Supreme Court, issues related to the split in Shiv Sena in June 2022 said the issue of disqualification ought to be decided as per established procedures in law and the Speaker is the appropriate authority for this under the Tenth Schedule of the Constitution, which lays down the anti-defection law.
- It held that “it is the political party and not the legislature party which appoints the Whip and the Leader of the party in the House”.
- Therefore, it said the Speaker must recognise only the whip and leader who are duly recognised by the political party.
- Supreme Court judgment has ruled that the party referred to in the schedule is the actual political party and not the legislature party alone. The whip that binds the legislators comes not from within the legislature, but from outside it. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party.
- It also clarified that an MLA has the right to participate in proceedings of the House regardless of pendency of any petitions for disqualification.
- The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue.” the Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly
Paragraph 3 of the Tenth Schedule protected defectors as long as one-third of the members of a political party formed a separate group. It was removed by the Constitution (91st Amendment) Act, 2003, which came into effect on January 1, 2004.
LEARNING WITH TIMES/WITHOUT CLASSES/FROM HOME
The Anti Defection Law was a landmark legislation o in 1985 which introduced the 52nd Amendment with insertion of the Tenth Schedule. This amendment helped to restrict the elected members belonging to a political party to leave that party and switch to another party in Parliament.
- The anti-defection law sought to prevent such political defections which may be due to reward of office.
- The 10th Schedule laid down the process by which legislators may be disqualified.
- If the member voluntarily gives up membership of the party on whose ticket s/he is elected.
- If the member votes or abstains from voting in the House contrary to any direction/whip of his/her party. Disqualification may be avoided if the party leadership condones the vote or abstention within 15 days.
- If a member of the current House is disqualified, it means he/she cannot contest any election to the current House. However, he/she can contest the next assembly election.
- Also, Article 164 (1B) of the Constitution states a member who has been disqualified cannot be made a minister till the expiry of his or her term, or till he/she is re-elected.
- The law does not specify a time-period for the presiding officer to decide on a disqualification plea.
Paragraph 2 of the Tenth Schedule lays down situations wherein a member of a house belonging to any political incurs a disqualification from being a Member of a House. Sub-paragraph (1) of paragraph 2 makes it clear that the conduct which attracts disqualification is subject to paragraphs 4 and 5 of the Tenth Schedule.
Sub-paragraph (1) of paragraph 4 exempts an MLA/Member of Parliament [MP] from disqualification in case the “original political party” to which he or she belongs, ‘merges’ with “another political party”, and if such merger has been accepted by the member and any other members of the original political party. In such a scenario, the MLA/MP in question who has crossed over will be protected from disqualification under paragraph 2 of the Tenth Schedule and would treated as a member of the political party to which he or she has switched to.
Crucially, for the purposes of sub-paragraph (1) of paragraph 4, the ‘merger’ of the original political party is deemed to have taken place, “if and only if”, two-thirds members of the “Legislature party” concerned have agreed to such merger. The expression “legislature party” (in contradistinction to “political party”) assumes legal significance in the context of a merger. A “legislature party” and “political party” are treated as two distinct entities for the purposes of the Tenth Schedule and in particular under paragraph 4(2). Even though there may be no merger of a political party with another political party at the national level, a merger can take place, if two-thirds members of the legislature party within the assembly have agreed to a merger with another legislature party in the Legislative assembly.
Under sub-paragraph (2) of paragraph 4, it is for the “members of the Legislature party” (and not the political party as a unit) to decide whether there should be or should not be a merger of their political party with “another political party
SPLIT and MERGER
Splits and mergers were exempted under the law . The law allowed bulk defections under exemptions for a one-third split in a party and merger clauses. The split option was rendered null and void through an amendment in the Tenth Schedule by Constitution (Ninety-first Amendment) Act, 2003.
The law before the 91st Amendment Act, 2003 defined defection by one-third of the elected members of a political party as a ‘merger’. A merger avoided the penalty of disqualification under the Act.However, the 2003 Amendment changed this by positing that at least two-thirds of the members of a party must be in favour of a merger to gain validity before the law.
This law also applies to the nominated candidates, who have a time slot of 6 months to choose any one of the available political parties to be a part of, and disallows them from joining any party after the mentioned time slot has expired
DISQUALIFICATION ON CONVICTION
If an MLA is disqualified on conviction for certain offences, he will be disqualified for a period of six years under Section 8 of the Representation of People’s (RP) Act.
But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.
POWER OF JUDICIAL REVIEW
Supreme Court in Kihoto Hollohon v. Zachilhu wherein para 7 of the amendment has been ruled to be violating the basic structure theory as it took away the Judiciary’s function of Judicial Review completely. The court made it clear that the presiding officer is the one to make the decision and it is final subject to judicial review after the decision is presiding officer.