Maharashtra Politics: If rebel MLAs leave Shiv Sena, will the membership also go? Understand the nuances of anti-defection law

New Delhi/Mumbai: There has been a storm in the politics of Maharashtra overnight. On Tuesday morning, news came that senior Shiv Sena leader and cabinet minister in Maharashtra government Eknath Shinde could not be contacted. Soon after, it was learned that under the leadership of Shinde, more than two dozen MLAs of Shiv Sena are present in Surat, Gujarat. A big crisis has come on the Maha Vikas Aghadi government of the state. It is claimed that Shiv Sena has about 25 MLAs with Shinde. Apart from NCP and Congress, small parties and some independent MLAs have also been told to reach Surat. Here BJP has also started setting pieces. Former CM Devendra Fadnavis left for Delhi from Mumbai in the morning. Now the question is, will these MLAs switch sides and join the BJP camp? If this happens, then Shiv Sena can go to the Speaker of the Assembly and demand that these MLAs be disqualified under the Anti-Defection Act. Let us understand what the anti-defection law is and under what circumstances it applies.

What is Anti-defection law?
After the 1967 general elections, the governments of many states fell due to the movement of MLAs. Anti-defection law was introduced to prevent this from happening again and again. Parliament included it in the Tenth Schedule of the Constitution in 1985. Through the anti-defection law, those MLAs/MPs are punished who leave one party and go to another. In this, a group of MPs/MLAs is allowed to join (merge) another party without coming under the penalty of defection. This law is incapable of punishing those political parties who instigate or allow MLAs/MPs to change party.

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When does defection happen? Who decides?
There are three conditions under the law. In any of these situations, a breach of law can be costly to the member. The presiding officers (speaker, chairman) of the legislature decide such matters. According to the Supreme Court, their decisions can be challenged in higher courts.

  1. A person contesting an election on a party ticket ‘voluntarily’ renounces membership of that party or votes against the party’s will in the legislature. The conduct of the public representative inside and outside the House helps in deciding whether the membership has been voluntarily dropped or not.
  2. Independently elected MP/MLA if later take membership of any party.
  3. Relating to nominated representatives. By law, if they can join a party within six months of the appointment, not thereafter.

A political party is allowed to merge with another political party. The condition is such that at least two-thirds of the public representatives of that party are in favor of the merger. In such a situation, the anti-defection law will not apply to the public representatives nor to the political party.

There is no time limit for decisions on defection cases. There have been many such incidents where the term of the assembly ended but the speaker could not take a decision. Many times it happened that the decision remained pending and the concerned MLAs were made ministers. In 2020, the Supreme Court had ruled that in an ideal situation, speakers should decide on the anti-defection petition within three months.

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What is the action on such MLAs?
If the Speaker/Chairman disqualifies the public representative, he cannot contest the election during that session. He may be a candidate in the next session. No member declared ‘disqualified’ can be made a minister till the completion of the term.

How effective is this law?
Goa, Madhya Pradesh, Rajasthan, Tamil Nadu, Maharashtra… In recent times we have seen parties imprison their MLAs in resorts to prevent them from switching sides. Political changes have also been taking advantage of the anti-defection law. In 2019, 10 out of 15 Congress MLAs in Goa merged their legislature party with the BJP. In the same year, six BSP MLAs merged their party with the Congress in Rajasthan. In Sikkim too, 10 out of 15 MLAs of Sikkim Democratic Front had joined BJP.

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Why did the political earthquake occur in Maharashtra?
This political upheaval of Maharashtra started after the results of MLC elections were announced. It all started with the BJP winning five seats in the elections yesterday. Cross voting took place. According to BJP leaders, he got 52 votes out of 56 for Shiv Sena, 57 out of 53 for NCP and 41 out of 44 for Congress. At the same time, BJP with 106 potential got 133 votes. In the recent Rajya Sabha elections too, after cross voting in favor of BJP, the developments escalated rapidly after this situation in MLC elections also yesterday. Minister Eknath Shinde along with several MLAs reached Surat in Gujarat after midnight. There were reports of several MLAs reaching there in the morning. Many BJP leaders are in touch with these MLAs.

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