Anti-defection laws vis-a-vis Maharashtra political crisis

The "Anti-defection law" has received attention as a result of the political crisis in Maharashtra. Before understanding the meaning of this term, first, we should look into what led to the crisis.

Maharashtra state legislative assembly has 288 seats and for a party to win be majority it must secure at least 145 seats. In the 2019 elections BJP led by Fadnavis won 105 seats, Shiv Sena led by Uddhav Thackeray won 56 seats, NCP led by Sharad Pawar won 54 seats and Congress won 44 seats. Nobody had the majority so firstly Shiv Sena tried to have an allied government with BJP but due to their disagreement regarding having the CM from each party for 2.5 years, the coalition didn’t work. Afterwards, BJP approached NCP for the alliance but couldn’t form a majority. Finally, Shiv Sena, NCP, and Congress allied to have the majority and formed the government known as Maha Vikas Aghadi in Maharashtra by having Uddhav Thackeray as CM.

But in recent times there were clashes between the Shiv Sena party which were clearly seen during the Maharashtra legislative council election of June 2022. The aligned government expected to receive 6 out of 10 votes, instead, they received 5 and the rest 5 were received by the BJP party, implying cross-voting by the members of Shiv Sena. Later Eknath Shinde went to Surat, Gujrat, and then to Guwahati followed by other MLA rebels.

The action of disagreement by certain MLAs gave attention to the 10th schedule of the constitution. It enlists defect as if a political representative of one party after being elected either voluntarily gives his party membership or fails to participate in a crucial vote. And such legislators could be disqualified for the remaining term.

There is an exception to this, but what we all are hearing as an exception nowadays is that if 2/3rd of the MLAs i.e., 37 MLAs are with the majority of leaving the party then no action of defection could be taken on them. What needs to be focussed on is that this exception has no recognition in the law, the 10th schedule doesn’t recognize such an exception.

This exception has been omitted after the 91st amendment of 2003. Basically, this provision as made to avoid the hopping of MLAs from one party to another.

However, the exception which still prevails is not been focussed on, so we should bring that into the picture. A member of a House shall not be disqualified where his original political party merges with another political party. So, in the current situation if Shiv Sena merges with another party with the support of a 2/3rd majority of the MLAs then they would be exempted from such defection and the other 1/3rd won’t be disqualified.

The schedule mentions about voluntarily giving up the membership. But what actions involve this voluntarily giving up? Supreme Court has explained in the judgment of the case, Ravi S. Naik vs Union Of India on 9 February 1994. It was held that in absence of a formal resignation the inference could be drawn from the conduct of the party member, whether he has given up the membership voluntarily or not.

And this voluntary action was seen through the letter given by the rebel MLAs to the deputy speaker of the Maharashtra Legislative Assembly, Mr. Narhari Sitaram Zirwal stating that they identify Shinde as their leader.

But the deputy speaker on June 25th issued disqualification notices to 16 MLAs including Shinde and Shinde in response to it filed a writ petition with Supreme Court challenging the notices as those were passed during a no-confidence motion and the speaker can’t issue such
notices during a no-confidence motion and the petition further stays that those notices were politically motivated. Though the Shiv Sena has made the government with BJP, with 2/3rd majority of the MLAs and Shinde as the CM, the next hearing of the defection notice is to be held on 11th July.

As mentioned above the anti-defection law has been made to stop the hopping of MLAs from one party to another. The MLAs were subject to the defection action till they didn’t align with BJP, but as of now they have joined BJP and formed the government. SO, they can’t be issued notices of defection. 

Here, the reason given by Shiv Sena to form their government and get separate from Uddhav Thackeray was that the party from the time of Babasaheb Thackeray used to follow Hindu ideology but the present government including Uddhav Thackeray didn’t support that ideology rather used to go against it.

Shinde and other rebel MLAs made it very clear that they want to promote their Hindu ideology in Maharashtra by aligning with BJP. It was expected that BJP leader Fadnavis would become the chief minister, but not as expected Shiv Sena leader became the CM. If BJP would have agreed earlier only to appoint CM for 2.5 years each from both the party, then no such the situation would have occurred but even after this coalition BJP MLA is not elected as the CM, but you never what next would be coming by the parties.

Anjali Sharma is a law student at Bharati Vidyapeeth University