Daijiworld Media Network - Mumbai

Mumbai, Sep 14: Senior advocate and Rajya Sabha MP Kapil Sibal has proposed a major overhaul of the anti-defection law, suggesting that the Tenth Schedule of the Constitution be scrapped and replaced with a provision that would disqualify legislators who switch parties during their term from holding public office or constitutional positions for 10 years.

Sibal made the proposal while speaking at a discussion titled ‘Horse Trade and Democracy’ organised by the All India Lawyers Union in Kochi. He argued that the existing anti-defection framework has failed to prevent political defections and that the merger exception under the Tenth Schedule is increasingly being misused.

“I think we need a complete overhaul. We should scrap the 10th Schedule, and we should amend the Constitution with only one provision,” Sibal said. He proposed that anyone changing political allegiance during the term should not be allowed to hold public office, any position or constitutional authority for the next 10 years.

Sibal has also approached the Supreme Court challenging the interpretation of Paragraph 4 of the Tenth Schedule, which deals with the merger exception. His petition argues that the existing interpretation enables legislators to avoid disqualification by using the merger route and can alter the electoral mandate without voters being given an opportunity to decide again.

The Supreme Court in July issued notice to the Centre on Sibal’s petition. The plea is particularly significant amid a series of political realignments involving legislators from parties including the Shiv Sena, Trinamool Congress and Aam Aadmi Party.

Sibal has argued that the merger provision is being used to facilitate what amounts to organised defection. Under the present framework, members of a legislature party can avoid disqualification when their original political party merges with another party and at least two-thirds of its legislators agree to the merger.

According to Sibal, this provision defeats the purpose of the anti-defection law because legislators can effectively change the political composition of an elected House without seeking a fresh mandate from voters. He has questioned whether a legislative-party merger should be recognised when the original political organisation has not itself merged.

The issue has particular relevance in Maharashtra, where the split in the Shiv Sena led to a prolonged constitutional and legal battle over the status of rebel legislators, disqualification proceedings and control of the party. Sibal, who represented the Uddhav Thackeray faction in the Supreme Court, has repeatedly criticised defections and warned of their impact on parliamentary democracy.

In June, Sibal had described defections by elected parliamentarians as “immoral, illegal, unconstitutional”, arguing that legislators elected on the strength of a particular party symbol should not simply cross over to another party with a different symbol without consequences.

He has also argued that the restrictions should cover mass resignations followed by re-election. Under his proposed framework, a legislator should not be able to resign, join another party and contest the subsequent election to circumvent the consequences of defection.

Sibal has cited the earlier misuse of the ‘split’ provision as an example. The split exception, which had allowed legislators to escape disqualification when a specified proportion broke away from a party, was removed from the Tenth Schedule through the 91st Constitutional Amendment in 2003. Sibal contends that the merger exception is now being exploited in a similar manner.

The debate comes at a time when the effectiveness of the anti-defection law is again under scrutiny. Maharashtra Assembly Speaker Rahul Narwekar recently said that research was being conducted to make the law more effective, with a committee of Assembly Speakers examining possible improvements to the existing framework.

Sibal’s proposal, if implemented, would require a constitutional amendment and could fundamentally change the consequences of political defections in India. His Supreme Court petition and the wider debate are now putting the constitutional framework governing party-switching under renewed scrutiny.