Anti Defection Law
- The Maharashtra Assembly’s Speaker had to determine if the Shiv Sena breakaway group’s Members of the Legislative Assembly (MLA)
- They disqualified themselves by willingly leaving their party and voting against the whip that was issued by that party.
Law Against Defection:
- The Tenth Schedule of the Constitution has an anti-defection law that was implemented to stop lawmakers from frequently leaving the chamber.
- Its goal was to prevent lawmakers from switching parties in order to stabilise administrations.
- It establishes the procedures for disqualifying elected officials for switching to a different political party.
- It spares a group of MPs and MLAs from the consequences of defecting by allowing them to join, or unite with, another political party.
- Political parties are not penalised for supporting or admitting MPs who are defecting.
- This was altered by the 91st Constitutional Amendment Act, 2003, which states that for a “merger” to be recognised by the law, at least two-thirds of the party’s members must support it.
- Members who are legally disqualified may run for office in the same House from any political party.
- The Chairman or Speaker of that House will decide whether to disqualify someone for defection; this decision is subject to “judicial review.”
- There is no deadline set by law for the presiding officer to make a decision in a defection case.
Regarding paragraph 2(1)(a) of the Tenth Schedule, the Supreme Court held in Rajendra Singh Rana v. Swami Prasad Maurya (2007):
- When an individual or a faction inside the ruling party collaborates with the opposition party, meets with the governor with opposition members, and attempts to establish a different kind of government
- It can be argued that they left their original party of choice voluntarily.
- This will result in disqualification.
Subhash Desai v. Maharashtra Governor & Ors. Principal Secretary. 2023:
- The Supreme Court notes that there is now a division within the Shiv Sena party, resulting in the emergence of two factions.
- This observation is meaningless in the context of the Tenth Schedule since it does not currently recognise splits.
- Thus, a rift within a party no longer shields legislators from impeachment.
Maharashtra’s situation:
- The renegade MLAs met in secret in a distant State.
- Without providing an explanation, they skipped the important parliamentary party meetings that the original Shiv Sena party president had organised.
- The creation of an alliance with the opposition party marked the pinnacle of this insurrection.
- The Speaker was asked to determine if Eknath Shinde and his associates’ actions might be interpreted as their voluntary resignation from the party.
A lawmaker could be excused from disqualification under the Tenth Schedule for two reasons:
- When a lawmaker’s party unites with another, at least two thirds of the members must approve the merger in order for the original party to dissolve.
- His political group splits, with one-third of the lawmakers leaving the party to create their own faction.
- The Tenth Schedule’s split provision was removed in 2003 with the 91st Amendment to the Constitution.
- due to the clever politicians’ frequent misuse of this provision.
Problems with the Speaker’s choice:
- The Speaker is not required by the Tenth Schedule to determine which faction is the true party. Therefore, he cannot make this decision.
- Under paragraph 15 of the symbols, only the Election Commission has the authority to determine.
- According to paragraph 2(1), a member of the House who is elected is considered to be a member of the political party, if any, that nominated him to run for office.
- Determining which faction is the true party that is unrelated to the anti-defection law is not the Speaker’s job.
Motives for enacting anti-defection legislation:
- Governments: The frequent collapse of governments was triggered by defections.
- Power-hungry politicians wrecked havoc on political parties, leading to a tremendous deal of instability inside the parties.
Way Ahead:
- The Supreme Court’s ruling (paragraph 119 of the Subhash Desai judgement) is in opposition to the Speaker’s assertion that the appointments of the Chief Whip and the leader of the legislature party are legitimate.
- The Deputy Speaker’s decision to recognise the Chief Whip is legitimate, the Court ruled.
- It is evident from the Subhash Desai ruling that the Shiv Sena, led by Uddhav Thackeray, is the original political party and the only one capable of giving all of its members a legitimate whip.
- The Election Commission of India is the only body that has the authority to determine which faction of the Shiv Sena is authentic.
- Paragraph 15 of the Symbols Regulation was not taken into consideration by Parliament while the Tenth Schedule was being enacted.
- The Tenth Schedule protected cases of principled defections, particularly when MLAs found themselves at odds with the philosophy of their original party, by exempting splitting and merging MLAs from disqualification.
This assumption is contradicted by the actual application of these exclusions, where mergers are purposefully designed to topple legitimate governments.
