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.