Aditya Bapat

This piece explores the political personalities who shaped India’s anti-defection framework, tracing the Tenth Schedule’s evolution through the intertwined legacies of Jawaharlal Nehru, Indira Gandhi and Rajiv Gandhi. Moving beyond textual readings of the Constitution, it examines how Indira’s turbulent early years, Rajiv’s idealistic yet cautious legislation, and Nehru’s enduring ethos of dissent and institutional integrity collectively moulded the law. By uncovering the historical impulses behind the Tenth Schedule, the essay reveals the living political drama beneath its ostensibly dry constitutional text.

The Indian Constitution is invoked every day in our courts. In those hallways, the nation’s founding document hums its daily melody through Articles 14, 19 and 21.  The Tenth Schedule makes its appearance only rarely, and only ever as a crescendo –  the moment when the orchestra of politics swells and the nation holds its breath.

After 75 years of being worked and reworked, the Constitution bears the scars and fissures of several tectonic shifts in Indian politics. Starting with the founding fathers, many personalities have chiselled and shaped it, leaving behind only the cold print of its words, faint echoes of their presence. For a fuller understanding of the Constitution, it is therefore necessary to delve into the politics that produced what is, in essence, a political document.

The Tenth Schedule is especially devoid of colour when looked at through the monochrome lens of the constitutional text. Yet, what it seeks to accomplish is monumental: to halt the very mechanics of government formation by ensuring that legislators elected under one party’s symbol cannot defect to another.

This piece aims to examine the roles of three personalities who have impacted the Tenth Schedule. Though there are several other deserving candidates, the triad of Nehru-Gandhi Prime Ministers – Jawaharlal Nehru, Indira Gandhi, and Rajiv Gandhi, have each had a pivotal role to play in its interpretation, understanding and design. The exercise of weighing the influence that they have had on the Tenth Schedule is a rewarding one. My attempt follows.

INDIRA GANDHI

The genesis of the Tenth Schedule can be traced back to the Fourth General Election held in February 1967, which was Indira Gandhi’s first election as Prime Minister of India. Young, untested, very much in the shadow of her late father, and still having to accommodate the galaxy of party stalwarts that comprised the so-called ‘Syndicate,’ Mrs. Gandhi showed few signs of becoming the dominant political force that she was to later morph into. Predictably, Congress got a jolt at the polls, losing 95 seats, and was reduced to a minority in key states like Uttar Pradesh, Madras and West Bengal. The weakening of India’s largest party led to a surge in what was then referred to benignly as ‘floor-crossing’ – while there were 542 defections in the entire period between the First and Fourth General Elections, the 12 months after the Fourth General Election saw 438 defections. Around half of these defectors were included in the Council of Ministers of their states, a clear indication that these were no conscientious dissenters.

By August of that year, the Lok Sabha had already agreed to hold a discussion on what was to be done about “the problem of legislators changing their allegiance from one party to another”. The two hour debate ended with the setting up of a Committee on Defections. The “Lawyers Group” in this Committee,[1] for the first time recommended disqualification for an elected member who repudiates his allegiance to a political party. Interestingly, other members of the Committee objected to the lawyers’ proposal, and it was dropped from consideration.

While Mrs. Gandhi’s turbulent initiation into national politics provides the prologue to what would become the Tenth Schedule, her imprint on this law extends well beyond those early days.

In 1969, two years into her first term as an elected Prime Minister, Mrs. Gandhi’s patience with the old guard in her party had run out. A difference of opinion erupted over who should succeed Dr. Zakir Hussain as President of India. N. Sanjiva Reddy, the Syndicate’s choice, was the Congress Party’s official candidate. The Prime Minister feared he could be leaned upon to remove her. To nip this threat in the bud, she openly threw her weight behind a rival candidate, the sitting Vice President, V.V. Giri. Giri won, with support from pro-Indira legislators in the Congress, who voted against their party’s choice.

In short, Mrs. Gandhi split the party. It is notable that only a third of Congress MPs backed Giri. But with the support of various opposition parties, it was sufficient for him to scrape through. The schism was permanent. Mrs. Gandhi formed a new party called Congress (R)[2].

