The high-voltage political drama in Maharashtra has thrown the spotlight on the anti-defection law, and the roles of the Deputy Speaker and the Governor. The Shiv Sena-led Maharashtra government is facing major political turmoil after Eknath Shinde decided to be a rebel. He has taken several MLAs of the Shiv Sena to Guwahati, claiming that 50 out of 55 lawmakers in the state government support him. Maharashtra Chief Minister Uddhav Thackeray on Tuesday appealed to the rebel MLAs to come for talks.
Decisions that chart the future of Maharashtra are being taken at a hotel in Guwahati and the Supreme Court premises. But political action may finally return to the state’s Legislative Assembly as rebel Shiv Sena leader Eknath Shinde mulls approaching the Governor for a floor test.
The Tenth Schedule of the Constitution seeks to prevent political defections which may be prompted by reward of office or other similar consideration. The Rajiv Gandhi government introduced it in 1985 via the 52nd constitutional amendment. This law was brought in after various state governments were toppled by party-changing MLAs after the 1967 general elections.
It brought in the one-third rule – that is a ‘defection’ by one-third of the elected members of a political party was considered a ‘merger’ and thus would not be subject to the provision of the law.
However, in 2003, the then Atal Bihari Vajpayee government via the 91st Constitutional amendment made a change – requiring at least two-thirds of the party members to avoid facing anti-defection charges during a split.
The anti-defection law—applicable to houses of parliament and state assemblies—provides the statutes through which a legislator could be disqualified from being a member of a house or an assembly. The law’s objective is to prevent political defection. It also includes the process to follow if a member of the house leads a petition against a ‘defecting’ member. The anti-defection law, hence, punishes an individual for leaving one party for another.
However, the law has failed to shore up the stability of elected governments. Not only have many governments fallen due to defections in recent times, but the defectors have not suffered any cautionary consequences.
The Maha Vikas Aghadi alliance currently has 152 MLAs—with 55 members of Shiv Sena, 44 members of the Indian National Congress and 53 members of the Nationalist Congress Party. With the additional support of six independent MLAs.
This number, however, is subject to change as speculations arise over Shiv Sena’s loss of MLAs. Keeping in mind the recent claims of numbers and strengths, it could be assumed that Thackeray is backed by just 10-15 MLAs.
The apex court granted relief to the 16 rebel Sena MLAs to whom Maharashtra Deputy speaker Narhari Zirwal had shot off disqualification notices under the anti-defection law.
In their writ petition, the rebels argued that Zirwal has no authority to invoke Members of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules 1986 as he has lost his position because the Maha Vikas Aghadi (MVA) alliance is now a “minority government”.
The constitutional machinery has not been disrupted in the state of Maharashtra yet. If such a situation arises, the Governor of the state can get involved. Till then the deputy speakers will function as the court between the Shiv Sena group and the rebel MLAs .
Constitution on a governor’s power
There are two provisions in the Constitution that deal with a governor’s power to summon, prorogue and dissolve an assembly.
Under Article 174, a governor shall summon the House at a time and place, as she or he thinks fit. Article 174 (2) (a) says a governor may from “time to time” prorogue the House and 174 (2) (b) allows her or him to dissolve the Legislative Assembly.
Article 163 says the governor shall exercise her or his functions with the aid and advice of the council of ministers. But it also adds that she or he would not need their advice if the Constitution requires her or him to carry out any function at her/his discretion.
The governor’s role is pivotal. Under Article 175(2) of the Constitution of India the Governor has the power to summon the House and call for a floor test to prove the government has a majority.
The Governor cannot however dismiss an elected Chief Minister on his subjective assessment of the strength of the government. If an elected Council of Ministers lose the confidence of the Legislative Assembly then that needs to be tested on the floor of the House.
There are two possible scenarios. CM Uddhav Thackeray may seek dissolution of the House or a special Assembly session to prove his majority. Or the rebels may send signatures of two-thirds of all Sena MLAs to the Governor and claim a legitimate split, then tie-up with the BJP (the single largest party in Maharashtra) to form an alternate government in the state.
The combination of political considerations and calculated moves by both sides, in addition to the anti-defection law, makes the Maharashtra political crisis a waiting game.
