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Understanding the Tenth Schedule

Context:

The Speaker of the Maharashtra Assembly has declined to disqualify 40 MLAs from the Eknath Shinde faction, acknowledging it as the authentic Shiv Sena. The appointment of whip by this group has been deemed valid. Additionally, 14 MLAs from the Uddhav Balasaheb Thackeray (UBT) group were not disqualified, citing technical reasons under the Tenth Schedule.

Relevance:

GS-2

  • Indian Constitution
  • Constitutional Amendments

Mains Question:          

Discussing the rationale behind the introduction of the Tenth Schedule, analyse the ambiguities surrounding it. What needs to be done to make it more effective in the Indian democratic and political scenario? (15 Marks, 250 Words).

Rationale Behind the Origin of the Tenth Schedule:

  • The Tenth Schedule, implemented in 1985 through the 52nd constitutional amendment, was a response to the political instability caused by legislators’ defections from their original parties in the 1960s and 70s.
  • This phenomenon led to the downfall of elected governments in various states. The primary objective of the Tenth Schedule was to ensure the stability of elected governments by introducing an ‘anti-defection’ law.

About the Tenth Schedule:

  • According to the Tenth Schedule, a member of a Parliament or State legislature who willingly relinquishes their party membership or votes against their party’s directives in the House is subject to disqualification.
  • The party’s ‘whip’ issues these voting instructions, with a ‘whip’ being a member of the ‘legislature party’ appointed by the respective political party.
  • In this context, a ‘political party’ encompasses the entire organization, including legislators, while a ‘legislature party’ refers specifically to party members in a Parliament or State legislature.
  • Originally, the Tenth Schedule allowed for two exceptions to avoid disqualification. First, one-third of the ‘legislature party’ could split to form a separate group (paragraph 3). Second, a merger of the ‘political party’ with another party, approved by two-thirds of its ‘legislature party,’ was permitted (paragraph 4). However, in 2003, recognizing the need to strengthen the ‘anti-defection’ law, paragraph 3, which allowed for the split, was omitted.

Associated Concerns:

  • The removal of paragraph 3 has led to situations where members of a legislature party, constituting two-thirds, practically defect while asserting to be the original political party, aiming to avoid disqualification.
  • Additionally, there have been occurrences where over two-thirds of a state’s ‘legislature party’ belonging to a national political party merged with another political party to evade disqualification.
  • Notable instances include the merger of all six Bahujan Samajwadi Party MLAs with the Congress Party in Rajasthan in September 2019 and the merging of eight out of 11 Congress MLAs with the BJP in Goa in September 2022.
  • The responsibility to decide on member disqualification rests with the Speaker of the House. Although expected to execute this constitutional role impartially, past instances have raised doubts, with Speakers seemingly favoring the ruling dispensation.
  • In the case of K. M. Singh versus Speaker of Manipur (2020), the Supreme Court recommended a constitutional amendment to entrust these powers to an independent tribunal led by judges, expressing a lack of confidence in the Speaker’s neutrality.

Recent Occurrence in Maharashtra:

  • In June 2022, a faction of the Shiv Sena led by Eknath Shinde, comprising 37 out of 55 MLAs, asserted itself as the genuine Shiv Sena. Bharat Gogawale was appointed as its whip.
  • Conversely, the UBT faction contended that they were the original political party, with Sunil Prabhu continuing as their whip.
  • The Speaker has now officially recognized the Eknath Shinde faction as the authentic Shiv Sena and deemed the appointment of Bharat Gogawale as whip valid. This decision was based on the numerical strength of the Shinde faction and the party’s 1999 constitution.
  • Consequently, the Speaker declined to disqualify 40 MLAs from the Shinde faction and 14 MLAs from the UBT group, citing the inability to physically serve whip instructions from Bharat Gogawale to the latter.

Necessity of Reforms:

  • In the case of Sadiq Ali versus Election Commission of India (1971), the Supreme Court established a three-test formula for the Election Commission to determine the original political party.
  • These tests include evaluating the aims and objects of the party, its affairs in accordance with the party’s constitution reflecting inner party democracy, and assessing majority in the legislative and organizational wings.
  • However, the lack of inner party democracy often contributes to defections. In February 2023, the Election Commission recognized the Eknath Shinde faction as the genuine Shiv Sena based solely on the votes polled by legislators supporting Shinde in the 2019 Maharashtra Assembly elections.

Conclusion:

To address ambiguities surrounding the Tenth Schedule, a decisive Supreme Court judgment in such matters and the establishment of an independent tribunal to handle member disqualifications are essential reforms. The core reform required involves institutionalizing internal democracy through regular inner-party elections in political parties, closely monitored by the Election Commission.


February 2024
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