Context
The ongoing political crisis in Maharashtra, and many others before it, are grim reminders of what the Tenth Schedule can and cannot do.
About 10th Schedule
- In 1985 the Tenth Schedule, popularly known as the anti-defection law, was added to the Constitution.
- But its enactment was catalyzed by the political instability after the general elections of 1967.
- This was the time when multiple state governments were toppled after MLAs changed their political loyalties.
- The purpose of the 1985 Constitution Amendment was to bring stability to governments by deterring MPs and MLAs from changing their political parties on whose ticket they were elected.
- The penalty for shifting political loyalties is the loss of parliamentary membership and a bar on becoming a minister.
Provisions of the 10th Schedule
- Instances of floor crossing have long gone unchecked and unpunished.
- In part, this can be attributed to the exemption given to mergers between political parties which facilitate bulk defections.
- Disqualification provision: The second paragraph of the Tenth Schedule allows for disqualification of an elected member of a House if such member belonging to any political party has voluntarily given up membership of their party, or if they vote in the House against such party’s whip.
- Exceptions: Paragraph 4 creates an exception for mergers between political parties by introducing three crucial concepts — that of the “original political party”, the “legislature party”, and “deemed merger”.
- What is the legislature party? It means the group consisting of all elected members of a House for the time being belonging to one political party.
- Original political party: An “original political party” means the political party to which a member belongs (this can refer to the party generally, outside of the House).
- Paragraph 4 does not clarify whether the original political party refers to the party at the national level or the regional level.
How Paragraph 4 of the 10th Schedule deals with mergers?
- Paragraph 4 is spread across two sub-paragraphs, a conjoint reading of which suggests that a merger can take place only when an original party merges with another political party, and at least two-thirds of the members of the legislature party have agreed to this merger.
- It is only when these two conditions are satisfied that a group of elected members can claim exemption from disqualification on grounds of merger.
- The second sub-paragraph (of Paragraph 4) says that a party shall be “deemed” to have merged with another party if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
- However, in most cases there is no factual merger of original political parties at the national (or even regional) level.
- Creation of legal fiction: Paragraph 4 seems to be creating a “legal fiction” so as to indicate that a merger of two-third members of a legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
- In statutory interpretation, “deemed” has an established understanding.
- The word “deemed” may be used in a law to create a legal fiction, and give an artificial construction to a word or a phrase used in a statute.
- In other cases, it may be used to include what is obvious or what is uncertain.
- In either of these cases, the intention of the legislature in creating a deeming provision is paramount.
Merger exception and issues with it
- The merger exception was created to save instances of the principled coming together of political groups from disqualification under the anti-defection law, and to strike a compromise between the right of dissent and party discipline.
- In the absence of mergers of original political parties, the deeming fiction could, presumably, be used as a means to allow mergers of legislature parties.
- Encouraging defection: Reading Paragraph 4 in this manner would empower legislature parties to solely merge with another party, and thus, practically ease defection.
What if sub-paragraphs are read conjunctively?
- For a valid merger then, an original political party has to first merge with another political party, and then two-thirds of the legislature party must support that merger.
- Given the politics of current times, stark differences in parties’ respective ideologies, and deep-seated historical rivalries, it is unimaginable how a merger between major national or regional parties would materialise.
Way forward
- Remove Paragraph 4: In a situation where either reading of Paragraph 4 in its current form yields undesirable results, its deletion from the Tenth Schedule is a possible way forward.
- The Law Commission in 1999 and the National Commission to Review the Working of the Constitution (NCRWC) in 2002 made similar recommendations.
- Revisiting by Supreme Court: Till that happens, an academic revisiting of the Tenth Schedule by the Supreme Court, so as to guide future use of the anti-defection law, is timely and should happen soon.
Conclusion
Neither of these two interpretations of Paragraph 4complements the ‘mischief’ that the Tenth Schedule was expected to remedy — that of curbing unprincipled defections. Amending it is the need of the hour.
