According to the anti-defection law spelled out in the Tenth Schedule of the Constitution, a group of lawmakers can leave the party and merge with another if two-thirds of the original party supports the move. The MLAs would face disqualification proceedings if they fail to garner the strength
Maharashtra’s ruling coalition Maha Vikas Aghadi (MVA) may turn to the anti-defection law to quell the dissidence within the Shiv Sena and bring back stability in the government.
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Senior Shiv Sena leader and state cabinet minister Eknath Shinde rebelled against Chief Minister Uddhav Thackeray and is currently in Guwahati with 40 MLAs, as per his claim.
Shinde is said to be unhappy as he claims he was sidelined by the party and wasn’t taken into confidence while formulating important policies and strategies. Recently, the party rejected his demand to go alone in the Thane Municipal Corporation polls. The party decided to contest in alliance with the Congress and the NCP, the other constituents of the MVA.
According to the anti-defection law spelled out in the Tenth Schedule of the Constitution, a group of lawmakers can leave the party and merge with another if two-thirds of the original party support the move. The MLAs would face disqualification proceedings if they fail to garner the strength. At present, Shiv Sena has 55 MLAs in the Assembly and Shinde will require 37 MLAs (two-thirds of 55) to merge with BJP to save himself from disqualification proceedings.
What is the anti-defection law?
The anti-defection law came through the 52nd Amendment to the Constitution. The law, which came into effect on March 1, 1985, was formulated with the aim to bring stability in the Indian political system and discourage legislators from changing parties. The law lays down the process by which a group of MP/MLAs can join or merge with another political party without inviting the penalty for defection.
A lawmaker in the Parliament or state Assembly is said to have defected if he either voluntarily gives up membership of his party or disobeys the party leadership’s directives during voting in the House.
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Conditions and punishment
Anti-defection law covers three kinds of scenarios. The law comes into effect when legislators elected on the ticket of one political party give up membership of the party voluntarily or vote against the party’s whip in the legislature. In the second scenario, a MP or a MLA who has been elected as an independent can merge with a party later. The third scenario arises when nominated legislators join a political party. However, the law states that it can be done only within six months of being appointed to the House.
A legislator can be penalised for defection in case of violation of the law in any of these scenarios. The presiding officers of the legislatures, which can be the Speaker or chairman, are the deciding authorities in such cases. However, legislators can challenge the decisions before the higher judiciary.
The law does not provide the time frame within which the legislator should be disqualified by the presiding officer. There have been situations in which the presiding officer has not determined the case of a defecting legislator until the end of the legislature term. In some other instances, defecting MLAs have become ministers even as a defection petition against them has been pending with the Speaker. In 2020, the Supreme Court said the presiding officer should take maximum time of three months to decide on an anti-defection law petition.
Experts have, however, said the law failed to discourage defections and should be scrapped. According to PRS Legislative Research, in the past expert committees recommended making the President or the Governor the deciding authorities for the defection as the presiding officer is usually a member of the ruling party.
“An MLA who defects is free to vote until disqualified. The right to vote should freeze as soon as an MLA or MP decides to defect,” Moneycontrol quoted PDT Acharya, former secretary-general of the Lok Sabha, as saying.
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(Edited by : Sudarsanan Mani)
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