Maharashtra crisis Shiv Sena: What is the anti-defection law?

The course political crisis in Maharashtra shed light on the anti-defection law and the roles of the vice president and governor.

Wednesday, June 22, the the ruling Shiv Sena called a meeting of all its MPs in Mumbai. Some of his lawmakers have aligned themselves with the party’s rebel leader Eknath Shinde and are campsite in Guwahati. The party warned its deputies that their absence from the meeting would give the impression that they wanted to leave the political party. And that would therefore lead to prosecution against them under the anti-defection law.

What is the anti-defection law, and would it apply to Sena rebels?

The anti-defection law provides for the disqualification of deputies who, after being elected on the list of a political party, “voluntarily renounce their membership of a party”. The Supreme Court interpreted the term broadly and ruled that an MP’s conduct can indicate whether he has left his party. The law also applies to independent deputies. They are prohibited from joining any political party, and if they do, they can also lose their membership in the legislature.

But the anti-defection law does not apply if the number of MPs leaving 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 Legislative Assembly.

For example, last year in Meghalaya, 12 out of 17 Congress MPs joined the All India Trinamool Congress. In 2019, all six MPs from the Bahujan Samaj Party of Rajasthan joined the Congress. In the same year, four out of six Telgu Desam Rajya Sabha MPs joined the BJP.

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

Reports indicate that 30 Shiv Sena deputies are with Eknath Shinde. Taking that number at face value means it falls short of the two-thirds mark of the Shiv Sena’s 55 MPs in the Maharashtra Assembly. Therefore, protection under the Anti-Defection Act would not be available to Shinde and his group. And it is the President of the Assembly who decides whether a deputy has left a party or a group which constitutes two-thirds of a party.

The post of Speaker of the Maharashtra Assembly, however, is currently vacant. The last president was Chief Congresswoman Nana Patole, who resigned from her post in 2019. Article 180(1) of the Constitution states that the vice president shall serve as president when the office is vacant. Since then, the vice-president, Narhari Zirwal of the NCP, has served as president. He must follow the rules of the Maharashtra legislature which establishes the process under the anti-defection law.

How to decide if the anti-defection law applies in this case?

In the present circumstances, two paths would lead to a judgment under the law. First, any member of the Assembly can ask Zirwal that certain members have left their political party. Such a request must be accompanied by supporting documents. The Deputy Speaker will then forward the petition to the MPs against whom their colleagues are making the charge of defection. MPs would have seven days or such time as the Vice President deems sufficient to allow them to get their side of the story across.

At the same time, Shinde and MPs who support him can also write to the vice president with evidence claiming they make up two-thirds of the Shiv Sena’s workforce and seek protection under the anti-defection law.

In either case, the chairs will decide the issue after hearing from all parties, which could take time.

How long does it usually take?

In recent years, one of the quickest decisions in defection proceedings was made by Rajya Sabha President Venkaiah Naidu. It decided on the defection of JD(U) MKs Sharad Yadav and Ali Anwar within 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 office. The petition against the Congress lawmaker, who had defected to the BJP, had been pending for three years.

But whether the President decides quickly or takes time, he is usually challenged in court, further delaying the decision. For example, the defection cases involving West Bengal MP Mukul Roy and Jharkhand MP Babu Lal Marandi are the subject of court proceedings. Venkaiah Naidu and the Supreme Court have recommended that presidents decide on defection cases within three months.

What is the role of the Governor?

The governor has a crucial role in times of political instability in a state. Prior to 1994, governors would not hesitate to dismiss a state government, accusing it of not having a majority in the state legislature and recommending the imposition of presidential power in the state. But the Supreme Court put an end to this practice with its judgment in the SR Bommai case in 1994. In this landmark case, the Court ruled that the place to decide whether a government 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.

A question under discussion is whether the political crisis in Maharashtra could lead to the dissolution of the Assembly. A state’s chief minister can recommend to the governor to dissolve the legislature before the end of its five-year term and call an election. Here, the governor’s discretion comes into play. The governor can choose not to dissolve the legislature if he feels that the recommendation comes from a cabinet that does not enjoy the confidence of the state legislature.

Chakshu Roy is Head of Outreach at PRS Legislative Research

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