Understanding the Tenth Schedule

Jan. 17, 2024

Why in News?

Speaker of the Maharashtra Legislative Assembly has refused to disqualify 40 MLAs of the Eknath Shinde faction after recognising it as the real Shiv Sena.
He also did not disqualify 14 MLAs of the Uddhav Balasaheb Thackeray (UBT) group due to technical reasons under the Tenth Schedule.

What’s in Today’s Article?

Defection (Definition, About the Law, Major Features of the Act, Benefits, Disadvantages, Important Judgements, etc.)
News Summary

What is Defection?

In Legislature, a defector is a person who gives up allegiance to one party in exchange for allegiance to another, changing sides in a way which is considered illegitimate by the first party.
In India, the defections of legislators during the 1960s and 70s from their parent parties created political instability in many States, bringing down elected governments.
Therefore, to ensure the stability of elected governments, the 52nd constitutional amendment introduced the ‘anti-defection’ law through the Tenth Schedule in 1985.

About Anti-Defection Law:

The 52^nd Amendment Act, 1985 provided for the disqualification of the members of Parliament and state legislatures on the ground of defection from one political party to another.
- Through this amendment, a new Schedule i.e. Schedule 10 was added to the Constitution.
This act is often referred to as the ‘anti-defection law’.
Later, the 91^st Amendment Act, 2003 made one change in the provisions of the Tenth Schedule.
- It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

Salient Features of the Act:

The Tenth Schedule contains the following provisions with respect to the disqualification of members of Parliament and the state legislatures on the ground of defection.
Disqualification:

If he voluntarily gives up his membership of such political party; or
If he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party.

An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.

A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House.

If a member goes out of his party as a result of a merger of the party with another party.

A merger takes place when two- thirds of the members of the party have agreed to such merger.

If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or re-joins it after he ceases to hold that office.

Deciding Authority:

Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

In Kihoto Hollohan case (1993), the Supreme Court held that the presiding officer, while deciding a question under the Tenth Schedule, function as a tribunal.
Hence, his decision like that of any other tribunal, is subject to judicial review on the grounds of mala fides, perversity, etc.

Benefits of Anti-Defection Law:

It provides for greater stability in the body politic by checking the propensity of legislators to change parties.
It facilitates democratic realignment of parties in the legislature by way of merger of parties.
It reduces corruption at the political level as well as non- developmental expenditure incurred on irregular elections.
It gives, for the first time, a clear-cut constitutional recognition to the existence of political parties.

Criticism of the Anti-Defection Law:

The law does not make a differentiation between dissent and defection. It curbs the legislator’s right to dissent and freedom of conscience.
It does not provide for the expulsion of a legislator from his party for his activities outside the legislature.
Its discrimination between an independent member and a nominated member is contradictory. If the former joins a party, he is disqualified while the latter is allowed to do the same.

Views of Various Committees on the Anti-Defection Law:

The power of the decision of disqualification shall be to the President/Governor on the advice of the Election Commission.

The provision of split and mergers shall be deleted as an exception from the provision of disqualification.
Pre-poll electoral fronts should be treated as political parties under the anti-defection law.

The defaulters who are not loyal towards their party shall be barred from holding the public office and also they shall be eligible for getting any political post or any remuneration of the party.
The voting cast by the defaulters shall be treated as invalid.

Important Judgements w.r.t. Anti-Defection Law:

In Kihoto Hollohan case, the Supreme Court held that the law is valid in all respects, expect on the matter about judicial review, which was held to be unconstitutional.
In Shri Rajesh Verma v. Shri Mohammad Shahid Akhlaque case, the court held that if the member of the party publicly opposes his original party and supports the other the party then this act deems to be a resignation from the party.
In Mannadi Satyanarayan Reddy v Andhra Pradesh Legislative Assembly case, the question was raised regarding the jurisdiction of Speaker or Presiding Officers.

The court held that there is no provision in the Tenth Schedule which fetters exercise of jurisdiction by the Speaker to decide this question.

News Summary:

In June 2022, a faction of the Shiv Sena headed by the sitting Chief Minister Eknath Shinde moved with 37 of the 55 MLAs and claimed to be the real Shiv Sena. It appointed Bharat Gogawale as its whip.
However, the UBT faction claimed that they were the original political party and that Sunil Prabhu of its faction will continue to be the whip.
The Speaker has now recognised the Eknath Shinde faction as the real Shiv Sena and held the appointment of whip by this group as valid.
This was based on the strength of members of the Shinde faction and the party’s 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 from Bharat Gogawale could not be physically served on them.

About Three-test Formula:

The Supreme Court in Sadiq Ali versus Election Commission of India (1971), laid down the three-test formula for determining which faction is to be recognised as the original political party by the Election Commission.
These are:
- Aim and objective of the party;
- Its affairs as per the party’s constitution that reflect inner party democracy; and
- Majority in the legislative and organisation wings.