THE CONTEXT:  Recently, the Speaker of the Maharashtra Assembly was required to decide whether the breakaway group of Shiv Sena MLA under the leadership of Eknath Shinde voluntarily gave up the membership of their party. He then would have decided their disqualification depending on the inquiry, but speaker went ahead of his powers under the 10^th schedule and acted on the question as to which faction is the real party.

CONSTITUTIONAL PROVISIONS RELATED TO DISQUALIFICATIONS

• Originally, under the Tenth Schedule, a legislator could avoid disqualification on two grounds.

1. A split in political party occurs wherein one-third of the legislators form a faction and break with that party.

2. The legislator’s party merges with another party and not less than two thirds of them agree to the merger and walkout of the original party.

           In both these cases the outgoing legislators could claim exemption from disqualification.

• But the split provision in paragraph 3 of the Tenth Schedule was omitted through the 91st Constitution Amendment in 2003 because of the frequent abuse of this provision by legislators.
• Now only the merger provision in paragraph 4 remains which can protect defectors provided the conditions stipulated in paragraph 4 are met, the main condition being the merger of the defectors party with another party.
• It is an extremely difficult condition to fulfil, yet this condition is also being circumvented now in a number of cases.
• In Subhash Desai vs Principal Secretary, Governor of Maharashtra & Ors. (2023), the Supreme Court observed that a split has taken place in the Shiv Sena party, and thus two factions have come into existence.
• But in the context of the Tenth Schedule, this observation has no relevance because the Tenth Schedule does not recognise a split now. So, a split in a party no longer exempts the legislators from disqualification.

ISSUES:

1. An attempt to prevent disqualification

• The petition was filed by the original Shiv Sena party which sought the disqualification of the Shinde group. When such a petition is filed before the Speaker, he gets the jurisdiction to decide whether the respondent legislators have defected.
• This rebellion by the group of MLAs loyal to Eknath Shinde culminated in the formation of an alliance with the party in Opposition and Mr. Shinde being sworn in as Chief Minister.
• Speaker was called upon to decide whether this action of Eknath Shinde and his colleagues could be treated as voluntarily giving up the membership of the Shiv Sena party, and, hence, could be disqualified.
• Speaker judgment however tried to avoid this consequence and save the Shinde group from disqualification.

2. Flawed judgement:

• Voluntarily giving up the membership of their original party or voting against the whip of the party are treated as defection. The members of the legislature who do either of these things are liable to be disqualified under the anti-defection law contained in the Tenth Schedule of the Constitution.
• The fact that Eknath Shinde later became the Chief Minister or that a majority of the Shiv Sena’s legislators joined the Shinde group or that the original Shiv Sena party became a minority in the Assembly.
• These facts are irrelevant for the determination of the question of disqualification under the Tenth Schedule and speaker should not have taken into account these things to decide for the disqualification and hence is a deeply flawed judgment.

3. Speaker partial conduct:

• Speaker’s flawed move in the judgement indicates for the misuse of powers against Opposition members and unequal treatment for remarks against leaders.
• This instance of Speakers favouring ruling party is raising concerns over neutrality of the office of the speaker.

4. Against SC judgement:

• The Supreme Court of India has on several occasions explained the scope of the term voluntarily given up the membership used in paragraph 2(1)(a) of the Tenth Schedule.
• In Rajendra Singh Rana vs Swami Prasad Maurya (2007), the Court had said that when a member or a group of members of the ruling party joins hands with the Opposition party and meet the Governor along with the Members of the Opposition and try to form an alternative government, they can be said to have voluntarily given up the membership of their original party.
• So, in this case as well the conduct of the Shinde group of MLAs becomes clear that they have voluntarily given up the membership of their party.
• The Subhash Desai judgment makes it clear that the Shiv Sena led by Uddhav Thackeray is the original political party which alone could issue a valid whip to all the members of the Shiv Sena. It is that party whose membership the Shinde group voluntarily gave up and thus incurred disqualification under paragraph 2(1) of the Tenth Schedule.
• However, speaker went against the SC judgement and given its verdict in favour of the ruling party.

5. Going beyond constitutional provision:

• Tenth Schedule does not require speaker to decide which faction of the party is the real party. Yet, Speaker in this judgement tries to determine which faction is the real party.
• The question as to which faction is the real party cannot be decided by the Speaker as the Tenth Schedule does not require him to decide this. This question is decided only by the Election Commission of India under paragraph 15 of the symbols order.
• The only question that is required to be decided by the Speaker in some cases as a preliminary issue is which party the legislators defected from, or in other words which is their original political party.
• Thus, speaker went beyond the provisions of constitution as well to provide the judgment regarding the disqualification.

THE WAY FORWARD:

• Ensure impartial role of speaker: There is a need for adoption of substantive practices to instil confidence in the office of speaker. For this, there is an urgent need for speakers to demonstrate impartiality along with other reforms.
• Enhance Democratic Functioning: The anti-defection law seeks to balance political stability with democratic representation and legislative accountability. The Speakers of the Lok Sabha and Legislative Assemblies must carry out their functions in accordance with sound democratic practices.
• Amending the constitution: As political dynamics evolve, the legal frameworks ensuring their relevance and effectiveness must be evolved as well. Amendments should address existing shortcomings, such as defining “voluntarily giving up membership” and removing distinctions in disqualification criteria.
• Independent tribunal: There is a need to consider the reforms such as an independent tribunal for handling disqualification cases. This will ensure impartiality in the process and upheld the democratic functioning of the house.

