Schedules to the constitution by ATRISHEKHAR

Schedules to the constitution by ATRISHEKHAR

Another problem is that if a matter for defection goes to the courts, even the courts don't have a fixed
time frame to decide upon the issue.

Schedule is basically an explanatory note or an addendum

Schedule 1

A list of states and union territories attached to Article 1 and 4

Schedule II:

It contains salaries and emoluments of important constitutional dignitaries

For example it mentions
the salary of the President as Rs. 10000/mensem where mensem refers to a month in Latin

Schedule Ill deals with oaths:

But the
power to decide salaries, emoluments etc. of all these dignitaries mentioned is with the Parliament which legislates laws regarding these

Since the nature of duties and responsibilities of the dignitaries differed from each other,
consequently their oaths differ too

Oath signifies a commitment and a general and specific direction in which the incumbent is required
to act

Schedule IV:

It deals with the allocation of Rajya Sabha seats in States and Union territories.

In US upper house called senate has 100 members from 50 states each having a fixed 2 members.
The representation is equal irrespective of the size or populations.

The representation in India is unequal and depends on the population of the state.

Punchhi commission recommended an equal representation for states in India.

Schedule V:

The fifth schedule is attached to the Article 244(1) of the constitution

Schedule VI

It deals with the provisions
pertaining to the administration and control of Scheduled Areas and Scheduled Tribes.

Attached with Article 244(2) and 275 ( 1).

It contains provisions pertaining to the administration of
tribal areas in Assam, Meghalaya, Tripura and Mizoram

It deals with the sensitive areas of the North East.

Schedule VIl:

It is attached to Article 246 and it contains the legislative distribution between union and states

UNION

STATE

CONCURRENT

The union list had initially 97 subjects
which has been enlarged to 100,

the state list had 66 which has been reduced to 61 now

After the 101 st amendment of 2016 (GST Act), two subjects namely 92 and 92c were removed
from the Union List and subject number 52 and 55 were removed from the state list,

concurrent list contained 47 subjects that has increased to 52 now

Schedule VIII:

It is attached to article 344( 1) and 351.

It pertains to constitutionally recognized Indian languages,
out of which 22 official languages are listed in the schedule.

Schedule IX:

Added by PM Nehru through first amendment act

Schedule X:

added before in a different form and removed before being replaced by provisions
relating to the Anti-defection.

Sikkim was added as an associate state through the 35th CAA, 197 4 through insertion of Article 2A
and Schedule 10 which were subsequently repealed after it became a full-fledged state in 36th CAA 1975

The present schedule deals with anti-defection and is attached to Article 102(2) and 191(2).lt was
added through 52nd CAA, 1985.

Anti-defection doesn't apply to general party workers but to those members who have been elected to
the legislature based on the party's ticket

The schedule X in the constitution only deals with defection
arising at two levels- Union and states; the panchayats and urban local bodies are excluded from it,

t is upon the state legislature to include the provision in the state local body legislation

Schedule XI

73rd Constitution Amendment Act, 1992

Schedule XII-

7 4th Constitution Amendment Act, 1992

ANTI-DEFECTION LAW

Why such a legislation was needed:

Breach of trust

Instability

Political Corruption

Political Parties

In the late 1960s, defection was becoming rampant and thus a committee under YB Chavan was
appointed,

suggested the moment a legislator defects from the party and joins another
party, he should be disqualified and fresh elections must be held but stopped short of recommending disqualification as a result of defection

The first attempt at curbing the practice was in 1973 through the 32nd Constitution Amendment Bill,
which did not pass.

The second attempt was in 1979 through 48th Constitution Amendment Bill, which also didn't pass.

Eventually Anti-defection law came into being in Rajiv Gandhi's premiership through 52nd
Constitution Amendment Act, 1985.

Provisions of Tenth Schedule

Resignation from political party leads to seat being vacant.

This provision was present in the original law that along with the defectors, if one third split, it would
be deemed a legal split. This has been done away with now

Defying a party whip if not condoned within 15 days.

Independent members:

If they join a party (but they can support government from outside and even become ministers if the
political executive decides as such)

Nominated member:

If the person who is being nominated is already a member of the party, then if he defects, the AntiDefection Law will apply to him too

If a nominated member is not a member of a party, he has two options namely

(1) He can join a party within 6 months fromthe date of his nomination

(2) Post the six month limit if he joins a political party, Anti-Defection Law will come into play.

Exceptions:

Speaker, deputy speaker of LS and legislative assembly, chairman and deputy chairman of
legislative assembly and deputy chairman of RS are exempted

A speaker or deputy speaker is allowed to resign from the party but is not allowed to rejoin the
political party during his tenure as speaker and once his/her tenure ends, he can rejoin only his parent political party from which he resigned

There is no such provision for Vice
President(Chairperson of Rajya Sabha) since he is not a member of the house, so his defection does not arise

some changes

After the 91 st Constitution Amendment Act in 2003, some changes were made in the Anti-Defection
Law and some changes in the constitution too were added to further cement the effectiveness of the it

The one-third split legal rule was repealed.

Changes in constitution:

A party with two-third majority resolution passed can merge with the other party, the members
who do not support the resolution will not be treated as defectors and can continue as a separate

Any allurement concern arising from the prospect of becoming a minister was curbed by limiting
a cap on ministers in LS and assemblies - Article 75(1A}, Article 164(1A).

Article 75(1B) states that any member who has defected cannot be appointed minister again by
the executive for the remaining term of his office unless he gets elected to the house again.

