Rishad A Chowdhury
Recent events in Rajasthan have brought renewed focus on the Tenth Schedule and the scheme enshrined in that constitutional provision governing the disqualification of legislators who cross party lines. It's hard to avoid a sense of déjà vu — different versions of this political drama have played out in the past few years in Karnataka, in Madhya Pradesh and elsewhere.
The Tenth Schedule, originally inserted in the Indian Constitution in 1985, has a chequered history. But there appears to be a growing consensus that it has failed to achieve its objective of curbing opportunistic defections from one political party to another. A more accurate manner of putting it, perhaps, is that it has controlled or streamlined the permissible means of changing political direction midstream, and in a way, made it costlier in a crude transactional sense.
The Kihoto Hollohan judgment of the Supreme Court (SC) in 1992, in the course of upholding the constitutional scheme enshrined in the Tenth Schedule, highlighted the importance of political parties in the Indian democratic system. Members of Parliament (MPs) and Members of the Legislative Assembly (MLAs) are elected, in principle, if not always in fact, on the political and ideological platform of their party. So it is legitimate, the SC said, to hold them to that. If they wish to step away from that ideology, they are free to do so but must seek a fresh mandate from the people.
A constitutional amendment in 2003 significantly narrowed the permissible exceptions to this prohibition on party-switching, effectively permitting legislators to escape disqualification only in the event that a minimum of two-thirds of the legislators chose to switch, rather than one-third as was the case with the original clause. It further sought to close other potential means of “compensating” defectors by also disqualifying such persons from holding any remunerative political posts within the government.
It is difficult to fault the underlying ethos of the Tenth Schedule, even if we ruefully accept the fact that it can often be circumvented one way or the other. However, looking more intensely into important characteristics of our polity, and to certain features that have assumed outsized importance in recent years, the virtues of the Tenth Schedule appear less substantial and its drawbacks larger.
This constitutional mechanism is, as the SC has recognised in its judgments, premised on a recognition of the political party as the fulcrum of the polity. In and of itself, this may be broadly correct. But the associated assumption, that an electoral contest between political parties will involve reasoned debate and deliberative decision-making with respect to defined electoral programmes and manifestos, is far more questionable. Part of this goes to the lack of democracy within political parties themselves.
The Congress attracts much grumbling, even from well-wishers, for its complete lack of intra-party democracy and the continued dominance of the Nehru-Gandhi family. But in the era of Prime Minister (PM) Narendra Modi, the Bharatiya Janata Party (BJP) is equally dominated by his unrivalled popularity and broad national appeal. Examples can be cited at the regional level too: Mamata Banerjee in West Bengal, the Thackerays in Maharashtra, Mayawati in the context of the Bahujan Samaj Party.
National and state elections, in that sense, appear to have become quasi-presidential in nature. And so, while the tendency of critical masses of legislators to jump ship at crucial moments has not changed substantially since the enactment of the Tenth Schedule in 1985, the political backdrop has evolved significantly. In the 1990s, and arguably extending until the election of PM Modi, we witnessed an era of unstable coalition governments — the United Front governments, and then that of the first National Democratic Alliance and United Progressive Alliance.
In that era, the pragmatic objective of providing some stability to the coalition precariously stitched together would have further increased the perceived relevance of the Tenth Schedule.
Today, things look very different. The lack of intra-party democracy and the uber-dominance of certain political leaders is only one aspect. The lack of public debate and reasoned decision-making on the most critical issues of the day is conspicuous. Polarisation and the proliferation of fake news on social media have only compounded the problem. In this radically-changed political context, the broader argument being made today by former Rajasthan deputy chief minister Sachin Pilot — on the value of outspoken dissent within political parties — has greater resonance. We need more stirrings within political parties, and within governments, not less.
Consider the presidential primary contest in the United States, for example, where prospective nominees of the Republican and Democratic parties must necessarily engage in a rigorous and extended state-by-state process before even emerging as candidates for the general election. Or, if it is felt that a proper analogy may be made only to parliamentary systems, take the intense contests for leadership in the prominent political parties in the United Kingdom.
The Tenth Schedule doesn't directly impede intra-party democracy or deliberative decision-making. The point is that the factors impeding the success of India's parliamentary democracy are less attributable to straying legislators (dubious though their motives may be, and unsavoury though the spectacle might be) and more to deep-seated systemic challenges.
Irrespective of the Tenth Schedule, there are grave dangers these broader challenges pose to our democracy. These cannot be ignored.
Rishad A Chowdhury is an advocate-on-record at the Supreme Court and Partner, Verus
The views expressed are personal
