Challenges associated with the 10th schedule: How to fix the anti-defection loophole

News: There is a need to take urgent steps to fix the Tenth Schedule if the system wants to get rid of open corruption.

Read more: Explained: Anti-defection law, for independent legislators
What are the challenges associated with the 10th schedule?

Paragraph 3: It was omitted by 91st Amendment Act, 2003. This clause protected defectors as long as 1/3 members of the political party formed a separate group. Often the speaker was seen collaborating with a political party to protect the defectors.

Paragraph 4: It provides protection to defecting members if two-thirds of the members of the legislative party merged with another political party. However, this provision has been misused many times like in the case of Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.

Constitutional Flaw: Paragraph 4(1) protects disqualification if the original party has merged with another party. However, Paragraph 4(2) provides that such a merger would be valid only if 2/3rd of the members have agreed to it. This allows for clandestine corruption where 2/3rd members of the party can be bought over.

Partisan role of the speaker: It has come to light that the proceedings are prolonged so that the term of assembly comes to an end before proceedings under the 10th schedule have been concluded. This was seen in Goa, Manipur and Madhya Pradesh.

Article 164(1B): It provides that a member of the Legislative assembly who is disqualified from being a member of the house is also disqualified from being a minister. This disqualification extends till the current term of the house. If reelected, s/he can be a Minister. So the members have incentive to topple the government, as fresh elections would allow the members to be re-elected.

Read here: Tenth Schedule of the Indian Constitution has failed to prevent defections
What provisions can be adopted to fix the imperfections in the 10th Schedule?

-Upon election, Speakers should 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.

– Paragraph 4 of the Tenth Schedule and Article 164(1B) should be omitted by moving a constitutional amendment.

– All those disqualified under the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.

– 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.

Also read: Functioning of Parliament: Challenges and way forward – Explained, pointwise

Source: This post is based on the article “How to fix the anti-defection loophole” published in the Indian Express on 22nd January 2022.

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