Shiv Sena (UBT) MPs’ likely switch: Can they escape anti-defection law, avoid disqualification?

The anti-defection law grants certain defences that members may invoke to shield themselves from disqualification and consequences “ensure that a member of the House is unable to reap the fruits of defection within the House”.

Under Paragraph 2(1)(b), a member is protected if the political party condones, within 15 days, his action of voting or abstaining contrary to its directions. A member may also avoid disqualification if prior permission was obtained from the party.

Paragraph 4 of the Tenth Schedule provides that disqualification will not apply if the original political party merges with another party, provided not less than two-thirds of the members of the legislature party agree to the merger. Members of the original political party who do not accept such a merger and opt to function as a separate group may also be protected from disqualification.

Before 2003, Paragraph 3 — which allowed a split in a party if a minimum one-third of its legislators broke away — provided protection from facing disqualification. This provision, however, was removed by the 91st Amendment to the Constitution, which came into effect on January 1, 2004. Other limited exemptions under the Tenth Schedule include those available to Speakers and Deputy Speakers under specified conditions.

How courts have ruled

Among various court rulings, in Girish Chodankar v. The Speaker, Goa Legislative Assembly (2022), the Bombay High Court at Goa bench led by Justice Manish Pitale upheld the Speaker’s decision refusing to disqualify 10 of 15 Congress MLAs and two Maharashtrawadi Gomantak Party MLAs who joined the BJP in 2019, holding that they were protected under Paragraph 4 because two-thirds of the legislature parties had agreed to the merger. The court said that a merger of this group of Congress MLAs was “deemed to be a merger” of the original political party with the BJP.

In 2007, a Constitution Bench of the Supreme Court in Rajendra Singh Rana v. Swami Prasad Maurya (2007) interpreted 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 clarified the conclusion can be based on conduct of the member.

The 2023 Shiv Sena judgment

In Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023), the Constitution Bench of the Supreme Court led by then Chief Justice of India D Y Chandrachud directed the Maharashtra Assembly Speaker to first determine which of the factions constituted the “real political party” in the Shiv Sena dispute (Shinde broke away from the party in 2022 and claimed his faction was the “real Shiv Sena”). This was to be done by examining the party constitution and rules specifying leadership structure rather than merely legislative strength, before taking a call on disqualification proceedings against rival MLAs.

The court emphasised that following the deletion of Paragraph 3, “a split is no longer a defence” under the Tenth Schedule. It further held that members of multiple factions may continue in the House only if the requirements of Paragraph 4 relating to merger are satisfied.
While the case was not about the merger as the Shinde faction claimed it to be a “real Shiv Sena”, the Constitution Bench noted that the Speaker must not decide which faction constitutes the political party on the “blind appreciation” of which group had a majority in the Assembly.

Shiv Sena (UBT) MP Omprakash Raje Nimbalkar in Mumbai on June 16, 2026. Nimbalkar was one of six party MPs who did not attend the parliamentary party meeting on June 18. Photo: PTI

“This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue,” the court emphasised. The Assembly Speaker declared the Shinde faction as “real Shiv Sena” in January 2024, which is under challenge. The Shiv Sena (UBT) has largely relied on the 2023 Supreme Court ruling to block the rebels’ move.

Sena UBT’s preemptive measure

Shiv Sena (UBT) MP Arvind Sawant, who is also leader of the party in Lok Sabha, on Wednesday wrote to Speaker Om Birla asking him not to grant separate recognition to rebel MPs, arguing the Constitution no longer recognises a “split”. He said the Shiv Sena (UBT) remains the single recognised party through its authorised leader and whip, urging no recognition be given to any “purported faction” without the party submitting its views. Sawant cited the 2023 Subhash Desai judgment.

“The judgment unequivocally affirms the primacy of the political party over the legislature party,” he added. Sena (UBT) issued a whip for a Delhi parliamentary party meeting Thursday, which was attended by three MPs — Sawant, Anil Desai, and Rajabhau Waje — while six remained absent.

Will it attract disqualification?

Senior Advocate Shrihari Aney, former Maharashtra Advocate General (AG), told The Indian Express that the Tenth Schedule’s interpretation is debatable but, under prevailing law, rebel MPs can avoid anti-defection disqualification if they merge with or join another party and constitute two-thirds of the legislative party.

“If they do not join any party, which is in existence in the House, then there is anti-defection staring at them,” he said. Relying on the Girish Chodankar judgment, he added that while the rebel MPs can be protected if they declare a merger in another party or join it as a group.

According to Aney, while they have an option of “separately maintaining integrity” by forming and registering a new political party, the same seemed “difficult” considering the time and resources needed for the same. “Therefore, trying to set up an independent party will expose them to the risk of disqualification, as the process of disqualification will continue and will not wait for the formation of their party,” he said.

Aney said that the moment the rebel MPs go with another party, or even otherwise, Shiv Sena (UBT) is bound to give them notices for disobeying the whip and expel them.

“However, mere expulsion does not work as the rebel MPs would still continue to hold their seats. So, the Shiv Sena (UBT) will have to make a complaint to the Lok Sabha Speaker to disqualify the concerned MPs,” the former AG said. In such disqualification proceedings, as the law stands today, he said that the rebel MPs would be protected by the Girish Chodankar judgment, with which the Supreme Court has not yet interfered with.

“To overcome disqualification action, they will have to fulfil criteria under two clauses of Paragraph 4 in the Tenth Schedule, which the Goa bench interpreted. That is the only way they can save themselves, otherwise the disqualification proceeding will find them guilty,” he said.

On the other hand, Senior Advocate Devdatt Kamat, who appeared for the Shiv Sena (UBT) before the Supreme Court, told The Indian Express that the “foundational requirement for a merger to take place is that the political party has to merge”.

“The news reports stated that the six MPs are planning to merge in Shinde Sena. But the six MPs cannot decide on a merger. It has to be done at the political party level, not at the legislators’ level, as they are not the political party and they are merely a branch of the main tree. As per Tenth Schedule, unless the original political party merges, the concept of merger is totally illegal and unconstitutional,” Kamat, who has earlier served as Additional Advocate General of Karnataka, said.

“The issue is before the Supreme Court and it will have to take a call as this is happening across the states, including in the case of TMC (Trinamool Congress) and AAP (Aam Aadmi Party),” he added.

Kamat also said that the interpretation in the Goa bench judgment was “completely wrong” and the challenge is pending before the Supreme Court.

“Unfortunately, the Supreme Court has not decided many constitutional questions; that is why these issues keep coming up. Moreover, the Constitution Bench in its 2023 Shiv Sena judgment has clarified the situation, stating that the legislature party does not have an independent existence. Therefore, the value of the Goa bench judgement is ‘very doubtful’, and the rebel MPs will attract disqualification,” he added.