A Speaker’s flawed move to determine the real faction

Subject: Polity

Section: Legislatures

Context:

In the Shiv Sena case in Maharashtra, 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.

What constitutes defection?

Voluntarily giving up the membership of their original party or voting against the whip of the party are treated as defection and 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.
In Rajendra Singh Rana vs Swami Prasad Maurya (2007), the Court stated that when a member or a group of members of the ruling party joins hands with the Opposition party and meets 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.
Earlier, under the Tenth Schedule, a legislator could avoid disqualification on two grounds: a split in his political party where one-third of the legislators form a faction and break with that party, or the legislator’s party merging with another party and not less than two-thirds agree to the merger and walkout of the original party.
The split provision in paragraph 3 of the Tenth Schedule was omitted through the 91st Constitution Amendment in 2003 due to frequent abuse by legislators. Now only the merger provision in paragraph 4 remains, which can protect defectors provided the conditions stipulated in paragraph 4 are met, such as the merger of the defectors party with another party.

Tenth schedule of Indian constitution

The Tenth Schedule of the Indian Constitution, commonly known as the “Anti-Defection Law,” was added by the 52nd Amendment Act, 1985.
It is a crucial constitutional provision aimed at preventing political defections and maintaining the stability of the government.
The primary objective is to curb the evil of political defections, which often lead to instability and opportunistic changes in the composition of legislatures.
There are certain situations where defection is not considered grounds for disqualification. For example, if a member’s original party merges with another party, or if a significant portion of the party decides to merge with another party, the members are not disqualified.