffer the legal consequence of disqualification for such “defection,” but instead will continue to enjoy her seat.
  • Avoiding the applicability of the Tenth Schedule: Under Article 190(3)(b) of the Constitution, any legislator is entitled to resign from the House.
    •  The Speaker, upon enquiry, has the power to reject such a resignation.
  • Role of speaker: 
    • The Speakers has started taking an active interest in political matters, helping build and break governments.
    • The Speaker belongs to a political party therefore, their judgment can be partial.
    • The anti-defection law does not specify a timeframe for Speakers to decide on defection proceedings. When the politics demanded, Speakers were either quick to pass judgment on defection proceedings or delayed acting on them for years on end. 
  • Role of governor: If the House is adjourned sine die or prorogued without holding a floor test, then all options are open before the Governor.
    • Floor test a discretionary power of Governor
    • Uttarakhand case: Harish Chandra Singh Rawat v. Union of India ,the Governor set a date for the Chief Minister to request a vote of confidence, but the Assembly was suspended in accordance with Article 356 a day before that date. The Uttarakhand High Court called the centre's decision as "arbitrary" and demanded it’s quashing.

Other rulings of SC

  • In the Manipur case: The Supreme Court hearing the case concerning Manipur Congress MLA, who switched to the BJP after it formed a government in 2017 and received a portfolio, ruled
    • 10th Schedule crucial for a healthy democracy: Rigorous application of the anti-defection law under the 10th Schedule of the Constitution is crucial to the maintenance of a healthy democracy. The court had set an outer limit of three months to decide cases. 
    • Establishment of a permanent tribunal: The speaker is the guardian of the 10th Schedule, but to address accusations of partisan behaviour, the court had recommended the establishment of a permanent tribunal. The tribunal headed by a retired Supreme Court judge or a former chief justice of a high court will decide defection cases expeditiously.

Way ahead: 

National Commission to review the working of the Constitution (NCRWC) recommendation:

  • The provisions of the Tenth Schedule of the Constitution should be amended specifically to provide that all persons defecting - whether individually or in groups - from the party or the alliance of parties, on whose ticket they had been elected, must resign from their parliamentary or assembly seats and must contest fresh elections.
  • The vote cast by a defector to topple a government should be treated as invalid.

The Supreme Court order in the Madhya Pradesh case also brings back into focus the need for more court-mandated clarity on the powers of the governor and the speaker in such situations to prevent horse-trading and strong-arm tactics.
 

About Floor test:

  • A floor test is conducted mainly to assess if the executive maintains the legislature's confidence. 
  • It is a statutory procedure that on the floor of the Legislative Assembly, a Chief Minister appointed by the Governor may be asked to prove support or a floor test is a way to decide whether the majority of MLAs support a government or a Chief Minister. 
  • S.R Bommai Case: Supreme court decided that the test of the Constitutional machinery has to be decided on the floor of Legislative Assembly of the state (by voting) and not as per the whim of the governor.

About The National Commission to review the working of the Constitution (NCRWC) 

It is also known as Justice Manepalli Narayana Rao Venkatachaliah Commission was set up by a resolution of the NDA Government of India led by Atal Bihari Vajpayee on 22 February 2000 for suggesting possible amendments to the Constitution of India.

Also readIndian Political Parties And Their Policies

Types Of Indian Political Parties

Source

Image Source: Indian Express