TENTH SCHEDULE
During the 1960s and 70s, a wave of defections by legislators from their original political parties led to political instability in several states. This phenomenon resulted in the downfall of elected governments, raising concerns about the fragility of the political landscape. To address this issue and ensure the stability of elected governments, the 52nd constitutional amendment introduced the 'anti-defection' law through the Tenth Schedule in 1985.
Introduction of the Tenth Schedule (1985)
The Tenth Schedule was implemented with the primary objective of curbing defections and promoting political stability. It outlined specific provisions to discourage legislators from voluntarily leaving their political parties or voting against party instructions in a House.
Key Provisions of the Tenth Schedule
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Defection Definition: The Tenth Schedule defines defection as voluntarily giving up the membership of a political party or voting against the party's instructions in a House.
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Role of the Whip: Party discipline is enforced through the 'whip,' a member of the 'legislature party' appointed by the political party. The whip issues instructions on how party members should vote.
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Disqualification Clause: Legislators who defy party instructions or voluntarily leave their party are liable for disqualification from the House, aiming to deter defections and maintain party cohesion.
Exceptions in the Original Tenth Schedule (1985)
The Tenth Schedule initially included two exceptions:
a. Splitting of Legislature Party (Para 3): One-third members could split from the 'legislature party' to form a separate group without facing disqualification.
b. Merger Clause (Para 4): The merger of a political party with another, approved by two-thirds of its 'legislature party,' did not lead to disqualification.
Recognizing the need for a more robust 'anti-defection' law, the Tenth Schedule underwent amendments in 2003. Notably, Paragraph 3, which allowed one-third members to split, was omitted to reinforce party unity and discourage arbitrary divisions.
3. Issues Arising from Para 3 Deletion
- Practical Defection by Two-Third Members: Removal of Para 3 led to instances where two-thirds of a legislature party 'practically' defected while claiming to be the original party. This loophole allows members to avoid disqualification despite engaging in actions that defy the spirit of the anti-defection law.
- Mergers to Escape Disqualification: Some State legislature parties, with more than two-thirds members, strategically merged with other parties to evade disqualification. Instances in Rajasthan (2019) and Goa (2022) where members from Bahujan Samajwadi Party and Congress, respectively, merged with the ruling party.
Challenges in Disqualification Decision-Making
- Speaker's Authority: The power to decide on member disqualification rests with the Speaker of the House. Past instances indicate a lack of confidence in the neutrality of Speakers, with perceptions of favoritism toward the ruling party.
- Need for Independent Tribunal: In the case of K. M. Singh versus Speaker of Manipur (2020), the Supreme Court recommended a constitutional amendment. The court proposed transferring the authority to an independent tribunal led by judges, aiming to ensure impartiality in decisions related to disqualification.
Instances of Concern
- Rajasthan (2019): All six Bahujan Samajwadi Party MLAs merged with the Congress Party. The merger, involving more than two-thirds of a legislature party, raised questions about the integrity of party defection rules.
- Goa (2022): Eight out of 11 Congress MLAs merged with the BJP.The strategic merger, involving a significant portion of the Congress legislature party, highlighted challenges in preventing defection tactics.
- Supreme Court's Recommendation: The Supreme Court suggested amending the Constitution to transfer disqualification powers from the Speaker to an independent tribunal. The amendment aims to enhance the credibility of the decision-making process and minimize potential biases.
4. Shiv Sena Factional Dispute in Maharashtra
In June 2022, Maharashtra witnessed a significant political turmoil within the Shiv Sena, marked by a factional split and conflicting claims of legitimacy. The key developments in this episode involved the following:
- Factional Split and Claim to Authenticity: A faction of the Shiv Sena, led by Eknath Shinde, asserted its legitimacy and moved with 37 out of 55 MLAs, declaring itself as the genuine Shiv Sena. The UBT faction contested, asserting that they were the original political party, maintaining Sunil Prabhu as their designated whip.
- Appointment of Whips:Shinde Faction: Appointed Bharat Gogawale as their whip. UBT Faction: Affirmed Sunil Prabhu as their whip.
- Speaker's Recognition and Decision: The Speaker officially acknowledged the Eknath Shinde faction as the authentic Shiv Sena based on the group's numerical strength and the party's constitution from 1999. The Speaker deemed the appointment of Bharat Gogawale as whip by the Shinde faction as valid.
- Disqualification Rulings: The Speaker, based on the faction's recognition, declined to disqualify 40 MLAs from the Shinde faction. The Speaker also refused to disqualify 14 MLAs from the UBT group, citing challenges in physically serving whip instructions from Bharat Gogawale.
- Basis of Speaker's Decision: The Speaker's rulings were grounded in an assessment of both the numerical strength of the Shinde faction and the party's internal constitution. The Speaker found merit in the claims of the Eknath Shinde faction and, accordingly, endorsed the legitimacy of their whip appointment.
Challenges and Unresolved Issues
- Disputed Whip Instructions: The Speaker's refusal to disqualify UBT faction MLAs was influenced by the perceived difficulty in physically serving whip instructions from Bharat Gogawale, the whip appointed by the Shinde faction.
- Continued Factional Tensions: The recognition of one faction over the other, coupled with the Speaker's decisions, may exacerbate existing tensions within the Shiv Sena, raising questions about the party's unity and stability.
5. Reforms Needed in Political Party Recognition and Anti-Defection Laws
The existing challenges and ambiguities surrounding political party recognition and the implementation of anti-defection laws in India suggest the necessity for comprehensive reforms. Several key reforms are crucial to enhance transparency, uphold democratic principles, and address issues arising from factional disputes.
Clarification through Supreme Court Ruling- In the Sadiq Ali versus Election Commission of India (1971) case, the Supreme Court established a three-test formula for determining the legitimate faction of a political party.
- The tests include aims and objects of the party, adherence to the party's constitution reflecting inner-party democracy, and majority in legislative and organizational wings.
- An authoritative Supreme Court judgment is needed to address competing claims by rival groups, providing a clear framework for the Election Commission to ascertain the authentic faction.
- The authority to decide on the disqualification of members currently rests with the Speaker of the House.
- Concerns about the impartiality of Speakers have led to calls for transferring this authority to an independent tribunal.
- Establish an independent tribunal, headed by judges, to decide on disqualification cases. This would ensure a more neutral and unbiased approach, enhancing the credibility of the decision-making process.
- Lack of inner-party democracy is identified as a significant factor contributing to defections and factional disputes within political parties.
- Institutionalize internal democracy by mandating regular inner-party elections in political parties.
- The Election Commission should play a proactive role in monitoring these elections, ensuring fairness, transparency, and adherence to democratic principles.
- The Election Commission recognized the Eknath Shinde faction as the authentic Shiv Sena based solely on votes polled in the Maharashtra Assembly elections of 2019.
- Strengthen the role of the Election Commission in overseeing political party recognition, ensuring that decisions are based on a comprehensive evaluation of factors beyond just election results.
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For Prelims: Tenth Schedule, Anti defection law, governor, whip, Election Commission of India, Supreme Court
For Mains:
1. Critically analyze the objectives and effectiveness of the Tenth Schedule in promoting political stability in India. Discuss whether it hinders the democratic right of elected representatives or acts as a safeguard against political horse-trading. (250 words)
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