The erosion of Schedule X

The Speaker of the Maharashtra Assembly, Rahul Narwekar, had to decide whether a faction of Shiv Sena’s Legislative Assembly members, led by Eknath Shinde, voluntarily relinquished their party membership and subsequently voted against the party whip, the Shiv Sena, resulting in disqualification. The Tenth Schedule (Schedule X) of the Constitution raises concerns by vesting adjudication authority in the Speaker, a political appointee.

The judgement rested on the Shinde group’s majority support within Shiv Sena MLAs. After claiming that neither the Party Constitution nor the 2018 leadership structure provided credible yardsticks for determining who is the true Shiv Sena party, the Speaker resorted to the parliamentary majority test.

The original Shiv Sena party filed the petition seeking disqualification of the Shinde group. When such petitions are presented, the Speaker gains the authority to determine whether the legislators have defected. The facts presented before the Speaker were that the dissident MLAs, led by Eknath Shinde, had secret meetings in another state and did not attend the crucial legislative party meetings summoned by the president of the original Shiv Sena party, Uddhav Thackeray. Following their uprising, the group of MLAs who supported Eknath Shinde, formed an alliance with the opposition party, and Eknath Shinde was sworn in as chief minister. The Speaker was asked to determine whether Eknath Shinde and his colleagues’ actions constituted voluntary resignation from Shiv Sena and led to disqualification.

Under Schedule X, a lawmaker can avoid being removed from office in two ways: First, there was a rift inside his political party, with one-third of the lawmakers creating a group and leaving the party. Second, if the legislator’s party unites with another and at least two-thirds of the members approve of the merger and the original party’s dissolution, the merger takes place. Departing lawmakers might argue that they were free from disqualification in these scenarios.

Whether a breakaway group has a majority in the parliamentary party is irrelevant if the split is not recognized under the Tenth Schedule. The anti-defection statute should disqualify the whole legislature party even if they engage in behaviour that is forbidden under Paragraph 2 of Schedule X, whether it is acting against the party whip or voluntarily resigning from membership. Since merging with another party is the primary means of defence, the tenth schedule does not acknowledge
the notion of a “legislative majority.”

The speaker is wrong in attempting to identify the true Shiv Sena section. It is important to clarify that the speaker is not required by Schedule X to make the decision on whether a group is an actual party. Only the Election Commission of India has the authority to determine this subject. Which party the lawmakers defected from, or which was their original political party, is the sole question that the Speaker must determine in some situations as a preliminary matter. An elected member of the House must be regarded as a member of the political party, if any, by which he was nominated as a candidate for election as such, according
to the explanation provided in paragraph 2(1). This
deeming clause provides unequivocal clarity on this matter. Determining which group is the true party unrelated to the anti-defection statute is not at all the Speaker’s responsibility.

It is evident from the Subhash Desai ruling that the Shiv Sena, under the leadership of Uddhav Thackeray, is the original political party capable of validly whipping all of its members. It is the party whose membership the Shinde group unilaterally renounced, making them ineligible under Tenth Schedule paragraph 2(1). The Election Commission of India is the only body that has the authority to determine whether a faction of the Shiv Sena is authentic. The speaker lacks the authority to make such a decision. It may be recalled that Parliament, in enacting the Tenth Schedule, did not view paragraph 15 of the Symbols Order as a significant element.

The Supreme Court also upheld the legislative party’s inability to choose a whip, noting that interpreting the word “political party” as the “legislature party” would render the Tenth Schedule “unworkable.” The ruling outlined the potential risks that may occur if the parliamentary party were granted the authority to choose the whip. The decision by the speaker of the Maharashtra Assembly, Rahul Narwekar, is underlying and devoid of constitutional foundations. This decision by the speaker should not be set as a precedent for any further cases of anti-defection, as it has weakened the objectives of the Tenth Schedule and anti-defection law.

(The writer is a legal researcher)