DNA Explainer: What's anti-defection law and how Eknath Shinde could well evade it

The Maharashtra political crisis that began on Tuesday has deepened and there seems no way to end the deadlock between the Shiv Sena and its party rebels. Shiv Sena leader Eknath Shinde has emerged as the person around whom the main contention has grown between the party and its unhappy MLAs.

Eknath Shinde claims that he has the support of 46 MLAs including 40 legislators from Shiv Sena. Uddhav Thackeray's party currently has 55 MLAs, and if Shinde can break away two-third or 37 MLAs, he will escape punishment under the anti-defection law. So how realistic are Eknath Shinde's chances to dodge the anti-defection law and what it means?

Read | Maharashtra: Eknath Shinde has enough MLAs in Guwahati to evade anti-defection law?

What is the anti-defection law?

Defection is defined as a conscious abandonment of allegiance or duty. The anti-defection law is a way to control, limit or punish those legislators who shift from one party to another after the elections for forming the government and voluntarily give up their party membership.

The law permits legislators or elected representatives to join another political party under certain conditions. The law was brought in the Tenth Schedule of the 52nd amendment to the Constitution of India during the Rajiv Gandhi Government in 1985. 

The Supreme Court has interpreted the term broadly. The apex court ruled that an MLA's conduct can indicate whether they have left their party. The law is also applicable to independent MLAs. They are prohibited from joining a political party, and in case they do so, they can also lose their membership in the legislature.

There are two kinds of defections - one, where members voluntarily give up membership of their party and in the other, an independently elected member joins a political party. The anti-defection law does not apply if the number of MLAs who leave a political party constitute two-thirds of the party's strength in the legislature. These MLAs can merge with another party or become a separate group in the legislature.

Does the anti-defection law apply in Maharashtra?

In the present political scenario in Maharashtra, for the Eknath Shinde group to avoid disqualification of its members, it should have more than two-third of elected legislators, that is 37 out of 55 total MLAs. News reports suggest Eknath Shinde has the support of 46 MLAs.

The Chairman or the Speaker of the respective legislative house is the final decision-making authority who decides whether an MLA has left a party or a group and if he will be disqualified under anti-defection law. However, it does not limit court intervention in such cases under Articles 32, 226, and 137 of the Constitution.

The position of the Speaker of the Maharashtra Assembly is, however, currently vacant. The last Speaker was senior Congress leader Nana Patole who resigned from the post in 2019. Currently, Deputy Speaker, Narhari Zirwal of the NCP is performing the Speaker's duties under the provisions of Article 180(1) of the Constitution.

Who can bring up the issue?

Any MLA of the Assembly can petition Deputy Speaker, Narhari Zirwal that certain MLAs have defected from their political party. But documentary evidence has to be provided foe this. The Deputy Speaker would then forward the petition to the MLAs against whom the charge of defection stands. The MLAs would have seven days to put across their side of the story.

The rebels too can write to the Deputy Speaker with evidence claiming that they represent two-thirds of the party strength and claim protection under the anti-defection law. In either case, Speakers will decide the matter after hearing all parties, which could take time.