As the Shiv Sena-led Maharashtra government finds itself embroiled in a political upheaval, former Lok Sabha secretary general PDT Achary speaks to India Ahead‘s Smita Sharma on the ongoing crisis. He explains the provisions under the anti-defection law, the possibility of Shiv Sena splitting into factions, and other eventualities of rebel MLA Eknath Shinde’s actions.
Q. If Shinde has support of two thirds of Sena MLAs, does he get to avoid disqualification under the anti-defection laws?
A. My answer is, no. In the anti-defection law, there is an escape clause, that is, merger. That means a person can escape disqualification under anti-defection law if his party that is the original political party merges with another party and two-thirds of the legislature, that is, the MLAs agree with the merger. In that case, they will be certainly exempted from disqualification under the anti-defection law but not otherwise.
So, two conditions need to be fulfilled: the original party, that is, the Shiv Sena in this case has to merge with another party, and two thirds of the members of the legislature will have to agree with that. They will be recognised as belonging to the party which has emerged after the merger.
Q. If two-third members agree to the merger, but party leader Uddhav Thackeray does not, will that merger still be valid?
A. If you strictly go by the anti-defection law under the Tenth schedule, it does not recognise MLAs merging with another party when their original party does not. If only MLAs merge, that is not a merger according to the law.
Recently, there was a decision by the Bombay High Court in a Goa case where the Congress members joined or merged with BJP. On that, Bombay HC gave a ruling that if the MLAs merge, that is good enough and should be seen as merger of the original political party. There is no decision on this directly by the Supreme Court.
However, earlier, in Jagjit Singh versus State of Haryana, the Supreme Court was dealing with a split issue. Earlier, there was a provision for split, which meant one-third of the members could go out of the party and the anti-defection law would not apply to them. That was a provision in the law previously. But it was misused so much, that the provision was done away with.
When split was part of the law, the Supreme Court had decided in this case the split has to take place in the original political party. Both the paragraphs are similarly worded even in the case of split. After that, one-third of members move out. Here, the merger has to take place between two political parties and then two-thirds of the MLAs agree with that. In that case SC had said that split has to take place in the original political party. So that ratio has to apply in this case also.
Q. If Shinde has two-thirds support, but Uddhav Thackeray says it does not make you leader of the original party, will it be a classic vertical split case or a fight about who controls the Shiv Sena?
A. The split in a party begins like this. Then after some stage, the breakaway faction will claim that their’s is the original party. And it will be denied by the original party and it goes on. Then it has to be decided by the Election Commission. The election symbol reservation and allotment order of the ECI. Under that order the EC will decide which faction is the real party.
But then the EC has to take into consideration many many factors. Not merely the strength of one faction in the legislature party. After all, political party is much bigger than the legislature party. Therefore, the Election Commission before deciding who represents the real party or which faction is the real party, they have to consider so many factors like structure of the party, support each factor enjoys at various levels of the party and so on and so forth. Only after that the EC can decide who represents the real party. That will take time.
Q. Does Uddhav Thackeray have any option of using some whip to expel these rebel leaders and thereby save the party?
A. There are two situations. The anti-defection law operates on two grounds. One is the member voluntarily gives up the membership of the party. That is one ground on which antis-defection law can be invoked and the person can be sought to be disqualified. He does not have to resign. But from his conduct you can deduce that this person has voluntarily given up on the membership of his party. That depends on the facts and circumstances of each case.
For example, yesterday they called the meeting of the Legislature Party just to ascertain the support they have. That is a very crucial meeting. Because it actually involves survival of the government. That becomes very crucial for the Shiv Sena. And certain section of the party, maybe a majority, they did not attend this meeting. Certainly if the leadership of Shiv Sena concludes that they have voluntarily given up membership of the party and on that ground they can file a petition because the Speaker has to consider it. That is one situation where Speaker’s intervention can be sought to disqualify these persons.
Second situation arises when there is a voting in the House. Suppose the Governors asks the CM to prove his majority on the floor of the house and naturally the CM has to do it. Then when voting takes place in the House this faction which broke away from the Shiv Sena they vote against the confidence motion moved by the government. In which case the confidence motion will lose and the government will go out of office as they will not have majority. But that does not prevent them from filing this disqualification petition against all these people who voted against the motion.
Q. So will this case land up in SC eventually perhaps?
A. Yes. Speaker has to decide at the initial stage. All questions relating to anti-defection law will be decided by the Speaker at the first stage as he is the designated tribunal. After that certainly the aggrieved party can go to the court and challenge the decision of the Speaker.
Q. Is there grounds enough right now to try and impose a President’s Rule?
A. No. This government is in office, nothing has happened in the assembly. This can happen either when the Chief Minister resigns, in which case the Governor gets the opportunity to explore the possibility of formation of the government. But that has not happened. He has not resigned nor has the governor asked him to prove the majority. As of now except what is happening in the political party, all those explosions which are taking place, nothing has happened in the House or Governor’s Office or from the CM’s side.
Q. Does this kind of resort politics repeating over the years not reduce democracy to a mockery and election process as a waste?
A. Certainly. I fully agree with you. This is very unseemly spectacle where members are taken away like captives and put up in some far off place where nobody can reach them and all that. This kind of things I think happens only in India among democratic countries. This only shows that the leadership has no faith in the loyalty of the members and the members have no loyalty towards the party.
Q. So is the anti-defection law without teeth? How do we prevent this kind of political corruption?
A. As they have deleted and omitted the provision related to split, which was being thoroughly misused. Similarly this merger provision which is being misused in many cases. In most cases where defection has taken place either retail or wholesale, this has ben invoked. Time has come to take a hard look at this and remove that provision. Nothing will be lost if this merger provision is done away with. Then it becomes straight case of defection. Whatever you do it becomes a defection, so you have to go. You have to go means there is no other disability. You will lose the membership and after that whenever the election happen you can come back.
Point is once you get elected on a platform, on a particular ticket, after that you cannot change your allegiance to that party. Because people have voted for you because you are a member of that party. If you are going to switch sides, naturally you have to resign and go back to people and seek the mandate form them.