Article 361-B: Any disqualified member shall also be disqualified to hold any remunerative political post commencing from the date of his disqualification till the date of elections of the house

Issues with Anti-Defection Law:

Whip gagging:

Power to decide on the defection:

Article 102 mentions the grounds of disqualification including the defection provision. These
disqualification provisions excluding the defection ones are decided over by the President of India according the advice of Election Commission of India. Similar provisions for state
legislature in Article 192.

If a case of defection happens, any member of the house can file a petition to the speaker to take
action under Anti-Defection Law (ADL)

if the speaker himself undergoes defection, the
petition is supposed to be filed with the secretary general of the house.

And decision regarding ADL petition against speaker would be taken by such a person of the
house specifically elected for the purpose

Since usually the speaker holds the membership of a political party, any decision made by him
can be seen with doubtful lens regarding the fairness of the process

Thus the apex court in Kihoto Hollohan case in 1992, said that there is no wrong in the case
being decided by the speaker,

but there will be a provision for judicial review since the speaker
acts in a quasi-judicial capacity exercising judicial functions, and the highest judicial court is Supreme Court, hence judicial review can be done.

The adjudication process may also lead to errors due to deficient legal acumen, skill, etc. In one
recent observation the SC remarked that the role of speaker as adjudicator in defection cases could be divested from him and handed over to body/tribunal consisting of retired judges

Article 103: Decision on questions as to disqualifications of members

(1) If any question arises as to whether a member of either House of Parliament has become
subject to any of the disqualifications mentioned in clause ( 1 ) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of
the Election Commission and shall act according to such opinion

The provision of whip suppresses genuine dissent.

It does not allow to faithfully represent constituents

It does not allow following one's own conscience.

It also reverses the paradigm of accountability

The courts have given some leeway with regard to ADL: Whip should be applicable on vote of confidence, no
confidence or major policy issue on which the party went to polls.

Anti-Party activities outside the house

The ADL is silent on anti-party activities of this nature.

Halim Committee(1998) said that a legislator is subjected to ADL when he resigns, but for anti-party
activities outside the house the term voluntary resignation in the ADL has to be defined in a more refined way so as to cover the anti-party activities outside the house.

In Ravi Naik Case(1994), even the apex court said that the legislator's conduct from outside the house
like when he is no longer interested in the betterment of the party, he is working against the interest of the party, if not formally, he has taken himself informally outside the party, such a conduct of the
legislator can be inferred as an act of voluntary resignation, even though he hasn't submitted any formal resignation

But the problem concerning how an anti-party activity is defined still remains a matter of debate.

Status of Expelled Members

The Supreme Court in Viswanathan Case (1996) held that this expelled member hasn't voluntarily
resigned and hence such an expelled member would be treated as "unattached member" but he will be subjected to the discipline of his parent political party i.e. accepting whip etc

Formally for the purpose Anti-defection law, he will be still treated as a member of the parent political
party

Role of Speaker

what will happen if the speaker refuses to accept the Anti-defection law petition.

It is the speaker's constitutional duty to accept the petition.

if speaker immediately adjudicates upon the petition without hearing out all the parties and thus violates
the principal of natural justice while carrying out his quasi-judicial function.

speaker has to carry out a thorough investigation and do proper fact finding and should give an
opportunity to render an explanation against the legislator against whom the petition has been field

If the speaker feels that the issue needs a greater investigation, he can also refer to a committee,
usually the Ethics Committee

Rajendra Singh Rana case, 2007 laid out these guidelines namely-whenever the petition is received
by the speaker he has to accept the petition regarding Anti-defection law

secondly he has to go
through a proper investigative process like an opportunity to the defendant to explain himself, to the opponent to file proofs regarding defection and henceforth take a decision

the speaker has
made inordinate delay in arriving at the conclusion and has done floor management to preserve the interests of the political party in power

This is because Anti-defection law does not talk about any time frame within which the decision
should be taken.

Occasionally the courts have directed the speaker to decide the matter within a fixed timeframe. Ideally
a norm should be codified in the ADL where very case should be decided within a span of 3 months.

Another problem is that if a matter for defection goes to the courts, even the courts don't have a fixed
time frame to decide upon the issue.

The SC has laid down the norm that if an Anti-defection law
petition is laid before the courts, it has to be decided within 6 months.

Views of the NCRWC

The National Commission for the Review of the Working of the Constitution was set up under Justice
MN Venkatachalaiah in 2000 to examine the functioning of the constitution, which gave its report in in 2002

The cap on the number of legislators in the council of ministers ( 1 5%) was placed after the NCRWC recommended a cap of 10%.

The defectors should be barred from holding public office or any remunerative political post for the duration of the remaining term

A case may arise in certain situations where the defeated legislators are not disqualified from the house and subsequently participate in the no-confidence motion against the government, then house and subsequently participate in the no-confidence motion against the government, then there may arise instability in the government which anti-defection law tried to prevent.

o NCRWC tried to prevent this by recommending that such votes should be declared invalid as such aprovision is not there in the Anti-Defection Law.

Though the courts have come to the rescue in suchcases of floor management, such norms should be placed in the anti-defection law itself.

The vote cast by a defector to topple the government has to be treated as invalid as recommended by the NCRWC.

Views of Law Commission:

• The Law Commission recommended that the provision that exempts merger and split must be deleted.

• It also suggested that Anti defection law should also cover pre-poll alliances.