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The Uddhav Thackeray camp in the Supreme Court accused Maharashtra Assembly Speaker Rahul Narwekar of deliberately delaying disqualification proceedings against Chief Minister Eknath Shinde for defection.
The Thackeray faction said Mr. Narwekar’s conduct had been in “brazen disregard” of his constitutional duties as a neutral arbiter under the Tenth Schedule (anti-defection law) of the Constitution.
Anti defection law
Individual Members of Parliament (MPs)/MLAs who switch parties are subject to punishment under the anti-defection law.
In 1985, it was included by Parliament as the Tenth Schedule to the Constitution (52nd Amendment Act).
Its goal was to prevent legislators from switching parties, thereby bringing stability to governments.
After the 1967 general elections, party-hopping MLAs overthrew several state governments, prompting this reaction.
It does, however, permit a group of MPs or MLAs to join (or merge with) another political party without risking the defection penalty .
At least two-thirds of a party's members must support a "merger" for it to be considered legal (91st Constitutional Amendment Act of 2003).
Earlier it was defined a "merger" as the "defection" of one-third of an elected political party's members.
It does not punish political parties for supporting or taking on defections from the fold.
The Chairman or Speaker of such a House is tasked with making decisions regarding questions of disqualification due to defection, and those decisions are then subject to "Judicial review."
The presiding officer must make a decision in a defection case, but the law does not specify a deadline.
Grounds of Disqualification
An elected official is disqualified if he or she voluntarily renounces party affiliation.
If he casts a vote—or doesn't cast a vote—in such a House against any directive issued by his political party or anyone with the authority to do so, without first getting consent.
His refusal to cast a ballot must not have been approved by his party or the designated person within 15 days of the incident in order for him to be disqualified.
If a member who was elected independently decides to join a political party.
If any nominated member joins a political party after the initial six months have passed.
Challenges
Frequent defections from even well-organised political parties leave them weak.
The MP or MLA has to follow the party’s direction blindly and has no freedom to vote in their judgment.
No clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases.
Some cases take six months and some even three years.
No Recognition of Split: Due to the 91st amendment, the anti-defection law created an exception for anti-defection rulings.
However, the amendment does not recognize a ‘split’ in a legislature party and instead recognizes a ‘merger’.
What are the loopholes in anti defection law?
The merger issue:
Merger of two third members of the legislature party can be deemed to be a merger of political parties, even if there is no actual merger of the original political party with another party.
Merger of the political party is the precondition to seek exemption from disqualification.
The Speaker cannot make a roving inquiry into the split or merger as the Speaker takes the decision only after ascertaining the fact of the split.
Need of amendments
Legislators have no freedom under the 10th Schedule to split or bring about a merger of their party with another.
Only the original party can do that and the legislators have the choice to agree or not to agree to it.
Political party regulation legislation is urgently needed in India. Such a law ought to strengthen intra-party democracy, bring political parties under RTI, etc.
The doctrine of separation of powers is affected by the chairman/speaker of the house because he or she is the ultimate authority in cases of defection. Transferring this authority to the higher judiciary or the ECI in this situation may help to reduce the threat of defection.
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