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UPSC EDITORIAL ANALYSIS : A Speaker’s flawed move to determine the real faction


Source: The Hindu

  • Prelims: Anti-defection law, floor test, Tenth schedule, powers of speaker etc
  • Mains GS Paper II: State legislature- functioning, role and conduct of business, role of judiciary in checks and balances etc



  • The Speaker of the Maharashtra Assembly was required to decide whether the breakaway group of Shiv Sena Members of the Legislative Assembly (MLA)
    • They voluntarily gave up the membership of their party and later voted against the whip issued by that party thereby incurred disqualification




Anti Defection Law:

  • The anti-defection law under the Tenth Schedule of the Constitution, was enacted to curb frequent floor-crossing by legislators.
  • Its purpose was to bring stability to governments by discouraging legislators from changing parties.
  • It sets the provisions for disqualification of elected members on the grounds of defection to another political party.
  • It allows a group of MP/MLAs to join (i.e., merge with) another political party without inviting the penalty for defection.
  • It does not penalize political parties for encouraging or accepting defecting legislators.
  • The 91st Constitutional Amendment Act, 2003, changed this and now at least two-thirds of the members of a party must be in favor of a “merger” for it to have validity in the eyes of the law.
  • The members disqualified under the law can stand for elections from any political party for a seat in the same House.
  • 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’.
  • The law does not provide a timeframe within which the presiding officer has to decide a defection case.


Grounds of Disqualification: 

The Supreme Court on paragraph 2(1)(a) of the Tenth Schedule(Rajendra Singh Rana vs Swami Prasad Maurya(2007)):

  • 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 tries to form an alternative government
  • They can be said to have voluntarily given up the membership of their original party.
  • The consequence of this is disqualification.


Subhash Desai vs Principal Secretary, Governor of Maharashtra & Ors. (2023):

  • The Supreme Court observes that a split has taken place in the Shiv Sena party, and thus two factions have come into existence.
  • 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.


Case of Maharashtra:

  • The rebel MLAs had secret meetings in a faraway State
  • They did not attend the crucial legislative party meetings called by the president of the original Shiv Sena party without giving any reason.
  • This rebellion culminated in the formation of an alliance with the party in Opposition
  • 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 party.


Under the Tenth Schedule, a legislator could avoid disqualification on two grounds:

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


Issues with Speakers decision:

  • Which faction is the real party cannot be decided by the Speaker as the Tenth Schedule does not require him to decide this.
    • It is decided only by the Election Commission under paragraph 15 of the symbols
  • Paragraph 2(1):It says that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.
    • It is not the function of the Speaker to determine which faction is the real party that is not germane to the anti-defection law.


Reasons for bringing anti-defection law:

  • Governments: Defections caused the frequent fall of governments
  • Instability: It caused great instability in political parties with power-seeking politicians wreaking havoc on political parties.


Way Forward

  • The Speaker’s declaration that the appointments of the Chief Whip and the legislature party leader are valid runs counter to the Supreme Court’s finding(paragraph 119 of the Subhash Desai judgment).
    • The Court held that the decision of the Deputy Speaker recognising the Chief Whip is valid.
  • 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.
    • As regards the question of which faction is the real Shiv Sena, it can be decided only by the Election Commission of India.
  • Parliament while enacting the Tenth Schedule did not consider paragraph 15 of the Symbols order as a relevant factor.
  • Splitting and merging MLAs were exempted from disqualification under the Tenth Schedule to protect instances of principled defections, especially where MLAs found themselves at odds with the ideology of their original party.
    • The practical use of these exceptions belies this expectation, with mergers being engineered strategically to bring down elected governments.



Discuss the procedures to decide the disputes arising out of the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What are the grounds on which the election of any returned candidate may be declared void ? What remedy is available to the aggrieved party against the decision? Refer to the case laws.(UPSC 2022) (200 WORDS, 10 MARKS)