DODGED OR SUMMONED THE ANTI-DEFECTION LAW?

Maharashtra has been facing a political imbroglio since last week after Eknath Shinde went to Surat in Gujarat with some of the rebels. The number in the camp has now swelled to 39 - more than the 37 required to break away from the 55-strong Shiv Sena in the state assembly without attraction censure under the anti-defection law.

Moreover, Shiv Sena legislature party leader Ajay Choudhary has initiated disqualification proceedings against 16 legislators who joined the rival camp, and 14 legislators led by rebel Sena leader Eknath Shinde served a no-confidence notice against deputy speaker Narhari Zirwal. According to reports, at the legislature secretariat, the process for disqualification had already begun.

Currently, the moot question is what are the options before Shinde. Since the 10th schedule of the anti-defection law amended in 2003 does not recognize a split, there are limited options left. Till 2003, if two-thirds of members left a party, they could still form a separate group and not attract the anti-defection law. But since there was no end to defections, the law was further tightened as under the 91st Amendment to the Constitution in 2003, the exemption from disqualification if one-third of the members form a separate group (the rule prior to the amendment) was removed. "Even if you quit the party with two-third members, you still cannot escape disqualification," explained ex-advocate general Ravindra Kadam.

The speaker or deputy speaker (under Article 180 of the Constitution, the deputy speaker has the powers of the speaker when the latter's position is vacant.) rules on various issues, including recognizing and appointing floor leaders and disqualification of legislators. In this case, the deputy speaker was supposed to rule on a Sena plea to disqualify 16 MLAS-Shinde and the ones led by him-under provisions of the anti-defection law, until Shinde and rebels have challenged the position of the deputy speaker due to the reduced minority of the party.

EKNATH SHINDE MOVES THE APEX COURT

The Supreme Court on Monday heard petitions moved by rebel Shiv Sena MLAs led by Eknath Shinde on Sunday, challenging the disqualification notices sent by Maharashtra deputy speaker Narhari Zirwal to them on June 21, saying that they represented a misuse of the anti-defection law by a vengeful MVA coalition.

Shinde in his writ petition said that the deputy speaker has lost his position as the MVA government has been reduced to a minority and in such a situation, he has no authority to invoke provisions of the Members of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986, and sent notices to him and 15 other MLAs, which form part of the breakaway group of 38 Sena legislators.

The disqualification notices are classic examples of the deputy speaker acting hand-in-glove with the MVA government in an attempt to hastily disqualify the petitioner along with his supporters, bypassing all cannons of law, the leader of the rebel Sena MLAs alleged.

WILL ANTI-DEFECTION LAW APPLY TO SHIV SENA REBELS?

The anti-defection law provides for the disqualification of MLAs who, after being elected on the ticket of a political party, “voluntarily give up their party membership”. The Supreme Court has interpreted the term broadly and ruled an MLA’s conduct can indicate whether they have left their party. The law is also applicable to independent MLAs. They are prohibited from joining a political party, and in case they do so, they can also lose their membership in the legislature.

Generally, the anti-defection law does not apply if the number of MLAs who leave a political party constitutes two-thirds of the party’s strength in the legislature. These MLAs can merge with another party or become a separate group in the legislature. For example, last year in Meghalaya, 12 of 17 Congress MLAs joined the All-India Trinamool Congress. In 2019, all six MLAs of the Bahujan Samaj Party in Rajasthan joined the Congress. The same year, four out of six Telgu Desam Rajya Sabha MPs joined the BJP.

In Girish Chodankar v. Speaker (2022) the High Court of Bombay in the case of the Goa Legislative Assembly held that 10 Congress MLAs and two MGP MLAs, who had defected to the BJP in 2019, are exempted from disqualification and held that a merger of this group of Congress MLAs is “deemed to be a merger” of the original political party with the BJP.

In Rajendra Singh Rana v. Swami Prasad Maurya (2007), a Constitution Bench of the Supreme Court interpreted the term “voluntarily giving up membership of a political party”, and held that “a person may be said to have voluntarily given up membership of an original party even though he or she has not tendered resignation from membership of the party” and that an inference can be drawn from the conduct of the member.

CONCLUSION

The ongoing political chaos is not only based on differences in the ideology of both the groups but also due to ignition fueled by “powerful national parties”. Politics is a playground of self-interest and changing stances, and unfortunately, this particular chaos has not occurred for the first time, it has been existing in world politics since time immemorial.

The political crisis in Maharashtra has brought the focus back on the anti-defection law. By all accounts, the law has failed to shore up the stability of elected governments. Not only have many governments fallen due to defections in recent times, but the defectors have not suffered any cautionary consequences. The legislature will have to look into the loopholes of the law to make sure that the valuable votes of citizens are not disrespected due to defections amongst political parties.