The Maharashtra political crisis and the applicability of the anti-defection law

The law allows a party to merge with or into another provided in case at least two-thirds of its legislators are in favour of the merger.

New Delhi, Jun 22: Maharashtra leader, Eknath Shinde who has gone to Assam's Guwahati from Gujarat claimed that he has 40 MLAs with him. While there is speculation that he may float his own party, Shinde has said, we have not left Balasaheb's Shiv Sena and will not leave it. We have been following his Hindutva and will carry it further.

With the crisis blowing out of proportion for the Shiv Sena the next question that would arise is the applicability of the anti-defection law. The Tenth Schedule, technicalities and also the Anti Defection Law would be cited during the crisis. Ultimately the matter could also end up in the Supreme Court. Now, let us take a look at what the Anti Defection Law is and when does it come into play and how it is also implemented.

In the year 1985, the Tenth Schedule was introduced in the Constitution, by which legislators could be disqualified on grounds of defection. A member is deemed to be defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party on a vote.A member defying the whip of his party may be disqualified from the membership of the House.

The law allows a party to merge with or into another provided in case at least two-thirds of its legislators are in favour of the merger. A similar scenario was witnessed in Goa, when 10 Congress MLAs merged with the BJP, while the remaining 5 stayed away. They did not attract the provisions of the law.

While interpreting the law, the Supreme Court said that in the absence of a formal resignation by the member giving up the membership, the same could be inferred by his conduct.

While the law initially said that the decision of the Speaker or presiding officer is not subject to judicial review, the Supreme Court had in 1992 had allowed appeals against the presiding officer. The court said that such decisions could be reviewed by both the High Court and the Supreme Court.

In the Karnataka scenario, the Speaker had been accused of sitting over the matter and not deciding on the resignation of the rebel MLAs. The Supreme Court too had said that there is no time limit for the Speaker to decide. It however said that the rebels cannot be compelled to go to the assembly.

The law too does not specify a time limit. This means that the courts can intervene with the decision of the Speaker only once he has taken a decision.

In 2003, there was an amendment to the law. When first enacted there was a provision which said if there occurs a split in the original political party and as a result of which one-third of the legislators of the party forms a separate group, they shall not be disqualified. This led to large scale defections and hence this provision was deleted.

Provided in the 4th Paragraph of the 10th Schedule, the provision can now be invoked for protection from disqualification if there is a merger.