Anti-defection law, floor test in focus as BJP springs a surprise
Technical and legal questions confront the government, which still has time to face a floor test. Its survival will depend on whether Ajit Pawar and his supporters manage to overcome the threat of disqualification under the anti-defection law.Updated: Nov 24, 2019 11:09 IST
Almost a month after assembly election results were announced in Maharashtra, a government was finally sworn in on Saturday morning with Bharatiya Janata Party leader Devendra Fadnavis as chief minister and the Nationalist Congress Party’s Ajit Pawar as his deputy, but the situation remains fluid in the state.
Technical and legal questions confront the government, which still has time to face a floor test. Its survival will depend on whether Ajit Pawar and his supporters manage to overcome the threat of disqualification under the anti-defection law. NCP leader Sharad Pawar has already described his nephew’s conduct as an act of indiscipline and against party’s interest.
The law allows a section of a party to break away and be recognised as a separate group in the legislature provided it has the support of at least two-thirds of the party’s legislators.
Legal experts say the conduct of Ajit Pawar and MLAs who have extended support to the Fadnavis government can lead to their disqualification under the anti-defection law as envisaged under the tenth schedule. However, the process will formally kick in once the MLAs take oath and a speaker is nominated. Under the law, an assembly speaker is the decision-making body, but his or her final verdict is subject to a judicial review.
According to Lok Sabha secretary general PD Achary, an assembly gets legally constituted the day Election Commission announces results.
So acts of an MLA post declaration of poll results will have to be viewed by the speaker while deciding the disqualification petition moved by NCP.
“The anti-defection law applies to an elected representative on the day the results are declared. The law applies to the elected representatives since that time onwards. The NCP can formally file a petition now also before the speaker’s office, citing instances of anti-party activities by the broken faction,” Achary explained.
Added to the Constitution as the tenth schedule by the 52nd amendment during Rajiv Gandhi’s tenure as the Prime Minister in 1985, the anti-defection law aimed to check the ‘Aya Ram, Gaya Ram’ (frequent defection by legislators) phenomenon in Indian politics.
The Statement of Objects and Reasons of the Fifty-Second Constitution Amendment Bill, 1985 read: “The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it.” There are two grounds for disqualification. First, if a lawmaker “voluntarily gives up membership of a party. A member can also incur disqualification when he/she votes (or abstains from voting) contrary to the directive issued by the party.
Achary says while the first ground speaks of conduct outside the assembly, the second one is an act of defection committed inside the House. Supreme Court advocate Vikas Singh holds a similar view. And, so does senior advocate Ranjit Kumar. Singh says: “The anti-defection law kicks in not from the day oath is given but as soon as the EC notifies results and issues the certificate. An oath is relevant only for the purpose of Assembly’s tenure.”
Kumar says the anti-defection law kicks in the moment a lawmaker defects. But, a show cause notice has to be issued, which in this case is not yet done. “A petition can be filed immediately, although adjudication can only take place once a formal speaker is in place,” explains the senior advocate.
Another Supreme Court lawyer Sai Krishna opines that the law becomes effective the minute an elected candidate moves against a party’s decision. He too feels NCP should file the disqualification petition immediately, highlighting the anti-party conduct, even as there is no formal speaker in the Assembly. “A representation can be submitted to the governor or the EC. In case the same MLAs violate the whip then both the grounds under Tenth Schedule would apply against them,” he explains.
Ajit Pawar and his supporters have a chance to escape disqualification if two-thirds of the NCP lawmakers extend support to Fadnavis.
“It will all come down to the numbers. However, this scenario will give rise to an intra-party dispute that can only be decided by the EC,” explains senior Supreme Court advocate Gopal Sankaranarayanan.