Maharashtra crisis: What is the anti-defection law and can Eknath Shinde side-step it?

Earlier, Shinde ‘overruled’ the orders of Shiv Sena chief whip Sunil Prabhu asking all party legislators to be present at the Uddhav Thackeray’s ‘Varsha’ residence at 5 pm on Wednesday, failing which, actions would be taken against them under the provisions of the anti-defection law.

Several TV reports have released lists of MLAs and ministers who have joined Shinde and might quit Sena, thereby putting the MVA government in danger.

After 34 MLAs wrote to the Maharashtra Governor pledging their support to ‘rebel’ Shiv Sena MLA Eknath Shinde, the anti-defection law has taken centrestage once again. Under the anti-defection law, if less than two-third of the MPs/MLAs from a single party break away to form a separate faction, or join another party, then action would be taken against the MPs/MLAs, which might lead to their disqualification.

Earlier, Shinde, who is camping in Assam’s Guwahati with other defectors, ‘overruled’ the orders of Shiv Sena chief whip Sunil Prabhu asking all party legislators to be present at the Uddhav Thackeray’s ‘Varsha’ residence at 5 pm on Wednesday, failing which, actions would be taken against them under the provisions of the anti-defection law. Soon after Shinde called it “legally invalid,” the meeting was cancelled

“You cannot remain absent from the meeting without providing a valid and sufficient reason. If you do not attend the meeting, it would be presumed that you have a clear intention of leaving the party. Hence, there will be action taken against you based on the provisions for preventing anti-defection,” the letter from Prabhu read.

What is the anti-defection law?

Under the tenth schedule of the constitution, the ‘anti-defection law’ was put in the Constitution after the 52nd amendment in 1985. Under this law, defection means “to abandon a position or association, often to join an opposing group.”

Anti-Defection Law: Who gets to decide?

In such matters, Speaker of the Assembly will be the deciding authority. The due process is a lengthy one as the Speaker or the Chairman of the House or a Presiding Officer is required to hear the arguments of the rebel legislators, before passing a judgement. However, due to the absence of a full-time Speaker, the Deputy Speaker Narhari Zirwal, who is from NCP, will be the deciding authority. The decision by the Presiding Officer is not final as it is subject to judicial review. There is no time limit within which the Presiding Officer has to act. The High Courts or Supreme Court can only be approached after the Presiding Officer has given his or her decision.

Maharashtra anti-defection: Current scenario

If two-third of MPs/MLAs decide to merge with another party, then the provisions of the anti-defection law will not be applicable. Earlier in the day, Shinde had claimed that he had the backing of 46 MLAs, including 7-8 MLAs. Now, Shinde should have the backing of at least 37 MLAs to officially break away from the party without inviting any punishment under the anti-defection law. In the 288-member Maharashtra Assembly, Shiv Sena has 55 MLAs. If Shinde’s claims are to be considered true in nature, then his camp may have just enough numbers on their side, after deducting the Independent candidates, to bypass the anti-defection law

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