Maharashtra Speaker gives verdict on Shiv Sena split

Maharashtra Speaker gives verdict on Shiv Sena split

Subject: Polity

Section: Parliament and legislature

Context:

Maharashtra Speaker Rahul Narvekar recognised the Shinde faction as the “real Shiv Sena”,while deciding on a set of 54 petitions calling for disqualification of Sena MLAs on both sides.

Anti Defection Law:

• The Tenth Schedule which is popularly known as the Anti-Defection Act  was included in the Constitution via the 52nd Amendment Act, 1985 and sets the provisions for disqualification of elected members on the grounds of defection to another political party.
• The grounds for disqualification under the Anti-Defection Law are as follows:
  • If an elected member voluntarily gives up his membership of a political party.
  • If he votes or abstains from voting in such House contrary to any direction issued by his political party or anyone authorized to do so, without obtaining prior permission.
  • If any independently elected member joins any political party.
  • If any nominated member joins any political party after the expiry of six months.
• Some exceptions to 10th Schedule:
  • As per the 1985 Act, a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’.
• 91st Constitutional Amendment Act:
  • But the 91stConstitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party have to be in favor of a “merger” for it to have validity in the eyes of the law.
  • The members so disqualified can stand for elections from any political party for a seat in the same House.
  • The law applies to both Parliament and state assemblies.
  • Provision of Tenth schedule which provides for exemption from disqualification in case of split by one third members of legislative party has been deleted by this amendment.
• Role of speaker:
  • In KihotoHollohan vs Zachillhu And Others’ case, the Supreme Court upheld the sweeping discretion available to the Speaker in deciding cases of disqualification of MLAs.
  •  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’.
  • There is no time limit as per the law within which the Presiding Officers should decide on a plea for disqualification. The courts also can intervene only after the officer has made a decision, and so the only option for the petitioner is to wait until the decision is made.

Constitutional Provisions for Disqualification of MLAs

• Under the Constitution, a person shall be disqualified for being chosen as and for being a member of the legislative assembly or legislative council of a state:
• If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by state legislature),
• If he is of unsound mind and stands so declared by a court,
• If he is an undischarged insolvent,
• If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state, and
• If he is so disqualified under any law made by Parliament.

Parliamentary Provisions for Disqualification of MLAs

• The Parliament through  Representation of People Act (1951 has prescribed a number of additional disqualifications for members of Parliament and to the House or Houses of the Legislature of each State
• He/She must not have been found guilty of certain election offenses or corrupt practices in the elections.
• He/She must not have been convicted for any offense resulting in imprisonment for two or more years.

Governors decision:

• The governor’s decision is final on the question whether a member has become subject to any of the above disqualifications.
• The governor should obtain the opinion of the Election Commission and act accordingly.