DISQUALIFICATION UNDER TENTH SCHEDULE - POLITY

DISQUALIFICATION UNDER TENTH SCHEDULE - POLITY

News: All eyes now on Speaker Narwekar for a decision on disqualification petitions

 

What is in the news?

●       The five-judge Bench of the Supreme Court did not decide on the disqualification petitions filed by former Chief Minister Uddhav Thackeray and said, Speaker should decide disqualification petitions within the reasonable period.

 

Key takeaways:

  1. Adjudication of disqualification under Tenth schedule:

○       The Supreme Court said “This court cannot ordinarily adjudicate petitions for disqualification under the 10th Schedule [disqualification on the ground of defection] in the first instance. 

  1. There are no extraordinary circumstances in the instant case that warrant the exercise of jurisdiction by this court to adjudicate disqualification petitions. The Speaker must decide disqualification petitions within a reasonable period.”

○       Kihoto hollohan case 1992: Supreme court has ruled that the decision of the speaker in the adjudication of disqualification under Tenth schedule comes under judicial review.

  1. Appointment of whip by a political party not by legislature party: The apex court held Mr. Narwekar’s decision recognising Bharat Gogawale, a candidate of the Shinde group, as the new Chief Whip of the Shiv Sena party “illegal.”
  2. Stressing the difference between a political party and a legislature party, the court said, “To hold that it is the legislature party which appoints the whip would be to sever the figurative umbilical cord which connects the member of the House to the political party.”

 

Go to the basics:

Anti defection law:

●       The anti-defection law punishes individual Members of Parliament (MPs)/MLAs for leaving one party for another.

●       The Tenth Schedule - popularly known as the Anti-Defection Act - was included in the Constitution via the 52nd Amendment Act, 1985.

●       It sets the provisions for disqualification of elected members on the grounds of defection to another political party.

●       Speaker role under Tenth schedule: Under the Anti defection law, the Speaker is the sole authority to decide upon the matters related with disqualification based on defection from one party to another.

●       As per the Schedule, a member of the House belonging to any party is disqualified if;

○       he voluntarily surrenders his membership in the political party;

○       he votes or abstains from voting contrary to any direction issued by his political party without obtaining prior permission from the party and the act has not been condoned by the party within 15 days.

○       Independent members are disqualified if they join any political party.

○       Nominated members are disqualified if they join any party after six months from the day they took up their position as a Member of the House.

 

●       Exception:

○       The Speaker is permitted to resign from his party when elected and rejoin when he has left the post.

○       However, it allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection. And it does not penalise political parties for encouraging or accepting defecting legislators.

○       As per the 1985 Act, a 'defection' by one-third of the elected members of a political party was considered a 'merger'.

○       But the 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in Favour of a "merger" for it to have validity in the eyes of the law.