10th Schedule Interpretation of Anti Defection Law questiond in Supreme Court of India
The Supreme Court today(July 27) issued notice to the Union Government in a responce to writ petition challenging the interpretation of the 10th Schedule to the Constitution that allows legislators to avoid disqualification under the anti-defection law by taking the route of a political party merger.( Live Law )
Brief Facts:
1. The practice of political defections is almost as old as the Republic. It reached its peak in the late-1960s, where crossing the floor and “horse-trading” became extremely common, to the point where legislators were known to cross the floor twice in a single day (this was colloquially known as “aya ram, gaya ram politics.”)
2. Legislative attempts to address political defections, which began in the 1960s, culminated in the introduction of the 10th Schedule to the Indian Constitution, in 1985. In essence, the 10th Schedule provided that:
a. If a member voted against the party whip, or voluntarily relinquished the membership of their political party, they would be subject to disqualification from the House;
b. The two exceptions to this were a “split” and a “merger” (defined as 2/3 or more of a party choosing to “merge” with another party).
c. Disqualification proceedings were to be adjudicated by the Speaker of the House, acting as quasi-judicial tribunal.
3. The constitutional validity of the 10th Schedule was challenged before this Hon’ble Court in Kihoto Hollohan vs Zachillhu, primarily on the grounds that it violated the basic structure, and prevented legislators from exercising their individual conscience. In Kihoto Hollohan, a Constitution Bench of the Supreme Court upheld the 10th Schedule (other than paragraph 7, which excluded judicial review), inter alia, on the ground that legislators were predominantly elected by virtue of their association with, and membership of, a political party, and without the ability to enforce party discipline, the party system itself could not last.
4. Despite the introduction of the 10th Schedule, it was found that the practice of political defections had not ceased. In particular, the “split” exception was used to engineer mass defections from political parties, and defeat the purposes of the 10th Schedule.
5. Accordingly, in 2005, through a constitutional amendment, paragraph 3 of the 10th Schedule was deleted, and the concept of the “split” was removed. However, the provisions for “merger” remained.
6. In the years since 2005, it has been observed that on many occasions, the provisions for “merger” are now weaponised to accomplish what was earlier accomplished through splits: that is, the engineering of mass defections and the wholesale breaking of political parties, in order to get around the rigours of the Tenth Schedule.
In this regard, through writ petition, it was requested to
Issue a mandamus declaring that (A) Paragraph 4 applies only if one political party merges with another political party or two political parties merge to form a new political party
and
held unconstitutional the interpretation allowing splinter groups to escape provisions of anti defection law by merging with other political parties.
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