Shiv Sena rebel and minister Eknath Shinde, who has gone off the radar after falling out with Maharashtra's current ruling dispensation and is reportedly in Guwahati, has put the Anti-Defection Law into focus once again.
He has the support of select Members of Legislative Assembly (MLAs) with him. If a split or defection does eventually occur, it has the potential to topple the government led by Chief Minister Uddhav Thackeray.
However, the number of his supporters is not known, as all reporting on the issue is source-based. Only recently, he told NDTV that he has the support of 46 MLAs with him. However, reports also put this number as low as 26.
He needs 37 MLAs belonging to the Shiv Sena to engineer a mass defection to join another political party without repercussion under the law.
Currently, the Shiv Sena has 56 members in Maharashtra's Legislative Assembly. This means two-thirds (37) or more need to defect to another party to not be disqualified as members of the assembly.
Here's what the law means, and what its exceptions are.
What is the Anti-Defection Law?
The Anti-Defection Law was passed as the 25th Amendment to Indian Constitution through an Act of Parliament and was added as its Tenth Schedule by the government of Prime Minister Rajiv Gandhi in 1985.
Its reasoning - as given by the objective statement in the Act - is as follows.
The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill.
The law was given to arrest the turncoat nature of political defection, where legislators freely jumped ship as per their political convenience without consequence. For example, in Gaya Lal, a legislator in a new-formed Haryana state that was carved out of Punjab, changed political parties twice in a day and thrice in one fortnight in 1967. This unrestricted defection is linked to the adage 'Aayaa Raam, Gaya Raam'.
The second paragraph of the Tenth Schedule lays down the grounds for defection, where a member will cease to be a member of a House (at the Union or State level) if they qualify under the following:
- Voluntary resign from their political party from which they have been elected
- Vote against the direction of their political party (in legislature)
- Does not vote or abstains (in legislature) despite having a direction from their party to vote
The first and second direction does not apply if the member is question has prior permission from their party to vote disparately, or if the party condones the vote within 15 days of it taking place.
Members independent of any political party will lose their membership if they join one after their election to legislature.
Nominated members will lose their membership if they join a party within 6 months of their nomination to legislature.
The Tenth Schedule of the Constitution can be read here.
What exceptions exist?
The exceptions that exist, where members are not disqulified from the House they are a member of are:
- When political parties merge with each other entirely
- When a party splits into another party, subject to a third or more of the members splitting. This was added according to the 93rd Amendment to the Indian Constitution
- When two-thirds of the members or more split and join another political party without the parties explicitly merging
The Speaker or the Chairman of the concerned Houses (as applicable) makes decisions on defection matters. If the Chairman or the Speaker defects, the decisions shall be made by a member elected by the House.
The anti-defection backdoor
Rather than explicitly defecting, politics over the last few years has seen MLAs of the ruling party quit to bring down the government's numbers in an Assembly, usually below that of the opposition, thus letting the opposition come to power and exposing the government to a trust vote.
As there is an explicit resignation taking place, the Anti-Defection Law does not apply.
Later, the government wins the bypolls to these now vacant seats.
For example, in Madhya Pradesh, now Union Civil Aviation Minister Jyotiradita Scindia quit the Congress in March 2020 and joined now-ruling Bharatiya Janata Party, taking 22 MLAs with him, bringing down a government then led by Chief Minister Kamal Nath. Shivraj Singh Chauhan, the current chief minister, was promptly sworn in with the BJP winning a majority of these seats in the bypoll that followed in November.
A similar tale in Karnataka brought down the combined government of Congress and the Janata Dal (Secular) in Karnakata, led by H.D. Kumaraswamy in 2019.
Experts have argued that the Anti-Defection Law in its current form is harmless against such backdoors.
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