Four years later, in 1973, a more confident Indira Gandhi, whose Congress (R) had handily won the Fifth General Election in 1971, introduced a bill in Parliament[3] that was the first ever attempt at curbing defections. This bill can well be called the forerunner of the Tenth Schedule, as it accepted the proposal of the Lawyers’ Group in the Committee on Defections to disqualify members who crossed the floor of the House. Just like the present Tenth Schedule, disqualification could be incurred in case of giving up membership of one’s political party and voting against the Whip. Mrs. Gandhi’s bill allowed for one big exception to its terms – in the case of a party split. If a party was to “split,” then there would be no disqualifications under Mrs. Gandhi’s anti-defection law.  Having used the device of a party split once, Mrs. Gandhi was not going to rule out the option in the future.

As it happened, the bill was never put to a vote, and never passed into law. But Indira Gandhi’s conception of an anti-defection law, right down to the exception for a party split, was to live beyond the lifetime of its creator.

RAJIV GANDHI

While the necessity for an anti-defection law was an idea of Mrs. Gandhi’s vintage, the Prime Minister who can truly claim both the credit and the criticism for the existence of the Tenth Schedule has to be the man who legislated it into being, Rajiv Gandhi. In fact, Rajiv campaigned on a promise to end defections. His urgency to bring in the law can be gauged from the fact that his government was voted into power at the end of December 1984, and had introduced the constitutional amendment in the Lok Sabha barely a month later, on 30 January 1985.

In the Prime Minister’s address to the Lok Sabha there remains the language of transformation that he based his election on: “This Bill is the first step towards cleaning our public life.” It had only been one month in power. The dark clouds of the Shah Bano case, the knee jerk decision to open the locks at Ayodhya, and of course, the Bofors scandal, were all absent from the public perception of Rajiv Gandhi.

And yet, on a close reading of Rajiv’s speech to the House at the close of the discussion on the Bill, one is struck by the diffidence of a man who had only recently reached the pinnacle of political achievement:

“There are lots of area in this Bill which are grey. We are covering new ground which maybe is not covered anywhere else in the world. And we have to see how best we can tread along this path, it is better for us to tread cautiously than to make serious errors and repent for them later. So, there will be shortcomings in this Bill. But as we see and identify those shortcomings, we will try to overcome them.”

With the benefit of 41 years’ worth of hindsight, Mr. Gandhi was right to be worried. The law was not a product of his own political experience, but his mother’s. He was not then to know that the exception for “split” of the political party would be misused to the point that it had to be repealed. Other demons in the language would also have escaped his untrained eyes – that a clear and precise articulation of the distinction between the terms ‘legislature party’ and ‘political party,’ so important to the scheme of the Tenth Schedule, would be elusive, and remain elusive even to the present day; and that the Speaker would act in so biased a manner as to render the entire statute unworkable.

However, things may have been worse. Just as Rajiv prepared to make the boldest move of his nascent political career, willing into existence his mother’s law, a familiar voice rose from the past to steady his hand – that of his grandfather, Jawaharlal Nehru.

JAWAHARLAL NEHRU

“THE MINISTER OF LAW AND JUSTICE (SHRI A.K. SEN): …I remember still now how Pandit Nehru used to come here, used to go to the Opposition first and then to the Speaker. The lesson of honouring dissent and of tolerating opposition in a democracy was laid down by that great leader…”

(while introducing the Tenth Schedule for consideration of Parliament)

The ghost of Jawaharlal Nehru has haunted the Tenth Schedule since its inception. The bill that was introduced in 1985 by the Rajiv Gandhi Government had three grounds for disqualification – giving up membership of one’s political party, voting against the Whip, and expulsion from the political party. This third ground, expulsion, set out in Clause 2(1)(c) of the Bill, was considered by several members to be a bridge too far. No intra-party dissent could be expected in a party whose leadership was so all-powerful that it had the power to strip members of political office, regardless of their conduct within the House. This was an especially acute concern at the end of January 1985, when the country had just returned the Congress with the largest majority in the history of independent India –  404 seats in a House of 516.

