Maha Political Crisis: Can the dissident Shiv Sena legislators face proceedings under the anti-defection law, or do they have the numbers to evade this? Let’s look at what the law says in such political crisis.
The recent turmoil in Maharashtra politics has once again kindled the issue of the Tenth Schedule of the Constitution, that is, Anti-Defection Law. As things stand, three more Shiv Sena MLAs left Mumbai on Thursday, June 23, to join Eknath Shinde camp in Guwahati, taking the number of members supporting him to 39 out of the 55 that the party has in the House. The party has now warned the rebellion MLAs that it would take action against them under the anti-defection law.
Newly appointed party leader Ajay Chaudhari submitted a petition to the deputy speaker of the state assembly (Maharashtra Assembly doesn’t have a Speaker at present) demanding the disqualification of 16 MLAs for not attending the legislative party’s meeting convened by Chief Minister Uddhav Thackeray on June 22. After this move, all eyes are on Deputy Speaker now. Can the dissident Shiv Sena legislators face proceedings under the anti-defection law, or do they have the numbers to evade this? Let’s look at what the law says in such political crisis.
As per Tenth Schedule of the Constitution, there is a provision called merger that protects an elected representative from disqualification on ground of defection. According to it an elected representative shall not be disqualified if their parent political party merges with another political party or they have not accepted the merger and opted to function as a separate group and two-thirds of the members of the legislature party concerned have agreed to such merger. In this case Shinde would need just 36 legislators to go along with him to avoid disqualification under the anti-defection law. As per the rules, if Shinde and his supporting MLAs want to merge with BJP, at least 37 members (two-thirds of Shiv Sena’s 55) have to come together to make sure they do not face disqualification.
What does the Tenth Schedule say?
The Tenth Schedule was added by the Constitution (Fifty-Second Amendment) Act, 1985, popularly known as the “anti-defection law,” provides for the disqualification of Members of Parliament and state legislatures who defect. The amendment was envisioned to bring stability to the edifice of political parties and strengthen parliamentary democracy by prohibiting floor-crossing.
Paragraph 2 of the Schedule says that “a member of a House belonging to any political party shall be disqualified for being a member of the House—if he has voluntarily given up his membership of such political party; or if he votes or abstains from voting in such House contrary to any direction issued by the political party. . . .”
What is the Speaker’s power?
Paragraph 6(1) of the Tenth Schedule describes the Speaker’s sweeping discretionary powers: “If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final.”
Supreme Court on the issue of anti-defection
Several decisions of the SC on the issue of anti-defection clarify the legal status of this law and the legal position of a defection member of the House. A constitutional challenge to the Tenth Schedule was settled by the apex court in Kihoto Hollohan vs. Zachillhu and Others (1992). In this case, the petitioners had argued whether it was fair that the Speaker should have such broad powers, given that there is always a reasonable likelihood of bias. The majority judgment answered this question in the affirmative: “The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.”
In this case, the SC has stated that judicial review may not be available at a stage prior to the making of a decision by the Speakers/Chairmen. The Constitutional Court cannot judicially review disqualification proceedings under the Tenth Schedule, that is, the anti-defection law of the Constitution, unless the Speaker/Chairman of the House makes or renders a final decision on merit.
The SC further held that the scope of judicial review in respect of an order passed by the Speaker/Chairman of the House in anti-defection proceedings would be confined to jurisdictional errors only, that is to say, infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity. The court has further clarified that the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.