Introduction:
Maharashtra is one of the richest states in India. But the same state is in political turmoil as the Chief Minister’s chair and the government is in jeopardy. The government started to shatter when Shiv Sena leader Mr Eknath Shinde was unavailable after the elections of the Legislative Council in the State. Since then, all the possible and obvious players played the political game which resulted in total change in the Government. On the one hand, the Uddhav Thackeray-led government was trying for protection under the Anti-Defection law whereas, on the other hand, the Eknath Shinde-led rebel group was all set to form the new government. The question that arises here is what exactly defection is? What are the provisions under the Anti-Defection law? What are the loopholes in the current law and most importantly, who won the political game in Maharashtra?
What is defection?
When a politically elected public representative from a party changes his loyalty from the party to a politically non-elected party, this action is known as defection under law. In other words, when a politician (elected representative) leaves his political party due to personal or political differences and votes against the party without lawfully leaving the party is termed defection. A party is then free to take action against the alleged party member to disqualify him or remove him from the party membership. This protection is given in Anti defection law.
Circumstances that led to the formulation of law:
When democratic countries allow their citizens to select a representative, they will surely vary in choices. This leads to no clear majority for any one party or independent candidate leading to various pathways for a non-elected party to turn the elected party’s fate. One such tactic is defection. As every coin has two sides, so does this law. It can make a well-needed change in the Government or can also bring unnecessary political turmoil. This all started in 1957 when Congress emerged as a very strong party. Almost 419 party men from other parties left their party to join the leading party-Congress. At this very particular time, a need was felt to constitute a law that would degrade the chances of the negative side of the coin. During the same period, a committee led by Y.B Chavan also suggested an Anti-Defection bill which was subsequently rejected by the majority government. In 1984, after a clear majority; then Prime Minister Rajiv Gandhi proposed a new Anti-Defection bill in Parliament followed by approval by both houses. The bill was enacted and came into effect on 18 March 1985. The law laid down the process of disqualifying elected members for the remaining term who defected either by resigning or defying party leadership or remaining absent on a crucial vote.
Constitutional provisions under Anti-Defection law:
Anti-defection law was added to the constitution under the 10th schedule in the Indian Constitution. The whole schedule is divided into 8 paragraphs.
- Paragraph 1 explains all the terms in legislature such as a house, parent party, political party, etc.
- Paragraph 2 constitutes conditions for the disqualification for defection by a party member.
-If a member voluntarily gives up or leaves the party.
-He does not obey the directions of his parent party.
-Remains absent in legislature for a crucial vote.
-After the elections, he joins another political party.
- Paragraph 3 was enacted but was later omitted in 2003 after the 91st
- Paragraph 4 highlights the importance of the majority in case of a merger. If 2/3rd of party members move for a merger then the party member cannot be disqualified.
- Paragraph 5 provides safety for the speaker, chairman and deputy chairman from disqualification based on a defection.
- Paragraph 6 gives power to the chairman and speaker of the house to give a final decision over the discussion of the defection of the member.
- Paragraph 7 bars the jurisdiction of any courts in case of disqualification of a member.
- Paragraph 8 empowers the chairman and speaker to frame rules revolving around the defection of a member.
The Maharashtra episode:
This whole chapter has its roots in the 2019 State elections where BJP (Bharatiya Janta Party) and Shiv Sena contested the State elections jointly under Mahayuti as an alliance and NCP and INC fought under Maha Aghadi. Here BJP won 105 seats, Shiv Sena was able to grab 56 seats, NCP (Nationalist Congress Party) won 54 seats and INC (Indian National Congress) won 44 seats. Differences between Mahayuti began after the declaration of results in the form of who will become Chief Minister of the Financial Capital. After a lot of tussles and political drama, a new alliance arose between Shiv Sena, Congress and Nationalist Congress Party was known as Maha Vikas Aghadi. This was the new government formed in Maharashtra with Sena President Uddhav Thackeray as the new Chief Minister. The then leader of Shiv Sena Mr Eknath Shinde was not in favour of this alliance and always wanted a BJP-Sena coalition.
The matter came into a highlight for the very first time on 10 June 2022 during the Rajya Sabha elections. In this election, BJP was supposed to win 4 seats and Sena according to its seats was supposed to win 6 seats but eventually, exactly the opposite happened. Sena won 5 seats and BJP won 5 seats as well. This rose the possibility of Cross voting. Soon after the elections, Mr Eknath Shinde and around 13 MLAs were not available. Nor is personal nor on call. Soon after the series of events, Eknath Shinde claimed the support of nearly 40 MLAs sitting with him firstly in Surat and then in Assam demanding the BJP-Sena coalition. Shine required only 37 MLAs to prevent the improvement of the Anti-Defection law (3/4th members). Soon, the Supreme Court ordered floor testing. But, before the floor testing that was scheduled on 30th June, the then Chief Minister Uddhav Thackeray resigned from his post of Chief Minister of Maharashtra and also from Maharashtra Legislative Council as well.
After the resignation, on 30th June; Eknath Shinde joined hands with BJP, once again forming a new government in Maharashtra. This time, the position of Chief Minister was offered to rebel group leader -Eknath Shinde which subsequently he accepted and Maharashtra got its new Chief Minister-Eknath Shinde with BJP leader Mr Devendra Fadnavis as Deputy Chief Minister of the state.
What are the loopholes in the law:
India follows representative democracy. But the Anti defection law contradicts this very ideology. After elections, the MP or MLA has to blindly follow the party. This leaves the member with no option of freedom of vote but to be a puppet in the hands of the parent party.
Also, an MP should examine all the laws, bills, policies and budgets. But this law has made the MP just another person needed for the majority and nothing else. Neither he can oppose a bill which he wants to nor can he express it in front of the houses.
The chain of accountability is always checked through various sessions, motions etc. This is now a myth with no opposition if you have a majority.
The speaker also plays a controversial role as he has the authority to decide if the act is defection or not, within 3 months. But as it is not mentioned as to what will happen if he doesn’t confine to the deadline, leads the road to loopholes.
Also, if 2/3rd members of the same party agree to a dispute against the parent party, then it would not be counted as defection but will be considered a merger. This does not count as split and this is what has happened in the Maharashtra episode.
Proposed changes:
- Firstly, the judiciary should intervene in such matters where people’s representation is at state. More importantly, the judgement should listen to in express judgement-given within 60 days.
- The member should have the option to either propose his will or can simply submit his resignation in case of a difference of thoughts. He can seek a fresh mandate of the people after resignation.
- These solutions will truly benefit the representatives to have a strong hold over their opinions and can check on malpractices as well.
Conclusion:
A law as said can make or break. This law though important needs some serious changes or else we will not be able to separate from dictatorship. In Maharashtra, the whole episode pointed out the importance of power. Today, the politicians may have won, but is it a win for the people -the ultimate rulers? Was Mr Eknath Shinde the real choice of people when they voted for Mahayuti? The answer is quite clear. So yes, today the political scenario has won but it is time to check whether it is a democracy or a hidden dictatorship to check if the citizens do not face failure.
Author(s) Name: Vaishnavi . A. Sainee. (Jagran Lakecity University, Bhopal)
