SC Dismisses Plea Challenging Paras 4 & 6 of Tenth Schedule On New Grounds, Says Bound By Law Laid Down By Constitution Bench

The new issue raised in the plea reads thus: “Apart from the provisions of paras 4 and 6 of the Tenth Schedule another serious loophole in the existing anti-defection law is that a legislator can resign from the Legislature, switch sides, re-contest under a new symbol and come back to the House from a different party. The 'operation Kamal' in Karnataka in 2008 and 2019 and recent similar episodes in Uttarakhand, Madhya Pradesh, Goa, and Manipur are the latest examples of this sordid situation”.

However, a bench led by Chief Justice of India D.Y. Chandrachud while refusing to entertain the plea observed, “Once the constitutional validity of the same provision which is impugned in the present case has been upheld, a petition under Article 32 of the Constitution cannot be entertained. Sitting in a Bench of three Judges, this Court is bound by the law which has been laid down by the Constitution Bench”.

The bench also comprising Justice J.B. Pardiwala and Justice Manoj Misra noted that having due regard to the fact that the challenge has been repelled in the judgment of a Constitution Bench of the Court in Kihoto Hollohan's case, it was not inclined to entertain the petition under Article 32 of the Constitution of India.

Solicitor General Tushar Mehta and ASG. K M Nataraj, AORs Devashish Bharuka, Sahil Tagotra appeared for the respondents.

In the pertinent matter, the petition was filed to challenge the validity of paras 4 and 6 of the Tenth Schedule of the Constitution, seeking proper enforcement of provisions of Articles 14, 102(2), 103, 191(2) and 192 and the other provisions of the Tenth Schedule of the Constitution so that the growing trend of defections frustrating the mandate of the electorate and/or toppling elected governments for personal and/or political benefits is checked. “The problem of defections by legislators in search of greener pastures has been troubling our democracy for more than half a century”, the plea read.

The Tenth Schedule was inserted in the Constitution by the Constitution (Fifty-Second Amendment) Act, 1985, providing for the disqualification of Members of Parliament and state legislatures on the grounds of defection. Challenging the same provision, Kihota Hollohan raised a pertinent question before the Court whether the broad and powerful role given to the Speaker violated the doctrine of basic structure. However, the Apex Court in majority judgment upheld the constitutionality of the anti-defection laws, and further held that “the Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable”.

“Due to the aforesaid apparent legal infirmities in the existing provisions in the Tenth Schedule, even after more than 3 decades of its introduction the malady of political defections continues unabated. It needs to be addressed as soon as possible so that the original intent of the 52^nd Amendment to ensure political stability and checking betrayal of voters' mandate becomes a reality unhampered by the loopholes in the existing law. The recent spate of incidents in various states highlights the need for urgent intervention by this Hon'ble Court to put an end to this sad state of affairs threatening the proper functioning and future of democracy in the country”, the present plea read.

The following prayers were sought in the plea:

- to direct that- (1) pending amendment of the Constitution in terms of the recommendations of in the judgment dated January 21, 2020 in CA No.547 of 2020, decision on questions as to disqualification of members of G Parliament/State Legislatures on the ground of defection shall be taken by the President/Governor in terms of the provisions of Articles 103(2) and 192(2) as the case may be; 

-pending requisite changes in the law by the Parliament in terms of the observations in the judgment dated November 13, 2019 in the case of Karnataka- (i) the cost of expenditure incurred by the Central/State governments on conducting bye-elections shall be recovered from the legislators whose resignation/ disqualification leading to fall of the pre-election shall be (1B) of the Constitution, and (ii) defiance of whip issued by a political party shall result in disqualification only when the voting in the House may affect the formation/continuance of government, such as trust vote/no-confidence motion, passing the budget/ supplementary demands, and motion of thanks on the Governor's address to the House.

Cause Title: Lok Prahari Through Its General Secretary S.N.Shukla, I.A.S.(Retd.) v. Union Of India & Ors.