Amidst Maharashtra drama, it is over to a floor test and anti-defection law

New Delhi, Nov 24: The road ahead in Maharashtra would be an interesting one. As has been witnessed in several other states, this one too would go down to the wire and there would be plenty of legalities to be discussed and decided.

The floor test would be most crucial and the BJP would have to take one to prove its majority. The other challenge is to overcome the anti-defection law, which allows a section of the MLAs to break away and be recognised as a separate group in the legislature. The law demands that there should be at least two-third MLAs who break away.

The anti-defection law would come into play once the MLAs take oath and a Speaker is nominated.

The Speaker would be the final authority on deciding whether the law would be applicable to MLAs.

However as was seen recently in the case of Karnataka, the decision of the Speaker can be challenged in the Supreme Court.

The NCP would have to formally file a petition before the Speaker citing anti party activities by its MLAs.

What the law states:

The law was passed by Parliament in 1985. The 52nd amendment to the Constitution added the tenth schedule which laid down the process by which legislators, both in Parliament and in the assemblies can be disqualified. The law says that a legislator was deemed to have defected if he or she voluntarily resigned from the party, or disobeyed a whip. Independent members would be disqualified if they joined a political party. Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

The law further state that a party could be merged into another if at lest two-thirds of its party legislators voted for the merger.

The ground for disqualification are specified in Paragraph 2 of the 10th Schedule. A member would incur a disqualification under paragraph 2 (1) (a) when he "voluntarily gives up his membership of a party" and under 2 (1) (b) when he/she votes (or abstains from voting) contrary to the directive issued by the party.

While interpreting the phrase 'voluntarily gives up.' The Supreme Court in the Ravi Naik vs Union of India case said that, the words 'voluntarily gives up his membership' are not synonymous with 'resignation' and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party.