Maharashtra Government formation: Anti-Defection angle

Reading time: 6-8 minutes.

The Maharashtra State Government Formation was nothing short of a rippling controversy. As our country witnesses an arc which can arguably be categorised as one of the most interesting times for our democracy, Maharashtra State politics and the Hon’ble Governor’s office got the taste of one of the most adverse situations Indian democracy has ever dared produce.

As the situation finally is hoped to be rested at Shri. Uddhav Thakeray holding office, with the position of the Hon’ble Chief Minister of Maharashtra, by virtue of his party, Shiv Sena, forming a post-poll alliance with the Indian National Congress along with the National Congress Party, forming an alliance by the name of “Maha Vikas Aghadi” (literally translating to Mega Development Frontrunners); the political scenario in Maharashtra can be said to be at a cool down stage and administration can finally continue by virtue of the status quo administration due process- or can it?

Procedure for the formation of Government:

The Maharashtrian State follows a Legislative Assembly based procedure when it comes to Government formation. For an absolute majority to be formed, a party is supposed to garner a grand total of 144 seats out of the 228 seats in the Legislative Assembly.

These seats can be procured by virtue of post-poll alliances, pre-poll alliances or by sheer single party majority. When the party/alliance gets the requisite seats for formation of government, it provides the letters of support to their respective Governor, who then invites the aforementioned party/alliance to form a Government with their respective candidates as Chief Minister.

After the government is formed, the Vidhan Sabha conducts a floor test which is supervised by the pro-tem (temporary)/permanent speaker and hence, a government is formed in the state of Maharashtra.

Background of this Issue:

This issue can be best explained through the chain of events demarcated by virtue of the time at which they took place.

21.10.2019: Elections to the Fourteenth Maharashtra Legislative Assembly were carried out.

24.10.2019: The Bhartiya Janata Party emerged as the Single Largest Party with 105 seats followed by the Shiv Sena emerging as the second largest party with 56 seats. The NCP emerged as the third largest party with 54 seats and the INC secured 44 seats.

09.11.2019: The Hon’ble Governor invited the BJP to indicate willingness to form the Government while giving it 48 hours to prove that it has the requisite majority.

10.11.2019: The BJP expressed its inability and declined to form the Government. Thereafter, the Hon’ble Governor, on the very same day, asked the Shiv Sena, to convey its willingness and ability to form the Government by granting it 24 hours to demonstrate its majority.

22.11.2019: The Maha Vikas Aghadi was announced at a press conference and it was further announced that it was unanimously agreed that Shri Uddhav Thackeray was to be named as Chief Minister.

23.11.2019: The Raj Bhavan, in a makeshift and hurriedly convened swearing-in ceremony, administered oath to Shri Devendra Fadnavis of the BJP as Chief Minister of the State and further to Shri Ajit Pawar of the NCP as Deputy Chief Minister.

26.11.2019: The Supreme Court announced their verdict and ordered for a floor test a very next day, on which followed the immediate resignation of Shri. Ajit Pawar, and Shri. Devendra Fadnavis.

3.12.2019: Uddhav Thakeray takes oath as CM of Maharashtra with the support of the Maha Vikas Aghadi.

Anti-Defection law:

This switching of party done by the MLAs of NCP including the Legislative Unit leader, Shri. Ajit Pawar begs the question, can this constitute Defection under the Anti – Defection law which was inserted into the Indian Constitution in 1985?

To answer that question, we must consider what constitutes as defection in general. The legislative intent of the Anti – Defection law was brought into place to curb voluntary giving up the membership of a party or disobeying the directives of the party leadership on a vote.

The Anti – Defection Law was inserted though the Tenth Schedule of the Indian Constitution for the purpose of disqualifying MLAs which acted unethically and against their Party’s principles.

The Law relating to this principle and issue at hand:

Even though the nature of the Anti-Defection law may seem as extremely straight forward, the law does come with a number of exceptions. For example, it does not disallow merger of parties provided that such merger has been authorized by the 2/3rds of the MLAs of the Party.

Hence, while relating it to this issue it is important for us to note that a possible defection case, if filed, would largely depend upon the number of MLAs that authorized such a move by Shri. Ajit Pawar. However, since the data on that is unclear, no conclusive statement can be made.

Moreover, it is also interesting to note the interpretations laid down by the Supreme Court in the cases of Ravi S. Naik vs Union of India (1994 AIR 1558) and G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras (1996 AIR 1060).  

In these cases, it was held by the Hon’ble Court that the phrase ‘Voluntarily gives up his membership’ has a wider connotation than resignation. The law provides for a member to be disqualified if he ‘voluntarily gives up his membership’.

However, the Supreme Court has interpreted that in the absence of a formal resignation by the member, the giving up of membership can be inferred by his conduct. In other judgments, members who have publicly expressed opposition to their party or support for another party were deemed to have resigned.

A possible argument could be made that the actions done by Shri. Ajit Pawar could be in contravention with the constitutional principles laid down by the cases of Ravi S. Naik vs Union of India and G. Viswanathan v. The Hon’ble Speaker Tamil Nadu Legislative Assembly, Madras.

Application of Anti – Defection Law “What experts think”:

Ajit Kumar Sinha (Senior Advocate) – “If it is more than a split and is by two-third or more, then it will be difficult to apply anti-defection law,” he said adding, “Disqualification does not apply in case of merger if it is by two-third or more.”

Vikas Singh (Senior Advocate) –  “Supposing in this case, the faction which claims to be real NCP, (objects to the former union), then a question may arise and the Election Commission will have to take a call which is the main NCP for the purpose of anti-defection law. This will also be a long-drawn process. Main NCP will be the one which has the majority of MLAs. Anti-defection law will apply. It does not matter whether MLAs have taken oath or not. This is all posturing up.”

Rakesh Dubey (Senior Lawyer and Constitutional Expert) –  “The anti-defection law has no impact at time of formation of the government. The government is always formed before the oath of MLAs and MPS. Later, somebody will have to move an application before the assembly speaker alleging defection, if any.”

Conclusion: A probable way forward

This case cannot be studied without drawing its obvious parallels to the B.S Yeddyurappa case of Karnataka (also known as the Dr. G. Parmeswara case). The most probable conclusion would be that, similar to that case, the defection petitions filed in the court, if filed, would not be fruitful.

The main thing to take into consideration here is that the MLAs under the Maha Vikas Aghadi have been procured through intense negotiations and deliberations and it could be possible, just like it happened in the Yeddyurappa case, that BJP would file for a No-Confidence motion in the house and win their Government back. Other than that, looks like the State of Maharashtra is all set for full term governance by the Maha Vikas Aghadi.

Author: Adhit Kulkarni from DES Law College, Pune.

Editor: Anna Jose Kallivayalil from NLU, Delhi.

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