On Wednesday, After the rebel Shiv Sena MLAs led by minister Eknath Shinde moved to Guwahati from Surat, the group has now passed a resolution to name Eknath Shinde as the leader of the Shiv Sena legislature party. While 34 Shiv Sena MLAs have signed the resolution, Shinde has claimed that he is backed by 46 MLAs including 40 MLAs of Shiv Sena.
In the resolution, the leaders have unanimously stated that they are with Eknath Shinde and that they were unhappy over allying with the corruption-tainted parties Congress and the Nationalist Congress Party.
In the Maharashtra Assembly of 288 members, Sena had 55 MLAs in the House, before Eknath Shinde’s revolt. With 53 members of the NCP and 44 MLAs of the Congress, the strength of the ruling Maha Vikas Aghadi coalition was 152. With the magic halfway number of 145 members to form a government, uncertainty has loomed over MVA’s fate after the great Shinde rebellion.
Given that Shiv Sena has 55 members in the Maharashtra Legislative Assembly, Eknath Shinde however needs the support of 2/3rd MLAs of his party i.e. in total 37 MLAs backing him to avoid being penalised under the anti-defection law.
What is the anti-defection law?
The Anti-defection law attempts to control, limit or punish the defection of legislators from one party to another after the elections for forming the government. The law permits legislators or elected representatives to join another political outfit under certain conditions.
The law was brought in the Tenth Schedule of the 52nd amendment to the Constitution of India during the Rajiv Gandhi Government in 1985. The move came after the need to stabilize the deflection of leaders from one party to another during cases of political compromise to form a government. In 2003, during the 91st amendment to the Consitution, provisions to disqualify defectors and bar them from becoming ministers were added.
It was during the 1967 General Elections, that out of 3,500 members that were elected to legislative assemblies of various states and union territories, around 550 subsequently defected from their original parties. Among rising sentiment to tackle the defection problem, a committee was formed under Congress leader Yaswantrao Chavan to assess the situation. However, it was only after Rajiv Gandhi secured a majority in 1984 that he brought the first anti-defection bill. It came into being in 1985.
The law recognizes two kinds of defections when it comes to elected representatives – one in which members voluntarily give up membership of their party and the other in which an independently elected member joins a political party. Paragraph 4 of the law categorically states that disqualification of elected members would not account if a merger with a new political party happens with 2/3rd of the members from the original party.
Hence in the current scenarios, for the Shinde group to avoid disqualification of its members, it should have more than 2/3rd of elected Shiv Sena MLAs i.e. 37 out of 55 total MLAs.
According to the law, the Chairman or the Speaker of the respective legislative house is the final decision-making authority in case of any disqualification due to defection arises. In this way, the law upholds the legalization of the defection of MLAs under certain conditions. However, it does not limit court intervention in such cases under articles 32, 226, and 137 of the Constitution.
If Eknath Shinde successfully manages to have the backing of a total of 37 MLAs in this scenario, he could successfully lead the rebellion in the Shiv Sena. However, the final authority in this matter would be the acting speaker in the Maharashtra Assembly, if any disqualification of defected MLAs takes place.
