Context
- Recently, the merger of several MPs from the Trinamool Congress (TMC) with the Nationalist Congress Party (NCP) reignited debate over the interpretation of merger provisions under the Tenth Schedule of the Constitution. The issue has raised questions regarding the conditions under which elected representatives can avoid disqualification after switching political parties.
Tenth Schedule (Anti-Defection Law)
- Added by the 52nd Constitutional Amendment Act, 1985.
- Intended to curb political defections and ensure stability of elected governments.
- Provides for disqualification of legislators who defect from their political party.
Grounds for Disqualification
A Member of Parliament (MP) or Member of Legislative Assembly/Council (MLA/MLC) can be disqualified if:
- They voluntarily give up membership of their political party.
- They vote or abstain from voting contrary to the party whip without prior permission.
Key Definitions
- Political Party: Refers to the entire political organization at the national or state level.
- Legislature Party: Consists of all elected members of a political party within a particular House (Lok Sabha, Rajya Sabha, Legislative Assembly, etc.).
Merger Provision under the Tenth Schedule
- Original Law (1985): Contained two primary exemptions protecting members from disqualification:
- Split (Paragraph 3): If one-third (1/3) of the members of a legislature party split to form a separate group.
- Merger (Paragraph 4): If a political party merges with another, provided it is approved by two-thirds (2/3) of the members of its legislature party.
- 91st Constitutional Amendment Act, 2003:
- Deleted Paragraph 3 (Split Exception): Recognizing that the ‘split’ provision was being misused for mass defections, the amendment completely removed it.
- Current Standing: Only a merger involving at least two-thirds (2/3) of the legislature party is exempt from disqualification.
Recent Controversy: Why the Debate?
- The Tenth Schedule permits the merger of an original political party with another political party.
- Such a merger must be supported by at least two-thirds of the members of its legislature party.
- The Schedule does not explicitly allow two-thirds of legislators alone to merge themselves with another political party.
- Therefore, the legislature party cannot independently initiate a merger and claim protection from disqualification.
- The protection from defection is available only when the original political party undergoes a valid merger.
- The requirement of two-thirds support is meant to approve a party merger, not to authorize legislators to switch parties on their own.
- This issue remains a matter of constitutional interpretation and judicial scrutiny.
Role of the Presiding Officer
- The Speaker of the Lok Sabha or Chairman of the Rajya Sabha/Legislative Council decides questions of disqualification.
- Their decision is subject to judicial review.
Landmark Judgment: Kihoto Hollohan v. Zachillhu (1992)
- Supreme Court upheld the constitutional validity of the Tenth Schedule.
- Held that decisions of the Speaker are subject to judicial review.
With reference to the Tenth Schedule of the Constitution of India, consider the following statements:
1. The Tenth Schedule was inserted by the 52nd Constitutional Amendment Act, 1985.
2. A legislator can be disqualified if he voluntarily gives up membership of his political party.
3. The 91st Constitutional Amendment Act, 2003 removed the provision relating to "split" as an exception to disqualification.
4. Under the Tenth Schedule, two-thirds of the members of a legislature party can independently merge with another political party and claim immunity from disqualification, even if the original political party has not merged.
Which of the statements given above are correct?
(a) 1, 2 and 3 only
(b) 1 and 4 only
(c) 2, 3 and 4 only
(d) 1, 2, 3 and 4
Answer: (a) 1, 2 and 3 only
Explanation:
• Statement 1 is correct: The Tenth Schedule was introduced by the 52nd Constitutional Amendment Act, 1985.
• Statement 2 is correct: Voluntarily giving up party membership is a ground for disqualification.
• Statement 3 is correct: The 91st Constitutional Amendment Act, 2003 deleted Paragraph 3 (Split Provision).
• Statement 4 is incorrect: A plain reading of the Tenth Schedule suggests that the original political party must merge, and two-thirds support of the legislature party is only a condition for recognizing such merger. Mere merger of legislators with another party does not automatically confer immunity from disqualification.