On the Maharashtra Assembly Defection Case – A Speaker’s flawed move to determine the real faction

Source: This post on the Maharashtra Assembly Defection Case has been created based on the article “A Speaker’s flawed move to determine the real faction” published in “The Hindu” on 15^th January 2024.

UPSC Syllabus Topic: GS Paper 2 Indian Polity – Salient features of the Representation of People’s Act.

News: The article discusses the recent Maharashtra Assembly Speaker’s ruling in the defection case related to Shiv Sena factions.

A detailed article on Anti-Defection Law can be read here.

Background:

Recently, Speaker of the Maharashtra Assembly was required to decide on the disqualification of the breakaway group of Shiv Sena MLAs under Eknath Shinde.

Voluntarily giving up the membership of their original party or voting against the whip of the party are treated as defection and liable to be disqualified under the anti-defection law contained in the Tenth Schedule of the Constitution.

For more on this issue, read here.

Why is the Maharashtra Speaker’s decision wrong according to the author? 

1) In Rajendra Singh Rana vs Swami Prasad Maurya (2007), the Supreme Court had said that when members of the ruling party join the Opposition party and try to form the government, they have voluntarily given up the membership of their original party.
Thus, the consequence of the conduct of the Shinde group of MLAs is disqualification.

2) In 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. But the Tenth Schedule does not recognise a split now. So, a split in a party no longer exempts the legislators from disqualification.

3) It is not at all the function of the Speaker to determine which faction is the real party. This question is decided only by the Election Commission of India.  This decision of the Speaker was beyond his jurisdiction.

Question for practice:

“If decisions on defection disputes are in the hands of Speakers instead of an independent authority, political considerations will keep leading to unfair rulings.” Discuss.