Anti Defection Law: Is it applicable on Shiv Sena?

11 May 2023  Read 642 Views

Today, the Supreme Court of India (May 11th, 2023) delivered a significant judgment relating to the ongoing political crisis in Maharashtra. Since 2019, this politically active State has been in the news after Shiv Sena, Nationalist Congress Party (NCP), and Indian National Congress (INC) formed an unlikely alliance called Maha Vikas Aghadi.

The alliance has been plagued by internal conflicts and power struggles ever since, leading to multiple instances of political instability and uncertainty. In 2022, these internal conflicts led to a split in Shiv Sena, resulting in the formation of two parties: Shiv Sena (Uddhav Thackrey) and Balasahebanchi Shiv Sena (Eknath Shinde) and matters eventually reached the Apex Court.

In this article, we will trace the events that led to the judgment and what was, finally, the outcome as held by the Supreme Court of India.

What is Anti defection law?

Before we delve into the judgment, it is important to understand the law dealing with defection issues. The root of the Maharashtra political crisis can also be traced to the defection of members, leaving one party to join the other after winning elections, resulting in political chaos. The procedure to prevent this is provided under the 10th Schedule of the Indian Constitution, commonly known as the anti-defection law. Under this law, a Member of Parliament can be disqualified if certain conditions mentioned in the Schedule are fulfilled, but some exceptions exist. Members can be disqualified for multiple reasons, including, but not limited to, members voluntarily giving up their membership to the political party they belong to.

Original Party v Legislature Party

Original Party is the political party to which a Member belongs. It can be the one outside of the House. Whereas the Legislative Party is the political party which consists of the elected Members of the House belonging to one political party. For instance, the Original Party of a Member can be Shiv Sena, whereas the Legislative Party of such a member can be the Maha Vikas Aghadi.

Shiv Sena v Shiv Sena: What is the Maharashtra Political Crisis?

  • Eknath Shinde and 37 MLAs made Shinde the leader of the Shiv Sena legislature party who was declared rebel members after suspicion of cross-voting

  • Shiv Sena filed a petition against the rebel MLAs before the Deputy Speaker for disqualification of Members.

  • A no-confidence motion against the Deputy Speaker by two independent MLAs and signed by 34 MLAs get rejected for being sent anonymously.

  • Disqualification notice sent to rebel MLAs by the Deputy Speaker

  • Ekhnath Shinde approached Supreme Court against the rejection of the no-confidence motion

  • Supreme Court stayed the order of disqualification proceedings and provided some time to rebel MLAs to file a reply

  • Governor of Maharashtra ordered a floor test, gets challenged by Thackrey-led Shiv Sena before the Supreme Court

  • Supreme Court refused to pass a stay order for the floor test

  • Uddhav Thackrey resigned as the Chief Minister of Maharashtra

  • The Supreme Court refers the issues of both the factions to a five-judge Constitution Bench (Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors.)

What were the Issues before the Supreme Court?

  • What is the validity of the Governor’s decision to conduct a floor test of Uddhav Thackrey?

  • What is the validity of the Governor’s decision to ask the rebel faction leader Eknath Shinde to become the Chief Minister of Maharashtra?

  • What power does the Speaker have under the 10th Schedule? Can he act under the Act if a notice for his removal is pending?

  • Whether the decision of the five-judge bench of the Supreme Court in the Nabam Rebia case required to be revisited?

Judgment of Supreme Court

  • The Apex Court held that the decision of the Governor to conduct a floor test was incorrect as the Governor had not have enough material to conclude that Uddhav Thackrey had lost the confidence of the House.

  • The decision of the Governor to ask the rebel faction leader Eknath Shinde to become the Chief Minister was correct as Uddhav Thackrey did not face the floor test and resigned from the office of Chief Minister.

  • The Court observed that it cannot order the restoration of Uddhav Thackrey's government because he resigned before facing the floor test.

  • The Court referred the Nabam Rebia case to a larger bench of seven-judge to deal with the issue of the power of Speaker under the 10th Schedule.

Analysis of the case

This judgment by the Supreme Court of India is important as it clarified that the decision to call for a floor test by the Governor has to be on strong grounds. Even if the case of Nabam Rebia got referred to a larger bench, the Court was correct in upholding the decision of the Governor to declare Shinde as the CM because the resignation of Uddhav Thackrey left the floor open for Shinde. Had he not resigned, the outcome of the whole Maharashtra Political crisis could have been different.

What are your opinions on the judgment? Comment us below!­čśŐ

About the Author: Anubha Mishra | 9 Post(s)

She has completed her BA.LLB. from Raipur and is currently pursuing LL.M from TISS Mumbai. She also has a practicing experience of 2 years at District Court, Raipur, as a Junior Advocate.

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