Monday, August 8, 2022

Circumventing the law

It had been long expected that the Maha Vikas Aghadi (MVA) comprising of the most unlikely of political alliances- Shiv Sena, NCP and Congress- would not have a smooth sailing not because their ideologies were too contradictory but because all of them shared the same political ambition. The opportunistic Maharashtra coalition- the MVA government headed by a non-elected member Uddhav Thackeray- was remote controlled by the NCP. The cross voting by Shiv Sena MLAs that saw BJP gain a RS seat and several more MLC seats should have been a strong warning but which Uddhav Thackeray failed to act. There were simmering discontents that finally led to a revolt led by rebel leader Eknath Shinde. The Sena rebel MLAs went to Surat, Gujarat without the MVA government having got wind of. The rebels then flew to Guwahati, Assam under protection of the Himanta Sarma government. The Sena has 55 MLAs and the number of rebels continued to soar to around 37 or 2/3rd of the total number that insulated them against being disqualified under the Tenth Schedule of the Anti Defection Law. The rebellion means that the MVA government has lost majority but the rebels and BJP have yet to stake claim to form an alternative government. The minority Sena group headed by Uddhav is likely to move for disqualification of over a dozen rebel MLAs so that the number would come down and expose the remaining to be brought under the ambit of the Anti Defection Law. Under the provision of the Constitution (91th Amendment Act of 2003), the defectors will not only lose their membership of the House, they are also debarred from holding any public office as that of a Minister till they are elected again. As per facts and in a simple case, the Anti Defection Law can only be applied if the number of MLAs in a legislature fall below 2/3rd of the total number. The speaker and in this case, the deputy speaker of the Maharashtra assembly is expected to toe his party’s line against the rebel group led by Shinde. Under Anti Defection law 1985 a legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. According to the Supreme Court, The phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation. Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned. The rebel Sena MLAs could fall into this category and attract provisions under the Anti Defection Law. The best option will be for the governor to direct the speaker to convene the house for a floor test instead of going by head count at Raj Bhavan and inviting formation of an alternative government. The court may also refuse to intervene if the due process of law is carried out. It is time to review the Anti Defection Law so that the governor and presiding officer are not given too much liberty to interpret the clauses.

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