The Tenth Schedule was designed to curb defections but has repeatedly failed to prevent legislators from switching factions. Examine the structural loopholes in the anti-defection law with reference to recent developments in Maharashtra.

Q. The Tenth Schedule was designed to curb defections but has repeatedly failed to prevent legislators from switching factions. Examine the structural loopholes in the anti-defection law with reference to recent developments in Maharashtra. (15 marks, 250-350 words)

The Tenth Schedule, inserted by the 52nd Constitutional Amendment Act, 1985, penalises legislators who voluntarily give up party membership or defy the whip [1]. Four decades on, it restrains individual defection but not organised, faction-level realignment — a gap Maharashtra's recurring Council episodes expose sharply.

Loopholes in design - "Original party" ambiguity: a member elected before a party's vertical split can claim continued membership of the undivided party, so the test of voluntarily giving up membership is never triggered [1][4]. - Bulk-exit exception: the two-thirds merger clause shields collective defection; the one-third split clause was deleted by the 91st Amendment, 2003, yet group switching persists in new forms [1][2]. - Parallel tracks: the Election Commission decides party name and symbol under the Symbols Order, 1968; that ruling neither settles nor triggers disqualification, letting the two processes diverge [3].

Loopholes in enforcement - Presiding Officer as adjudicator: a partisan office deciding defection cases, with proceedings sometimes pending until the legislature's term expired [2]. - No statutory deadline: delay makes disqualification infructuous while the defector enjoys office [2]. - Office as inducement: post-switch elevation rewards the very conduct the law targets [4].

Maharashtra as the test case - After the 2022 Shiv Sena split, the ECI allotted the party name and "bow and arrow" symbol to the Shinde faction, while legislator-disqualification questions remained unsettled [3][4]. - Neelam Gorhe (2023) and Sachin Ahir (2026) — both Shiv Sena MLCs — crossed to the Shinde Sena and held the Deputy Chairpersonship of the Legislative Council, each pleading no defection since they never left the "original" party [4]. - Repetition in the same House signals a structural gap, not an aberration.

The law's letter is intact; its spirit leaks through split-and-symbol ambiguity and adjudicatory delay. Shifting disqualification to an independent tribunal, fixing a strict decision timeline, and confining the whip to confidence and money matters [2] would restore the Tenth Schedule's founding purpose — legislative integrity and stable, accountable government.

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Sources: 1. Explained: In Maharashtra drama, the key legal provision — anti-defection law, PRS Legislative Research — Tenth Schedule via 52nd Amendment, 1985; grounds of disqualification; one-third split and two-thirds merger provisions 2. The Anti-Defection Law That Does Not Aid Stability, PRS Legislative Research — Presiding Officer as adjudicator, delays until expiry of term, deletion of split clause by the 91st Amendment (2003), independent tribunal and whip-restriction reforms 3. Dispute and Merger, Election Commission of India — ECI's power over party name/symbol disputes under the Election Symbols (Reservation and Allotment) Order, 1968, including the Shiv Sena dispute case 4. "A legislative tangle in Maharashtra", The Hindu (news report; URL not verifiable at time of writing) — Sachin Ahir's June–July 2026 switch and election as Deputy Chairperson, the 2023 Neelam Gorhe precedent, and the "original party" defence