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As Eknath Shinde Revolt Puts Uddhav Govt on Shaky Ground, A Look at Anti-Defection Law | News18 Explains

Supporters of rebel Shiv Sena leader Eknath Shinde outside his residence in Thane on Wednesday. (PTI)

Supporters of rebel Shiv Sena leader Eknath Shinde outside his residence in Thane on Wednesday. (PTI)

The purpose of the anti-defection law was to ensure governments run smoothly and with stability by discouraging legislators from changing parties

As the political crisis unfolds in Maharashtra, threatening the stability of the Uddhav Thackeray government, a debate has erupted over the legalities of MLAs switching over to the rebel side led by Eknath Shinde. Wednesday saw hectic parleys as senior leaders of the MVA government met to quell the crisis but Shinde seemed resolute on his stand as he camped in Guwahati and claimed the support of over 40 MLAs.

Amid the war of words, News18 takes a look at the Anti-defection law and what it means for Shinde & company:

What is the Anti-defection law?

The law is a tool that punishes individual MPs/ MLAs for leaving one party to join another. However, a group of MP/ MLAs can join (merge with) another political party without inviting penalty for defection. Also, it does not penalise parties for encouraging or accepting defecting legislators.

The purpose of the anti-defection law was to ensure governments run smoothly and with stability by discouraging legislators from changing parties. It followed the toppling of multiple state governments after the 1967 general elections.

The provisions were added to the Constitution as the Tenth Schedule in 1985 when Rajiv Gandhi was Prime Minister.

How is a defection decided?

Under the law, there is scope for three kinds of scenarios.

The first is when legislators, who are elected on the ticket of one party, “voluntarily give up” membership or defy the party whip.

Originally, the Tenth Schedule contained a provision for disqualification of MLAs in cases where fewer than 1/3rd of the party’s total number broke away, or where fewer than 2/3rds of MLAs of a legislature party merged with another political party. Following an amendment in 2003, the one-third split provision was deleted.

In the second situation, a debate may be triggered when an MP/ MLA elected as an Independent member of the House goes ahead and joins a party.

The third scenario relates to nominated legislators in which case the law is clear that they can join a political party within six months of being appointed to the House, and not after such time.

Violation under these three scenarios can lead to penalty under the defection law and the decision-maker in such cases are the Presiding Officers of the Legislature (Speaker, Chairman). However, according to the Supreme Court, legislators can challenge the decisions of the Presiding Officers before the higher judiciary.

Has the law quelled rebellion & brought more stability?

Though the intent behind the law was noble, it has failed to serve the purpose for which it was brought in. Instead, it has given rise to a new political concept called “resort politics”, wherein parties herd their MLAs to resorts to prevent horse-trading. Recent examples are Rajasthan (2020), Maharashtra (2019), Karnataka (2019 and 2018), and Tamil Nadu (2017). In the latest situation, Shinde’s MLAs were taken to Gujarat’s Surat and then to Assam.

But this is not to say that parties have not used the law to their advantage. In Goa in 2019, 10 of the 15 Congress MLAs merged their legislature party with the BJP. In the same year, six BSP MLAs merged their party with the Congress in Rajasthan, and in Sikkim, 10 of the 15 MLAs of the Sikkim Democratic Front joined the BJP.

Any suggestions to improve the law?

The judgment of Justice Rohinton Nariman in the 2020 case of Keisham Meghachandra Singh v. the Hon’ble Speaker Manipur has been crucial to the anti-defection law, where Justice Nariman spoke of setting up an external mechanism to deal with cases of defection.

Former Vice President Hamid Ansari has suggested that it must apply only to save governments in no-confidence motions.

According to the Election Commission, the body should be the deciding authority in defection cases to avoid complaints of bias.

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