Overview on Tenth Schedule

The Tenth Schedule to the Constitution was added by (Fifty second Amendment) Act 1985 and the Statement of objects and reasons said this amendment was to curb political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed was to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. The Constitutional validity of the Tenth Schedule was assailed and the Constitution Bench of Supreme Court in Kihoto Hollohan v Zachillhu and Others (1992) 2 SCC 651 held that Speaker/ Chairman while exercising powers and discharging functions under the Tenth Schedule act as Tribunal and though para 6 of Tenth Schedule refers that the order passed by Speaker is final however the order passed can be subject to judicial review on four grounds : mala fides, perversity, violation of constitutional mandate and order passed in violation of natural justice.

 

‘Voluntarily giving up membership‘

 

Supreme Court in Ravi S. Naik Vs. Union of India & Ors. 1994 SCC (11) 641 held that words “voluntarily given up his membership” in Para 2(1 )(a) of the Tenth Schedule are not synonymous with “resignation” and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of the party. Even in the absence of a formal resignation from membership an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs. Also Supreme Court in G Viswanathan v Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras and Another (1996) 2 SCC 353 held that, in view of explanation to para 2(1) of the Tenth Schedule, an elected member of the House shall be deemed to belong to the political party by which he was set up as a candidate for election, and that even if such member is thrown out or expelled from the party, for the purpose of the Tenth Schedule he will not cease to be a member of the political party that had set him up a candidate and also held that the act of voluntarily giving up membership of the party may be express or implied.

 

Power of review to Speaker under Tenth Schedule

 

Supreme Court in Dr Kashinath G Jalmi and Another v The Speaker And Others (1993) 2 SCC 703 held that there is no power of review to the Speaker/ Chairman under the Tenth Schedule, and that the Speaker order is final being subject only to judicial review as held in Kihoto Hollohan(supra).

 

Procedure of CPC not applicable to Tenth Schedule

 

Supreme Court in Dr Mahachandra Prasad Singh v Chairman Legislative Council (2004 ) 8 SCC 747 held that there is no provision in the Tenth Schedule that the petition has to be signed and verified as per CPC and that just necessary facts on account of which a member has incurred disqualification under para 2 may be brought to the Speaker /Chairman and para 6 of the Tenth Schedule does not contemplate moving of a separate petition for assumption of jurisdiction by Chairman or Speaker of the House.

 

Some recent controversies 

 

These days there is a new trend of legislators resigning from the ruling party to avoid the “anti-defection law” and governments were toppled in Karnataka and Madhya Pradesh this way and thereafter those people becoming ministers in the new government for six months till the time elections were held on those seats. It is high time that Parliament does something about this as toppling governments this way is defeating the mandate of people in democracy.

 

When the act of defection takes place

 

The Constitution Bench of the Supreme Court in Rajendra Singh Rana v Swami Prasad Maurya and Others ( 2007) 4 SCC 270 held that Speaker has to decide the question of disqualification with reference to the date on which a member voluntarily gives up his membership or defies the whip and it is really a decision ex post facto i.e disqualification relates back to the date when the act of defection takes place. Any interested person can file a disqualification petition Supreme Court in Speaker Orissa Legislative Assembly v Utkal Keshari Parida (2013)11 SCC held that Rules framed in exercise of the powers conferred under Para 8 of the Tenth Schedule cannot override provisions of Para 2 of the Tenth Schedule and further held that not only a Member of the House but any person interested would be entitled to bring to the notice of the Speaker the fact that a Member of the House had incurred disqualification under the Tenth Schedule( in this case all the four Members of the NCP had joined BJD and the disqualification petitions were filed by President of the State unit of NCP).

 

Merger as per Para 4 of Tenth Schedule

 

It may be noted that Para 3 of the Tenth Schedule was omitted by Constitutional (Ninety first Amendment) Act 2003 , however, the Supreme Court in Jagjit Singh V State of Haryana (2006) 11 SCC 1 while dealing with a case of split as per para 3 of the Tenth Schedule held that prima facie proof of split is necessary to be produced before the Speaker so as to satisfy him that such a split has taken place that for the purpose of the split, it cannot be held that it is the State Legislature party in which split is to be seen and in case a Member is put by a National Political Party, it is split in that party which is relevant consideration and not a split of the political party at the State level. Also, the Constitution Bench of the Supreme Court in Rajendra Singh Rana v Swami Prasad Maurya and Others (2007) 4 SCC 270 also while dealing with a case of split held that those who have left the party will have to show prima facie by relevant material that there has been a split in the original party and split in the original political party has to be separately established if a split in legislature party is shown. Though Jagjit Singh and Rajendra Rana were cases of split as per Para 3 of Tenth Schedule which was omitted by Constitutional (Ninety first Amendment) Act 2003, and there is no pronouncement of the Supreme Court with regard to para 4 of the Tenth Schedule which deals with merger and merger shall be deemed to have taken place if and only if , not less than two thirds of the members of the Legislature party concerned have agreed to such a merger. But same analogy needs to be accepted for Para 4 of the Tenth Schedule for the purpose of merger also as held in Jagjit Singh and Rajendra Rana i.e purpose of merger also if the members claiming merger had been set up by a National party then in that case it has be shown that merger has taken place at National level and just two-third members of the legislature party have agreed to such merger should not be sufficient so that the constitutional mandate is not defeated.

 

Period of disqualification 

 

The Supreme Court in Shrimanth Balasaheb Patil(supra) held that the Speaker is not empowered to disqualify any member till the end of the term. However, a Member disqualified under the Tenth Schedule shall be subject to sanctions provided under Article 75(1- B), 164(1-B) and 361-B of the Constitution which provides for a bar from being appointed as Minister of from holding any remunerative post from the date of disqualification till the date on which the term of his office would expire or if he is reelected to the legislature whichever is earlier.

 

Independent body to decide disqualification petition

 

Supreme Court in Kesham Meghachandra Singh (supra)in a landmark judgment has now fixed the outer limit of three months from the date of its fling for the Speaker to decide disqualification petitions so that constitutional objective of disqualifying persons who have infracted the Tenth Schedule is adhered to as the persons who have incurred disqualification do not deserve to be MPs/ MLAs even for a single day as found in Rajendra Singh Rana ( supra) , if they have infracted the provisions of Tenth Schedule . That in spite of the Judgment of the Supreme Court in Kesham Meghachandra Singh (supra), the Speaker Manipur Assembly was not deciding the disqualification petition and the Supreme Court by order dated 18.3.2020 exercising the powers under Article 142 of the Constitution debarred the member from entering the Legislative Assembly and from being member of the Cabinet. Also the Manipur High Court in Khumukcham Joykishan Singh v Hon’ble Speaker MLA decided on 8.6.2020 exercising powers under Article 226 of Constitution of India passed an order restraining the members from entering Legislative Assembly as the Speaker Manipur Legislative Assembly was not deciding the disqualification petitions

Some issues still to be addressed

1) It is high time Parliament may consider amending the Constitution to substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter of the disputes concerning disqualification under Tenth Schedule with a permanent Tribunal headed by a retired Supreme Court Judge or a retired Chief Justice of a High Court or some other independent mechanism so that disputes are decided swiftly and impartially thus giving real teeth to the provisions of the Tenth Schedule which is so vital for the proper functioning of democracy as noted by Supreme Court in Kesham Meghachandra Singh (supra)

2) That suitable amendment in the Constitution be made that a member defecting cannot contest next elections and hold public office for a period of five years so that the objective of “Tenth Schedule” is achieved.