Rahul Narwekar, Speaker Maharashtra assembly ruled a crucial the Shinde faction is the original Shiv Sena and Thackeray does not have any right to remove him.

The Speaker gave the verdict on the cross-petitions by Shiv Sena factions seeking disqualification of each other’s MLAs. Eknath Shinde faction is the real Shiv Sena in the Assembly and its MLAs cannot be held disqualified. In June 2022, Eknath Shinde and several MLAs rebelled against then-chief minister Uddhav Thackeray, leading to a split in the Sena and the fall of the government.

 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 that introduced the 52nd Amendment with the insertion of the Tenth Schedule. This amendment helped to restrict the elected members belonging to a political party from leaving that party and switching 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. 

1. If the member voluntarily gives up membership of the party on whose ticket s/he is elected. 
2. 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.
3. 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.
4. 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.
5. 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 will be treated as a member of the political party to which he or she has switched to.

Crucially, for 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 of 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 Tenth Schedule 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 of 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 the Constitution (Ninety-first Amendment) Act, 2003. 

                       The law before the 91st Amendment Act, of 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 favor of a merger to gain validity before the law.

                                         NOMINATED MEMBERS

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 offenses, he will be disqualified for 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.