Syllabus Section: Polity and Governance (GS Paper II)

Importance: UPSC Prelims and UPSC Mains

Why in News?

To get rid of open corruption, it needs to be taken urgent steps to plug existing loopholes that have made the Tenth Schedule unworkable.

About:

Shortcomings in the Anti-defection Law:

• Speaker’s Role:

• In the context of small assemblies, one-third of the members could easily be cobbled together.
• Often, the speaker of the assembly was seen to be collaborating with the political party in power to protect the defectors under the one-third rule.
• Such partisan conduct of the speakers is at the heart of a non-functional Tenth Schedule.
• Examples of such act have seen in Manipur, Goa, Madhya Pradesh, Uttarakhand and other jurisdictions.

• Merger of two-third members with another party: 

• After the omission of paragraph 3, paragraph 4 allowed for the protection of defecting members provided two-thirds of the members of the legislative party merged with another political party.
• This provision has invariably been misused.

• Constitutional ambiguity of Paragraph 4: 

• There is a constitutional flaw in the manner in which the provisions of paragraph 4 have been enacted.
• Paragraph 4(1) stipulates that a member of the house will not be disqualified from his membership where his original political party merges with another political party and he claims that he and other members have become members of the other political party or a new political party is being formed by such merger.
• However, paragraph 4(2) provides that such a merger would be deemed to have taken place only if not less than two-thirds of the members of the legislative party agreed to such a merger.
• This allows for clandestine corruption where two-thirds of the members of the legislative party are bought over, by means fair or foul, to either topple governments or to strengthen a razor-thin majority of the party in power.
• This makes the entire provision unworkable and unconstitutional.

• Prolonging the proceedings: 

• Sometimes, even though the provisions of paragraph 4 are not ex-facie attracted, the speaker of the assembly makes sure that the proceedings are interminably prolonged so that the term of the assembly comes to an end before the proceedings under the Tenth Schedule have been concluded.

Need of Article 164(1B)

• This allows for the toppling of governments by inducements of various kinds.
• The motivation is that a fresh election allows the disqualified member to be re-elected.
• Under Article 164(1B), such a defection has no real consequences.

Way forward

1] Ensure impartiality of Speaker: Speakers, when elected must resign from the party to which they belong.

2] Omit Paragraph 4 through Amendment: Paragraph 4 of the Tenth Schedule should be omitted by moving a constitutional amendment.

3] Make disqualification for 5 years: All those disqualified under paragraph 2 of the Tenth Schedule should neither be entitled to contest elections nor hold public office for five years from the date of their disqualification.

4] Article 164(1B) should be omitted by moving a constitutional amendment.

5] Set time limit to decide petition for 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.

Source: Indian Express