The first member who rose to oppose Clause 2(1)(c) was the veteran Congressman Bhagwat Jha Azad, the member from Bhagalpur.[4] In a House dominated by his own party, his speech is a fascinating example of dissent as practiced within the Congress fold. And of course, within the Congress fold, the ultimate currency is the Family. A few snatches:

“Sir, I support this Bill, but I have my apprehensions from the beginning, about Clause 2[1](c). I have stood up only to speak and counsel the Prime Minister to accept that this Clause… be dropped. Sir, I remember instances galore of Late Pandit Jawahar Lal Nehru. In spite of his own strong views, he was amenable to the Members’ and Party’s opinions. One such example was about the Hindu Code Bill. We were sitting in the Executive Committee. Panditji wanted that the share in the father’s property should be equal for both daughter and son…But then there were men like Late Katju and D.N. Tiwari, who thought otherwise. There were only two members, myself and one more who agreed with Panditji’s views…We went to the Party meeting. In the Party meeting also, there were again members who believed in the old thought and tradition…So there also, we were overruled. Panditji said that though it was nonsense, he would agree to the majority opinion and then came the Hindu Code Bill.“

He followed this up with two further anecdotes, each portraying Nehru as someone who bowed to the wishes of the Party.

Ultimately, the clause was dropped, with the Prime Minister, the grandson of the man invoked against him, explaining the shift in his position by calling it a “lacuna”  and “it is better for us to tread cautiously than to make serious errors and repent for them later”. 

Nehru has influenced the law of the Tenth Schedule in another way. When it was challenged before the Supreme Court in Kihoto Hollohan, one of the chief grounds for attacking the new amendment was the designation of the Speaker as a tribunal to decide upon disqualification of members under the Tenth Schedule. How, it was argued, could a member elected on a party ticket be expected to be impartial in such matters? Brushing aside this objection, the Supreme Court relied on an old Nehru quote. The office of the Speaker, he had said, “should be occupied always by men of outstanding ability and impartiality.” This prompted the Court to add, “It is inappropriate to express distrust in the high office of the Speaker…the robes of the Speaker do change and elevate the man inside.”

Scrutiny reveals that Nehru emphasised the character needed to occupy the Speaker’s chair. The Supreme Court turned this on its head, proclaiming that the chair itself imparts that character. History has proven Nehru right, and the Supreme Court wrong. Yes, the Speaker ought to be a man (or woman) of ability and impartiality. But no, the robes of the Speaker do not change and elevate the man inside. In fact, the powers conferred on Speakers by the Tenth Schedule seem to have had an opposite effect – to corrode and corrupt the man inside.

Epilogue

The Constitution was meant to be a living document. However, it has been dogged by textual readings that miss the historical context behind its articles. The Tenth Schedule, rent apart above to reveal a few of the faces behind its final form, is proof of the throbbing life beneath the dead text. To see the words emerge from the passions of these characters, I hope, will give the words themselves more character. When we hold the thick booklet that is our Constitution, we should do so with the foreknowledge that the text is just the beginning. It beckons us toward the adventures in history that give it meaning. The invitation is there; it is for us to accept it.

* The author would like to thank Mr. Mohit Meena, a student at NLS, Bengaluru for his assistance with research, thoughtful suggestions and infinite patience.

[1] It comprised of P. Govinda Menon (the Law Minister), MC Setalvad, Mohan Kumaramangalam, CK Daphtary and NC Chatterjee. HM Seervai expressed his inability to be a member of the committee due to his work in Mumbai keeping him occupied.

[2] R stood for Requisitionist. See p. 403, Katherine Frank, Indira.

[3] The Constitution (Thirty-second Amendment) Bill, 1973.

[4] And the father of the cricketer Kirti Azad.

Aditya Bapat is a Counsel practicing in the Bombay High Court. His work spans commercial and criminal matters, as well as arbitrations. He writes on law and literature on his website, adityabapat.com, and is the founder of The Bombay Bar Association Podcast, which features conversations with some of the most respected voices of the Bar and Bench.