10TH SCHEDULE - POLITY

News: Speaker’s view on 10th schedule open to challenge: Experts

 

What's in the news?

       Maharashtra assembly speaker Rahul Narwekar’s verdict in a batch of petitions filed by the two factions of the Shiv Sena seeking disqualification of rival camp’s legislators may open a new chapter in the Sena vs Sena tussle, according to legal experts, who opined that the speaker’s interpretation of the Tenth Schedule of the Constitution can be challenged in the apex court.

 

Key takeaways:

       The Supreme Court had stated that the legislative party cannot be considered as the original party but the Speaker in the garb of ambiguity in the Shiv Sena’s constitution, declared the legislative party headed by Eknath Shinde as the real party.

 

10th Schedule:

       The Tenth Schedule — also known as the anti-defection law— provides that members of political parties who disobey the whip or vote against the party in a confidence motion, will face disqualification.

 

Anti-defection:

       The anti-defection law provides for the disqualification of MLAs who, after being elected on the ticket of a political party, “voluntarily give up their party membership”.

 

Objective:

       The anti-defection law sought to prevent such political defections which may be due to reward of office or other similar considerations.

 

Constitutional basis:

       The Tenth Schedule was inserted in the Constitution in by 52nd Amendment Act, 1985.

 

Procedure:

       It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on a petition by any other member of the House.

       The decision on disqualification questions on the ground of defection is referred to the Speaker or the Chairman of the House, whose decision is final.

 

Condition of Defection:

The following are the grounds for disqualification.

A member can be disqualified if:

       A member of a house belonging to a political party:

       Voluntarily gives up the membership of his political party, or

       Votes, or does not vote in the legislature, contrary to the directions of his political party (Whip). However, if the member has taken prior permission, or is condoned by the party within 15 days from such voting or abstention, the member shall not be disqualified.

       An independent candidate joins a political party after the election.

       A nominated member joins a party six months after he becomes a member of the legislature.

 

Applicable to: The law applies to both Parliament and state assemblies.

 

Exceptions in Law:

       Legislators may change their party without the risk of disqualification in certain circumstances.

       The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.

       In such a scenario, neither the members who decide to merge, nor the ones who stay with the original party will face disqualification.

 

Interpretation by Courts:

The Supreme Court has interpreted different provisions of the law.

       The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation.

       The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.

       However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct.

       In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

 

Judicial review:

       Decision of the Presiding Officer is subject to judicial review.

       The law initially stated that the decision of the Presiding Officer is not subject to judicial review.

       This condition was struck down by the Supreme Court in 1992, thereby allowing appeals against the Presiding Officer’s decision in the High Court and Supreme Court. (Kihoto Hollohan case)

       However, it held that there may not be any judicial intervention until the Presiding Officer gives his order.