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

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.