Amongst bigger states, after Karnataka and Madhya Pradesh, the Maharashtra post-poll alliance named Maha-Vikas Aghadi between Shiv Sena, Nationalist Congress Party (NCP) and the Congress has fell prey to defection. Shiv Sena won 55 seats in the 2019 Legislative Assembly elections in Maharashtra and formed a post-poll alliance with the NCP and the Congress to form the government under the leadership of Shiv Sena party supremo, Uddhav Thackeray. However, after an internal rift, senior Shiv Sena party leader Eknath Shinde along with 40 MLA’s split from the Shiv Sena and formed the government with the Bhartiya Janata Party (BJP)—with which Shiv Sena had a pre-poll alliance, and Eknath Shinde took oath as the Chief Minister of Maharashtra on 30th June 2022 by winning the vote of confidence of 164 MLA’s out of 288 in the floor test.
On the brink of the rift between Uddhav Thackeray and Eknath Shinde, the latter along with 15 other MLA’s were served disqualification notices by the Deputy Speaker of the Maharashtra Legislative Assembly under Rule 6 of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 read with the 10th Schedule to the Indian Constitution. They were asked to submit their response within 2 days, however when they filed a writ to the Supreme Court, the Supreme Court vacation bench of Justices Surya Kant and Pardiwala granted protection to them through an interim relief granting them time till 11th July, 2022 to file the reply. With the final decision on the defection notices pending in the Supreme Court, the Supreme Court on 29th July, 2022 allowed the floor test to proceed. This in a way acted as a catalyst leading to the fall of the Maha Vikas Aghadi government and the coalition government of BJP and the rebel Shiv Sena MLA’s to be formed.
If we take a look at the numbers game before discussing the scenario in which the defection law will apply to the rebel Shiv Sena MLA’s, Shiv Sena won 55 seats in the 2019 state elections. The lawyer for Mr. Shinde, Senior Advocate Neeraj Kishan Kaul had submitted before the Supreme Court that Mr. Shinde has the support of 39 MLA’s out of the 55 elected MLA’s and also has the support of 9 independent MLA’s. which means that Uddhav Thackeray has only 16 MLA’s with him. As per the 10th Schedule, to save itself from the defection law, Mr. Shinde will require the support of at least 37 MLA’s (2/3rd of all elected members of the party).
The defection law on this point seems to be rather clear. Article 191(2) read with the relevant paragraphs of the 10th Schedule to the Constitution of India provides that
“Disqualification on ground of defection.—(1) Subject to the provisions of [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified from being a member of the House—
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.”
However, to save itself from defection, paragraph 4 provides, “Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under sub- paragraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group,
and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.”
It is imperative here to understand that two-thirds of the members of the political party has to merge with any other political party in order to save itself from defection. Though Mr. Shinde claims to have 40 MLA’s of Shiv Sena with him which is more than two-thirds (as proved by him in the floor test also) he along with the MLA’s will have to merge itself with any other political party to save itself from defection. As Senior Advocate Kaul appearing before the Supreme Court on behalf of Shinde has claimed that Shinde is not leaving the Shiv Sena and that they are the Shiv Sena has an overwhelming majority. It raises concerns as to whether they can claim to be real Shiv Sena and save itself from defection.
There are two backlashes that the Shinde camp can face here, firstly, the 10th Schedule speaks only of ‘Merger’ and not ‘Split’. In order to save themselves from defection the Shinde camp will have to ‘Merge’ with another political party, a ‘Split’ from the original political party, Shiv Sena and a claim to be the real Shiv Sena holds no legal force before the defection law. Secondly, the Sena Constitution, under Article XI (A) provides that the president of the Party, which at present is Mr. Uddhav Thackeray is the highest authority of the party and his decisions in all matters of the party shall be final. The Sena Constitution also provides that no other member or office-bearer has the authority to expel any member or office-bearer of the party except the President. Hence, the claim that Mr. Shinde’s camp is the real Shiv Sena and Mr. Thackeray who has a minority of 16 MLA’s are the ones defecting holds no legal sanctity.
The issue of the defection of 16 MLA’s to whom notices were sent by the deputy speaker, amongst other issues pertaining to the crisis, was heard by a full bench of the Supreme Court on 20th July, 2022 headed by the Chief Justice of India. The Chief Justice was of the opinion that certain issues will have to be referred to a larger bench, which would mean a constitutional bench, and has granted parties the time to file the issues. The next date of hearing is on 1st August, 2022.
There are two possibilities. One is that the rebel MLA’s can join any of the existing political parties to save themselves from defection. But as claimed by Mr. Shinde in the Supreme Court that they are not leaving Shiv Sena, it is most likely that they might join Raj Thackeray (he is the estranged cousin of Shiv Sena party president Uddhav Thackeray) led Maharashtra Navnirman Sena (MNS) which has only 1 seat in the Legislative Assembly. The reason for assuming that they can join MNS is because apart from Shiv Sena, MNS ideology is the closest to that of Balasaheb Thackeray, which the rebel MLA’s claims to be upholding. The second is that if the Supreme Court holds the 16 MLA’s guilty of defection then rebel numbers will fall to 26 which is less than two-thirds required by the anti-defection law. This would mean that the remaining 26 MLA’s will not be able to merge with any other political party and would be held guilty of defection. This would in turn result in a collapse of the current Eknath Shinde-led coalition government leading to a Presidential rule being imposed in the State.
As to what the Supreme Court would do, if there is no merger, the Supreme Court will have to hold the 16 MLA’s guilty of defection as the law on the point is quite clear. They cannot claim to be the real Shiv Sena as it has no legal sanctity as discussed earlier.
This is a guest post by Saifuddin Patel, who is PhD Scholar and Doctoral fellow at O.P. Jindal Global University (JGU).