LEGAL CORNER- “IS ANTI-DEFECTION LAW IS DEFECTIVE”

James August 5, 2022

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Do the Shiv Sena MLAs who are revolting have enough numbers to avoid prosecution under the anti-defection law? An examination of the law and the functions of the Speaker and Governor in such circumstances

The anti-defection law, as well as the functions of the Deputy Speaker and the Governor, have come under scrutiny as a result of the developing political crisis in Maharashtra.

The ruling Shiv Sena convened a meeting of all of its MLAs in Mumbai on Wednesday, June 22. Some of its lawmakers are camped out in Guwahati and have sided with the party’s dissident leader Eknath Shinde. The party has warned its MLAs that skipping the meeting will raise suspicions that they seek to defect from the political party. As a result, they would be subject to punishment under the anti-defection law.

After being elected on the platform of a political party, MLAs who “voluntarily give up their party membership” are disqualified according to the anti-defection law. The Supreme Court broadened its interpretation of the term and held that an MLA’s actions can reveal whether they have abandoned their party. Independent MLAs must also abide by the law. They are not allowed to join political parties, and if they do, they risk losing their seats in the legislature. However, if two- thirds or more of a political party’s legislators depart, the anti-defection law is not applicable. These MLAs have the option of joining another party or forming their group in the legislature.

According to news reports, Eknath Shinde is supported by 30 Shiv Sena MLAs. If this figure is taken at face value, it falls short of the two-thirds threshold of the 55 MLAs the Shiv Sena now holds in the Maharashtra Assembly. Shinde and his group would not be eligible for the protection provided by the anti-defection law as a result. Additionally, the Assembly Speaker is the one who determines whether an MLA has abandoned a party or a faction that makes up two-thirds of a party. However, the Maharashtra Assembly’s Speaker seat is now open. According to Article 180(1) of the Constitution, the Deputy Speaker fills in for the Speaker when that position is vacant. Since that time, the NCP’s Narhari Zirwal, the Deputy Speaker, has been serving in that capacity. Under the anti-defection statute, he must obey the rules set forth by the Maharashtra legislature.

There are currently two paths that would result in legal adjudication. First, every MLA in the Assembly has the right to petition Zirwal regarding MLAs who have left their political party.

Documentary proof must be submitted with such a petition. The petition would then be forwarded by the Deputy Speaker to the MLAs that their colleagues are accusing of defecting. The MLAs would have seven days—or whatever amount of time the Deputy Speaker deems necessary—to present their argument.

At the same time, Mr Shinde and the MLAs who back him can write to the Deputy Speaker and provide documentation to support their claims that they represent two-thirds of the Shiv Sena’s membership and are therefore protected by the anti-defection law. Speakers will decide in either scenario after hearing from all parties, which could take some time.

When there is political unrest in a state, the governor plays a critical role. Before 1994, governors would quickly dissolve a state government because it lacked a majority in the state legislature and would advise imposing the president’s administration. The Supreme court issued a direction for convening a floor test in Shivraj Singh Chouhan & Ors. bearing in mind the principles which have been enunciated in the decision of the nine-Judge Bench of this Court in S R Bommai v Union of India [(1994) 3 SCC 1)] and in the decision of the Constitution Bench in Nabam Rebia v Deputy Speaker, Arunachal Pradesh Legislative Assembly [(2016) 8 SCC 1]. The legislature should be the one to decide whether a government has lost its majority, the court ruled in this significant decision. Bhagat Singh Koshyari, the governor of Maharashtra, may direct Chief Minister Uddhav Thackeray to convene the Assembly and show 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. If the Governor feels that the suggestion comes from a council of ministers that lacks the support of the state legislature, he or she may decide not to dissolve the legislature.