THE CONCLUSION:

The recent case of partial behaviour shown by speaker in case of Maharashtra legislative assembly affects the democratic principles. In this regard, urgent measures are needed to address challenge and restore faith in the institution of the Speaker.

UPSC PREVIOUS YEAR QUESTIONS

Q.1 “Once a speaker, Always a speaker’! Do you think the practice should be adopted to impart objectivity to the office of the Speaker of Lok Sabha? What could be its implications for the robust functioning of parliamentary business in India. (2019)

Q.2 The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (2013)

MAINS PRACTICE QUESTIONS

Q.1 The political crisis in Maharashtra has thrown the spotlight on the anti-defection law and the role of the speaker for the effective functioning of the house. Discuss the measures that can be taken to strengthen the impartiality of the Speaker in performing their duties.

SOURCE: https://www.thehindu.com/opinion/lead/a-speakers-flawed-move-to-determine-the-real-faction/article67741208.ece

THE CONTEXT: In the long-drawn political battle in Maharashtra, speaker in Maharashtra Legislative Assembly announced the verdict in the Shiv Sena MLAs disqualification case. This verdict is viewed as politically charged and has intensified the rift between party factions that has raised question on speaker office as well.

ISSUES:

• Affects representative democracy: Anti-defection law has been criticised as it affects representative democracy and impairs the deliberative nature of politics. It has been also targeted regarding its efficiency to curb political behaviour and the indiscriminate movement across party lines.
• Misuse of discretionary power by speaker: Another issue regarding the issue of anti defection is misuse of discretionary power of speaker. It also indicates that any loophole in the law will be used to the advantage of the majority party. Such misuse is not only the result of the lacuna in the law but also of the structural deficiencies with the role of the Speaker.
• Doesn’t set any time frame: It does not provide a clear and timely mechanism for deciding the cases of defection, and leaves the power to disqualify the members to the discretion of the presiding officers of the houses, who may be biased or influenced by political pressures.
• Limited power of court: It is also noted that the power of court to intervene is limited when the authority is acting ultra vires or there is a colourable exercise of their power. Also, the judicial review cannot be availed at a stage prior to the making of a decision by the Speaker, or at an interlocutory stage of proceedings. These rules limit the authority of the court in this regard.

10^TH  SCHEDULE OF THE INDIAN CONSTITUTION AND THE ROLE OF SPEAKER  

• The Tenth Schedule of the Indian Constitution, also known as the Anti-Defection Law, was added by the 52nd Amendment in 1985.
• It was a response to the toppling of multiple state governments by party-hopping MLAs after the general elections of 1967.
• It lays down the provisions related to disqualification of members of Parliament (MPs) and State Legislatures on grounds of defection.

Exception:

• 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.

Deciding authority:

• The decision on questions as to disqualification on ground of defection are referred to the Chairman or the Speaker of such House, which is subject to ‘Judicial review’.
• However, the law does not provide a timeframe within which the presiding officer has to decide a defection case.

Grounds for Defection:

• If an elected member voluntarily gives up his membership of a political party.
• If he/she votes or abstains from voting in such House contrary to any direction issued by his political party.
• If any independently elected member joins any political party.
• If any nominated member joins any political party after the expiry of six months.
  

THE WAY FORWARD:

• Strengthening Party Accountability: There is a need to introduce regulations to enforce internal party democracy and transparency that could potentially curb defection motivated by discontent within parties. It can be done by making party funding more transparent and accountable which can incentivize defections.
• Address structural issues: To examine the shortcomings of the anti defection law, it is imperative to critically analyse the role and importance of the office of the Speaker as it is the most important functionary under the anti-defection law.
• Global system: There is need to learn and take inspiration from the global system in case of anti defection law. For instance, due to well-established conventions, the Speakers in the United Kingdom shed all party affiliations upon election.

THE CONCLUSION:

It is essential to understand the role of the Speaker in anti defection law to holistically comprehend the manner in which they deviate from the anti-defection laws and subvert the procedure. There is an urgent need for a rigid and uncompromising anti- defection law to regain the faith of the people in the electoral system.

UPSC PREVIOUS YEAR QUESTIONS

Q.1 “Once a speaker, Always a speaker’! Do you think the practice should be adopted to impart objectivity to the office of the Speaker of Lok Sabha? What could be its implications for the robust functioning of parliamentary business in India. (2019)

Q.2 The role of individual MPs (Members of Parliament) has diminished over the years and as a result healthy constructive debates on policy issues are not usually witnessed. How far can this be attributed to the anti-defection law, which was legislated but with a different intention? (2013)

MAINS PRACTICE QUESTION

Q.1 “ The paradoxical nature of the office of the Speaker is one of the leading causes for the ineffective realization of the anti-defection law”. Examine.

SOURCE: https://www.thehindu.com/opinion/editorial/the-speakers-court-on-the-maharashtra-assembly-speakers-ruling/article67731204.ece