The ongoing political crisis in Maharashtra after a rebellion led by Shiv Sena leader Eknath Shinde against the Uddhav Thackeray government has put the spotlight on the anti-defection law.
As things stand, three more Shiv Sena MLAs (members of the legislative assembly) left Mumbai on Thursday to join Shinde in Guwahati, taking the number of claimed lawmakers supporting him to 40 out of the 55 that the party has in the House.
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Shinde would need just 36 MLAs to go along with him if he wants to split the Shiv Sena without being disqualified (cease to be a member of the House) under the anti-defection law. As per the rules, if the rebel group wants to merge with the Bharatiya Janata Party (BJP), at least 37 MLAs (two-thirds of Shiv Sena’s 55) have to come together to ensure they do not face disqualification.
Here is a primer on the anti-defection law and how it will likely play out in Maharashtra:
What is the anti-defection law?
The Tenth Schedule of the Constitution, popularly known as the anti-defection law, was inserted in the charter in 1985 to punish individual lawmakers for switching parties. The law lays down the process by which individual lawmakers, in Parliament and state assemblies, can be disqualified on grounds of defection by the presiding officer of a legislature based on a petition by any other member of the House.
An MLA or a member of Parliament (MP) is deemed to have defected if he either voluntarily gives up membership of his party or disobeys the directives of the party leadership during voting in the House.
The two-thirds rule exception
There are exceptions for politicians to switch parties without the risk of disqualification. Changes in affiliation are allowed only if a party merges as a whole with another party provided that at least two-thirds of its lawmakers are in favour of the merger.
In the case of the present crisis in Maharashtra, Shinde would need 36 MLAs to go along with him if he wants to split the Shiv Sena and join the BJP, as is being speculated, without attracting disqualification under the anti-defection law. Shinde has asked Thackeray to break the existing alliance with the Congress and the Nationalist Congress Party (NCP), and ally with the BJP instead.
In 2019 in Goa, for example, 10 of the 15 Congress MLAs merged their legislature party with the BJP. In Rajasthan too, all six Bahujan Samaj Party (BSP) MLAs joined the Congress in the same year. In another case, over two-thirds of Congress MLAs joined Mamata Banerjee’s Trinamool Congress in Meghalaya in 2021.
How is a decision taken?
Usually, there are two ways that the anti-defection law comes into play. Any member of the House (the Maharashtra assembly in the present case) can petition the speaker saying that some lawmakers have defected from their party and seeking their disqualification.
Since the position of the speaker of the Maharashtra assembly is currently vacant, deputy speaker Narhari Zirwal, a leader of the NCP, will implement the rules under the anti-defection law.
In another scenario, Shinde and his MLAs can also write to the deputy speaker claiming that the group represents two-thirds of the party and seek protection from the anti-defection law. The deputy speaker will, in either case, hear both parties.
The law doesn’t provide a time frame for a disqualification decision to be taken. In 2020, however, the Supreme Court prescribed a maximum of three months for a presiding officer to decide on an anti-defection law petition.
In the scenario of Shinde, and all the Shiv Sena MLAs (less than 36) that he claims are with him, being disqualified, the strength of the House will be reduced from the present 287, and so will the halfway mark. The MVA numbers too would go down from the present 152. In that case, the BJP might demand a confidence motion in the house prompting the two-and-a-half-year-old MVA government to prove the majority. Here independents and legislators from small parties will hold the key.
Demands to strengthen the law
There have been demands to scrap the anti-defection law as it stands, saying it fails in its intent. In January, BSP chief Mayawati called for a more stringent law in the midst of a raft of politicians switching parties ahead of the Uttar Pradesh assembly election.
Many expert committees have in the past have recommended that rather than the presiding officer, who is usually a member of the ruling party, the decision to disqualify a defector should be made by the President (in the case of MPs) or the governor (in the case of MLAs) on the advice of the Election Commission of India.
“Of course, the law needs improvement. For example, when a number of MLAs of a particular party merge with another party, how is it valid unless the national leadership of both parties decide to merge?” PDT Achary, former secretary-general of the Lok Sabha, told Moneycontrol recently.
The law doesn’t clarify that, he said.
The court interventions
There are some instances where courts have intervened in defection matters. In 1992, a five-judge constitutional bench of the Supreme Court said that the anti-defection law proceedings before the speaker are akin to a tribunal and, thus, can be placed under judicial review.
In January 2020, the Supreme Court asked Parliament to amend the Constitution to strip legislative assembly speakers of their exclusive power to decide whether legislators should be disqualified or not under the anti-defection law.In March 2020, the Supreme Court removed Manipur minister Thounaojam Shyamkumar Singh, against whom disqualification petitions were pending before the speaker since 2017, from the state cabinet and restrained him from entering the legislative assembly till further orders.