As Shiv Sena-led Maharashtra government finds itself embroiled in political turmoil, former Lok Sabha Secretary General speaks to PDT Acharya India aheadSmita Sharma on the ongoing crisis. He explains the provisions of the anti-defection law, the possibility of the Shiv Sena split into factions and other incidents of the actions of rebel MLA Eknath Shinde.
> If Shinde has the support of two-thirds of Shiv Sena MLAs, will he get a chance to avoid disqualification under anti-defection laws?
A. My answer is no. The anti-defection law has an escape clause, i.e. merger. This means that a person can avoid disqualification under the anti-defection law if his party, which is the original political party, merges with another party and two-thirds of the legislature, i.e. legislators, agrees to the merger. . In that case, they would certainly be exempted from disqualification under the anti-defection law, but not otherwise.
Therefore, two conditions need to be met: the parent party, i.e. Shiv Sena, has to merge with another party in this case, and two-thirds of the members of the legislature have to agree to it. They will be deemed to belong to the party that has emerged after the merger.
If two-thirds of the members agree to the merger, but party leader Uddhav Thackeray does not, will that merger still be valid?
A. If you strictly follow the anti-defection law under the Tenth Schedule, it does not recognize MLAs merging with another party when their parent party is not. If only MLAs merge, it is not a merger as per law.
Recently, the Bombay High Court ruled in a Goa case in which members of Congress joined or merged with the BJP. To that, the Bombay HC gave a ruling that if the MLAs merge, it is good enough and should be seen as a merger of the parent political party. There is no direct Supreme Court decision on this.
However, earlier, in Jagjit Singh v State of Haryana, the Supreme Court was dealing with a divided issue. The first was the provision of partition, which meant that one-third of the members could leave the party and the anti-defection law would not apply to them. This was a provision in the first law. But it was so misused that this provision was scrapped.
When partition was part of the law, the Supreme Court had decided in this case that the division had to be within the original political party. Even in the case of partition, both the paragraphs are written equally. After that, a third of the members move out. Here, the merger has to take place between two political parties and then two-thirds of the MLAs agree to it. In that case the SC had said that there has to be a split in the original political party. So that ratio has to apply in this case as well.
> If Shinde has two-thirds support, but Uddhav Thackeray says that doesn’t make you the leader of the parent party, will it be a classic vertical split case or a fight about who controls the Shiv Sena?
This is how the split in a party begins. Then after some stage, the broken faction will claim to be their parent party. And it will be denied by the original party and it will go on. Then the Election Commission has to decide. Election Symbol Reservation and Allotment Order of the Election Commission. Under that order, the Election Commission will decide which faction is the real party.
But then the Election Commission has to take into account many factors. Legislature party does not have the strength of only one faction. After all, the political party is much bigger than the legislature party. Therefore, before the Election Commission decides who represents the de facto party or which faction is the de facto party, they have to consider several factors such as the composition of the party, the support each factor has at different levels of the party and so on. Kind of further. Only after that the Election Commission can decide who represents the real party. it will take time.
> Is there any option for Uddhav Thackeray to use the whip to drive out these rebel leaders and thus save the party?
A. There are two situations. Anti-defection law works on two grounds. One, the member voluntarily gives up the membership of the party. This is the only ground on which the anti-defection law can be invoked and disqualification of the person can be sought. He doesn’t have to resign. But from his conduct you can infer that this person has voluntarily given up his party membership. It depends on the facts and circumstances of each case.
For example, yesterday he called a legislature party meeting just to make sure what support he got. This is a very important meeting. Because it actually involves the existence of the government. This becomes very important for Shiv Sena. And some section of the party, probably the majority, they did not attend this meeting. Certainly if the Shiv Sena leadership concludes that they have voluntarily given up the membership of the party and on that ground they can file a petition as the Speaker has to consider it. This is a situation where the Speaker’s intervention can be sought to disqualify these persons.
The second situation arises when voting is held in the House. Suppose the governor asks the CM to prove his majority in the house and naturally the CM has to do so. Then when the house votes, this faction which broke away from Shiv Sena, they vote against the confidence motion moved by the government. In which case the confidence motion will be defeated and the government will be out of power as they will not have majority. But that doesn’t stop them from filing disqualification petitions against all these people who voted against the motion.
> So will this matter eventually come to the Supreme Court?
A yes. The speaker has to decide at the initial stage. All questions relating to the anti-defection law will be decided in the first phase by the Speaker as he is the designated tribunal. After that of course the aggrieved party can move the court and challenge the decision of the Speaker.
Are there still sufficient grounds for imposing and imposing President’s rule?
A. No. This government is in power, nothing has happened in the assembly. This can happen even when the chief minister resigns, giving the governor an opportunity to explore the possibility of government formation. But it hasn’t happened. He has not resigned nor has the governor asked him to prove his majority. Till now whatever is happening in the political party, all those explosions which are happening, nothing has happened in the house or governor’s office or from the CM side.
Does this kind of recourse politics, repeated over the years, not reduce democracy as a joke and the electoral process as a waste?
A definitely. I completely agree with you. It is a very indecent spectacle where the members are taken as prisoners and kept at some far away place where no one can reach them and all that. I think things like this only happen in democratic countries in India. It only shows that the leadership has no faith in the loyalty of the members and the members have no loyalty to the party.
> So is there a toothless anti-defection law? How can we stop this kind of political corruption?
A. As they have removed and omitted the provision relating to partition, which was being totally misused. Similarly, this merger provision which is being misused in many cases. In most cases where defection has taken place in retail or wholesale, it has been implemented. Time has come to seriously consider this and remove that provision. Nothing will be lost if this provision of merger is removed. Then it directly becomes a matter of defection. Everything you do becomes a defection, so you have to go. You have to go means there is no other disability. You will lose the membership and then you can come back whenever the election takes place. The thing is that once you get elected on a platform, on a particular ticket, you cannot change your allegiance to that party. Because people have voted for you because you are a member of that party. If you are going to switch sides, then naturally you have to resign and go back to the people and get the mandate from them.