Understanding the Tenth Schedule
- The Maharashtra Assembly Speaker has refused to disqualify MLAs of the Eknath Shinde faction after recognising it as the real Shiv Sena.
- This has raised concerns about the application of the Tenth Schedule and the anti-defection law.
The Tenth Schedule
- Enacted in 1985 through the 52nd constitutional amendment to counter defections that destabilised the elected governments.
- Prohibits members from voluntarily leaving their party or voting against party instructions, enforced by the party ‘whip’.
- A ‘whip’ is a member of the ‘legislature party’ in a House who is appointed as such by the respective ‘political party’.
- The Tenth Schedule originally provided for two exceptions that would not render the members liable for disqualification.
- One-third members of the ‘legislature party’ splitting to form a separate group (para 3).
- Merger of the ‘political party’ with another party that is approved by two-third members of its ‘legislature party’ (para 4).
Issues Arising from Deletion of Para 3
- Instances of two-third members of a party ‘practically’ defecting but claiming to be the original political party in order to escape disqualification.
- Instances where more than two-third members of a party merged themselves with another political party to escape disqualification.
Role of the Speaker and Need for Reforms
- The authority to decide on the disqualification of members is vested in the Speaker of the House, raising concerns about impartiality.
- Past instances show Speakers favouring ruling dispensations, prompting suggestions for an independent tribunal headed by judges.
- K. M. Singh versus Speaker of Manipur (2020)
- SC recommended Parliament to amend the Constitution to vest these powers in an independent tribunal headed by judges.
Maharashtra Case Overview
- Eknath Shinde faction claimed to be the genuine Shiv Sena in June 2022, with 37 out of 55 MLAs.
- The Speaker recognized this faction and validated their whip's appointment based on party strength and the 1999 constitution.
- The Speaker, based on this ruling, refused to disqualify 40 MLAs of the Shinde faction.
- He also refused to disqualify 14 MLAs of the UBT group as the whip instructions could not be physically served on them.
The Three Test Formula
- The Supreme Court in Sadiq Ali versus Election Commission of India (1971), laid down the three-test formula for determining the original political party.
- These include
- Aims and objects of the party
- Its affairs as per the party’s constitution that reflect inner party democracy
- Majority in the legislative and organisation wings
- These include
Reforms Needed
- An authoritative Supreme Court judgement in these matters and setting up of an independent tribunal to decide on disqualification of members is needed.
- Lack of inner party democracy often leads to defections, prompting the need for institutionalising internal democracy through regular inner-party elections monitored by the Election Commission.