A Speaker’s flawed move to determine the real faction

A Speaker’s flawed move to determine the real faction

Context: Recently, 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 citing technical reasons under the Tenth Schedule.

What is Anti-Defection law?
• The 52nd 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 91st 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.

What are the 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

Members of Political Parties
o If he voluntarily gives up his membership of such political party; or
o 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.

Nominated Members
o 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.

Independent Members
o 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.

What are exceptions to disqualification?
• 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.

What was the case of Maharashtra?
• The rebel MLAs had secret meetings in a faraway State
• They did not attend the crucial legislative party meetings called by the president of the original Shiv Sena party without giving any reason. This rebellion culminated in the formation of an alliance with the party in Opposition
• Speaker was called upon to decide whether this action of Eknath Shinde and his colleagues could be treated as voluntarily giving up the membership of the party.

What is the issue with Speaker’s decision?
• Which faction is the real party cannot be decided by the Speaker as the Tenth Schedule does not require him to decide this.
• It is decided only by the Election Commission.
• Paragraph 2(1): It says that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.
• It is not the function of the Speaker to determine which faction is the real party as it isn’t part of Antidefection law.

Why did the speaker recognize Shinde faction as real Shiv Sena?
• 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. It 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.

What is the 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.
• The 3 test formula determines based on :
o Aim and objective of the party;
o Its affairs as per the party’s constitution that reflect inner party democracy; and
o Majority in the legislative and organisation wings.