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Anti-Defection Law: The Controversial Affairs of Maharashtra Politics

- Sneh Gada and Rushit Chhadwa


India is a democratic country. Democracy is a form of government whereby we – the citizens, have the power to choose our representatives, who raise their voices for the betterment of the citizens. The recent political crisis in the state of Maharashtra has captured the limelight of the entire country. The sudden breakdown of the Maha Vikas Aghadi Government in the state of Maharashtra has raised several questions on the constitutional validity of such a move by the rebel group and brought to light the question of the validity and effectiveness of the anti-defection law in India. The author of this blog seeks to shed light on the recent controversial affairs in the state of Maharashtra and enlighten the need for restructuring the anti-defection law which has failed in achieving its goals. The authors herein do not intend to make any solid statements and the views expressed are solely personal.

Anti-defection law in India[1]

India gained its independence in the year 1950. The first decade after independence India witnessed numerous cases of political disarray due to members leaving and joining different parties and the number of such defection is still at its peak. It took 35 (thirty-five) years since India’s independence for the enactment of the legislation; finally, in the year 1985, the Indian National Congress government (popularly the Rajiv Gandhi government) passed the Anti-Defection Law through the 52nd Amendment to the Constitution. The anti-defection law has been enshrined under the Tenth Schedule of the Constitution of India. The main objective for the enactment of this law was to defeat the evils of political defection. As per the provisions of the anti-defection law, the legislators shall be deemed to be disqualified from their membership if any member resigns from their party after being elected or does not abide by the direction issued by the party leadership during a vote on any issue. The law particularly deals with situations of defection in parliament by members of any political party, any MLAs elected as independent members, nominated members, etc.

Grounds for disqualification under the 10th Schedule

1. If an elected legislator voluntarily renounces his membership in a political party.

2. If a member of such a political party votes against the instructions of the party, then the party possesses the right to bring an action against the defection of such member.

3. If any independently elected member joins a political party.

4. If a member who has been nominated by the President in either of the houses joins a political party after the elapse of a six-months period.

5. The Speaker or the Chairman of the house is given the power to decide the final assessment regarding the disqualification of the above-mentioned members.

Exceptions for disqualification as per the 10th Schedule

1. According to the 91st Constitutional Amendment Act of 2003, the provisions as mentioned under the 10th Schedule of the Constitution are done away with cases wherein the defection by MLAs constitutes 2/3rd (two-third) of the party’s majority and thereby enters into a merger with another political party or create a separate political party.

2. Persons elected as a chairman or speaker of the house are subject to any disqualification.

Political Crisis in Maharashtra

Shiv Sena President - Uddhav Thackeray was appointed for the post of state’s Chief Minister in 2019, representing the Maha Vikas Aghadi Government in alliance with the Congress and the Nationalist Congress Party (NCP). Since the formation of the Maha Vikas Aghadi Government, there have been differences amongst the members which led to the formation of two distinct ideological groups. Separate groups formed within the party and one such group was led by Eknath Shinde. There were allegations that the current government led by Uddhav Thackeray has been following certain conflicting ideologies. The announcement of Rebel Shiv Sena leader Eknath Shinde as the state’s Chief Minister, replacing Uddhav Thackeray, changes the political landscape in Maharashtra. The blunder in Maharashtra politics was a consequence of the Bharatiya Janata Party (BJP) winning the MLC elections with plans for forming a coalition government, followed by the revolting acts of the Rebel Shiv Sena led by Eknath Shinde. Widespread protests and rebel actions in the north-eastern Assam Guwahati as well as Surat made the dissent by the Rebel MLAs evident. Shiv Sena MLAs have been escaping and joining hands with the rebel group, which strengthened the Eknath Shinde Camp with support from more than 40 out of 55 party MLAs along with 5 to 6 independent members. These cascading events led to the floor test, and the results were clear - the Rebel Group led by Eknath Shinde and BJP won the floor test. Several actions in the form of filing of a no-confidence motion for saving disqualification of MLAs, petitions filed against the Deputy Speakers, and several MLAs were served with disqualification notice under the anti-defection law, etc.

The Supreme Court’s involvement is very crucial in this very heated state of affairs. Several hearings have taken place and on perusal of the submissions by both sides, the Supreme Court has felt the need for amendments to the anti-defection law in India due to the ambiguous nature of the act since its inception. The Supreme Court has now referred this issue to the Constitutional Bench to decide on the issues including but not limited to the scope of the 10th Schedule in dealing with issues of powers of the speaker, power of the Election Commission of India in cases of defections, the legality of the actions of the rebel groups, the effectiveness of the existing anti-defection law, etc. The final verdict is not out yet.

Anti-Defection Law – Urgent Need for Restructuring

Over the years, India has witnessed several instances of defection in states such as Uttarakhand, Gujarat, Karnataka, Maharashtra, etc which clearly shows the ineffectiveness on the part of the anti-defection law in fulfilling its role. The anti-defection law as well as the amendments carry the potential to curb the evils of defection, however certain restructuring in the framework of the act is needed in order to achieve a material change in the level of defection.

The recent political crisis in Maharashtra should be considered as a sign emphasising towards the urgent need of restructuring the anti-defection law. Overall, the Supreme Court must issue a firm and unambiguous decision to implement an effective anti-defection law in India.

Sneh Gada and Rushit Chhadwa are third year students at Pravin Gandhi College of Law, Mumbai.

[1] 10th Schedule of the Indian Constitution.

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