As the Maharashtra political crisis triggered by Shiv Sena leader Eknath Shinde's rebellion continues to rage, India's anti-defection law is likely to become relevant once more.
Shinde, who first took his gang of rebels to Surat in Gujarat and then moved them to Guwahati in Assam, claims to have a total of 42 Members of the Legislative Assembly (MLAs) on his side: 35 from the Shiv Sena and seven independents. The total is supposedly increasing, though not the number of Shiv Sena MLAs.
While this is a serious challenge to Uddhav Thackeray's government, unless either side steps up and forces some sort of action, the situation will remain at an impasse.
This is because Shinde's faction currently has to walk a fine line between his support for the Bharatiya Janata Party (BJP) and the anti-defection law, which is to be found in the Tenth Schedule of the Constitution.
Shinde has made it clear that he wants the Shiv Sena to rekindle its alliance with the BJP, and end the Maha Vikas Aghadi alliance with the Congress and Sharad Pawar's NCP.
This is a clever move to make, since if his MLAs do not actively resign and join the BJP, they cannot be said to have defected.
However, depending on how things play out over the next few days, the anti-defection law could still come into play against them, and an issue currently before the Supreme Court could determine the fate of the MVA government, which came together in the state in such an unlikely manner in 2019.
When Can an MLA be Disqualified Under the Anti-Defection Law?
India’s anti-defection law is contained in the Tenth Schedule of the Constitution., which was added in 1985. Article 102(2) of the Constitution says that a Member of Parliament (MP) can be disqualified under the provisions of the Tenth Schedule, and Article 191(2) says the same for an MLA or Member of a Legislative Council.
The key provisions in the Tenth Schedule are Paragraph 2 (which deals with disqualifications) and Paragraph 4 (which deals with the main exception to disqualification.
According to the Paragraph 2, a member of a House belonging to a particular political party "shall" be disqualified from their membership of that House if they:
Voluntarily give up membership of their political party – Para 2(1)(a); or
Vote or abstain from voting in that House contrary to the directions of their political party – Para 2(1)(b).
If an MLA who stood on a ticket from Party A and won, then resigns from Party A and joins Party B, that is an obvious example of voluntarily giving up membership of the Assembly, and would be clear grounds for disqualification.
However, it should be noted that an MLA does not need to resign formally for them to be said to have voluntarily given up membership of their political party, this can be inferred from their conduct, according to several judgments of the Supreme Court.
As a result, if an MLA does not tender a formal resignation from their party, but stands for election as an MP from another party, or takes up a position in another party, that would also amount to voluntarily giving up their membership, and be grounds for disqualification.
Till a few years ago, resigning from the House rather than the party could also be considered an implied resignation from the party, giving rise to disqualification.
However, in its 2019 judgment on the Karnataka Assembly machinations, the Supreme Court held that Speaker of the House couldn't say that such a resignation was not genuine and was actually meant to be a resignation from the party.
At the same time, if the Speaker disqualifies an MLA for some other conduct, a subsequent resignation from the House cannot save them from disqualification – though the MLA cannot be barred by the Speaker from standing in the by-election/next election upon disqualification.
The second condition for disqualification in Paragraph 2 is a little more straightforward. When there are votes on legislation or issues like no-confidence/floor tests, parties issue what are called 'whips', ie, directions to their legislators on how to vote.
For instance, if a vote of no-confidence in the government is being held, the parties which form the government will direct all their legislators to vote against the motion, while the opposition parties will direct their legislators to vote for the motion.
Any MLA who fails to follow these instructions will be liable for disqualification under the Tenth Schedule, regardless of the result of the vote.
What Are the Exceptions to the Anti-Defection Law?
There used to be two key exceptions to disqualification: splits and mergers.
If at least 1/3 of the members of a political party in that particular House decided to leave together, then those who had split away could not be disqualified under Paragraph 2(1) of the anti-defection law.
However, the split exception was being widely misused, and was removed by a constitutional amendment in 2003. This left mergers as the only real exception to disqualification under the law.
