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Tuesday, June 28, 2022

Explained: The anti-defection law, and why Eknath Shinde could be poised to dodge it in Maharashtra

Maharashtra Shiv Sena political crisis explained: Can the rebelling Shiv Sena MLAs face proceedings under the anti-defection law, or do they have the numbers to escape this? A look at the law, and the roles the Speaker and Governor will play in such situations.

Written by Chakshu Roy | New Delhi |
Updated: June 23, 2022 10:28:42 am
Eknath Shinde in Thane. (Express Photo: Deepak Joshi, File)

The unfolding political crisis in Maharashtra has thrown the spotlight on the anti-defection law, and the roles of the Deputy Speaker and the Governor.

On Wednesday (June 22), the ruling Shiv Sena called a meeting of all its MLAs in Mumbai. Some of its legislators have aligned themselves with the party’s rebel leader Eknath Shinde and are camping in Guwahati. The party has warned its MLAs that their absence from the meeting would lead to the presumption they wanted to leave the political party. And this would therefore lead to action against them under the anti-defection law.

What is the anti-defection law, and would it 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.

But the anti-defection law does not apply if the number of MLAs who leave a political party constitute 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.

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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.

How does the two-thirds rule work in current situation in Maharashtra?

News reports indicate that 30 Shiv Sena MLAs are with Eknath Shinde. Taking this number at face value means it does not reach the two-thirds mark of the 55 MLAs the Shiv Sena has in the Maharashtra Assembly. Therefore, the protection under the anti-defection law would not be available to Shinde and his group. And it is the Assembly Speaker who decides whether an MLA has left a party or a group that constitutes two-thirds of a party.

The position of the Speaker of the Maharashtra Assembly is, however, currently vacant. The last Speaker was senior Congress leader Nana Patole who resigned from the post in 2019. Article 180(1) of the Constitution states that the Deputy Speaker performs the Speaker’s duties when the office is vacant. Since then, the Deputy Speaker, Narhari Zirwal of the NCP, has been acting as the Speaker. He has to follow the rules of the Maharashtra legislature that lays down the process under the anti-defection law.

How would a decision be taken whether the anti-defection law applies in this case?

Under the current circumstances, two ways would lead to adjudication under the law. First, any MLA of the Assembly can petition Zirwal that certain MLAs have defected from their political party. Such a petition has to be accompanied by documentary evidence. The Deputy Speaker would then forward the petition to the MLAs against whom their colleagues are making the charge of defection. The MLAs would have seven days or such time that the Deputy Speaker decides is sufficient to enable them to put across their side of the story.

At the same time, Shinde and MLAs supporting him too can write to the Deputy Speaker with evidence claiming that they represent two-thirds of the Shiv Sena strength and claim protection under the anti-defection law.

In either case, Speakers will decide the matter after hearing all parties, which could take time.

How much time does it usually take?

In recent years, one of the fastest decisions in a defection proceeding was delivered by Rajya Sabha Chairman Venkaiah Naidu. He decided on the defection of JD(U) MPs Sharad Yadav and Ali Anwar in three months. But in state legislatures, defection petitions have taken much longer.

For example, in 2020, the Supreme Court used its extraordinary power to remove a Manipur minister from his position. The petition against the Congress legislator, who had defected to the BJP, had been pending for three years.

But whether the Speaker decides quickly or takes time, the Speaker is usually challenged in court, which further delays the decision. For example, the defection cases involving West Bengal MLA Mukul Roy and Jharkhand MLA Babu Lal Marandi are embroiled in judicial proceedings. Both Venkaiah Naidu and the Supreme Court have recommended that Speakers decide on defection cases in three months.

What is the Governor’s role?

The Governor has a crucial role when there is political instability in a state. Before 1994, Governors were quick to dismiss a state government, charging that it did not have a majority in the state legislature and recommending the imposition of the President’s rule in the state. But the Supreme Court ended this practice with its judgment in the S R Bommai case in 1994. In this landmark case, the court ruled that the place for deciding whether a government has lost its majority was in the legislature. Maharashtra Governor Bhagat Singh Koshyari can ask Chief Minister Uddhav Thackeray to convene the Assembly and prove his majority on the floor of the House.

One question being discussed is whether the political crisis in Maharashtra could lead to the dissolution of the Assembly. The Chief Minister of a state can recommend to the Governor to dissolve the legislature before the end of its five-year term and call for elections. Here, the Governor’s discretion comes into play. The Governor may choose not to dissolve the legislature if he or she believes that the recommendation is coming from a council of ministers who do not enjoy the confidence of the state legislature.

Chakshu Roy is Head of Outreach at PRS Legislative Research

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