Paragraph 4(1) of the Tenth Schedule says that a member of a House who was elected to it as part of a political party cannot be disqualified if their original political party merges with another party.
According to Paragraph 4(2), for a merger to be valid, 2/3 of the members of the legislature party (ie, number of MLAs/MPs the party has) have to agree to the merger.
Any legislator who chooses to join the merged party, or refuses to join the merged party and stays out as a separate group, cannot be disqualified.
How the Anti-Defection Law Can be Triggered in Maharashtra & Why the SC's Rulings are Crucial
Since Shinde is saying his MLAs are the true Shiv Sena and are not resigning, this avoids them falling immediately foul of the anti-defection law, though it also hamstrings the ability of the rebels to take any action that could bring down the MVA government.
While the Uddhav Thackeray faction of the Shiv Sena could try to argue that the current conduct of the rebels amounts to impliedly giving up their membership of the party, this will not be an easy task.
The Deputy Speaker (currently there is no permanent Speaker of the Maharashtra Assembly) who is from the NCP could no doubt pass such a ruling, but this would then be challenged in the Bombay High Court if not the Supreme Court.
Even if disqualification were upheld on this basis, this would not necessarily help the MVA, as it would struggle to retain a majority, even though the strength of the house is reduced by the number of disqualified MLAs.
Here, the strength of the house would go down to 253, if all 35 Shiv Sena rebels are disqualified, requiring a majority of 227 MLAs, which the MVA may not be able to cobble together.
For the MLAs themselves, it obviously makes no sense to resign and trigger disqualification proceedings, given their claim to be the true upholders of Balasaheb Thackeray's legacy. Moreover, even if the rebel MLAs resigned from the House, thereby avoiding disqualification per se, the BJP will be unable to secure a majority.
In the absence of resignations, that would mean that the anti-defection law is only likely to be triggered if there is a floor test or vote of no confidence in the Uddhav Thackeray government.
If the rebels do not vote for the MVA government, then they would be directly in the teeth of Paragraph 2(1)(b), and would likely face disqualification by the Deputy Speaker.
Of course, this is where the exception for mergers and the Shinde faction's claim to be the real Shiv Sena could come into play.
First off, Shinde could argue that any whip to vote for the MVA government is invalid as it is not from the real party, which is his faction. However, this may not be quite so simple as to do this formally, he would need to approach the Election Commission and get them to recognise his faction as the official one.
This process would take time and back and forth arguments from his faction and the Uddhav Thackeray faction, all of which will not happen immediately, and if the vote happens before then, could lead to disqualification of his rebels.
The option most likely to succeed in a regime change, even though controversial, would be for Shinde to merge his rebels with the BJP or some other party allied with the BJP.
For this, he would need 37 Shiv Sena MLAs (there are currently 55) to jump ship with him to meet the 2/3 mark required by Paragraph 4 of the anti-defection law. However, there are questions about whether this would be legally valid.
Strictly speaking, even with 37 MLAs going with him, that would not be a merger, as the Shiv Sena as a party has not made this decision. Yes, if he gets a ruling from the Election Commission that he is the true representative of the Shiv Sena, he could make this claim, but in that case he wouldn't need to push for a merger anyway.
Fortunately for him, the Goa bench of the Bombay High Court in February this year – in the context of the defections of Congress MLAs to the BJP – held that once 2/3 members of the legislature party make a move to another party, this counts as a merger even if this is not a party decision.
If this is how the law is to be interpreted, if Shinde can get 37 Shiv Sena MLAs to move with him to the BJP, he could topple the MVA government.
The Goa Congress has filed an appeal against the high court decision in the Supreme Court, which is yet to hear the matter. If they rule that a party decision is required rather than a simple 2/3 number, then Shinde and his rebels could find themselves disqualified if they jump ship in the meantime.
Of course, given the political considerations of claiming to be the real Shiv Sena, Shinde and his rebels are unlikely to make this move.
This combination of political considerations and the anti-defection law mean both sides are likely to be playing a game of chicken until such time as Shinde can get a finding from the Election Commission that he is the real Shiv Sena, or Uddhav Thackeray or one of his allies decides to cave in to the pressure.
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