Are There Any Legal Options For Shiv Sena-Cong-NCP in Maharashtra?
Would the anti-defection law have any effect in Maharashtra? Can Supreme Court actually intervene in this matter?
In a dramatic, late night twist, Devendra Fadnavis has become Chief Minister of Maharashtra after Ajit Pawar, nephew of Nationalist Congress Party supremo Sharad Pawar, pledged the support of NCP MLAs for a BJP government in the State.
Fadnavis took oath as CM around 8 am on the morning of Saturday, 23 November, followed by Ajit Pawar’s swearing-in as the deputy CM. They had gone to meet the Governor of Maharashtra around 2 am in the night, allegedly with letters of support from 54 NCP MLAs.
Following this meeting, President Ram Nath Kovind revoked his proclamation of President’s Rule at 5:47 am, paving the way for Fadnavis to form the government.
Sharad Pawar has condemned the move and stripped Ajit Pawar of his position as leader of the legislative party of the NCP. The Shiv Sena and the NCP have reiterated their alliance at a press briefing, as has the Congress. Suggestions have been made that these moves could be challenged in court as violations of the anti-defection law.
But what happens now? Does the anti-defection law have any effect here? And can the Supreme Court actually intervene in this matter?
What Does the Anti-Defection Law Say?
India’s anti-defection law is contained in the Tenth Schedule of the Constitution.
With regards to what has happened in Maharashtra, the relevant section of the anti-defection law is Paragraph 2(1). According to this provision, a member of a House (MP/MLA/MLC) belonging to a particular political party can be disqualified from their membership of that House if they:
Voluntarily give up membership of their political party – Para 2(1)(a); or
Vote or abstain from voting in that House contrary to the directions of their political party – Para 2(1)(b).
There used to be two exceptions to this rule: splits and mergers.
If at least 1/3 of a political party decided to split away, then those who have split away cannot be disqualified under Paragraph 2(1) of the anti-defection law.
This exception, however, was removed in 2003 by the 91st Amendment to the Constitution, leaving mergers as the only real exception to the rule.
If 2/3 of the political party agree to merge with a different party, again, those who join with the merger cannot be disqualified under Paragraph 2(1) of the anti-defection law.
It should be noted that an MLA does not need to resign formally for them to be said to have voluntarily given up membership of their political party, this can be inferred from their conduct. For instance, the Karnataka rebel MLAs who brought down the Congress-JD(S) government were disqualified by Speaker KR Ramesh Kumar even though they’d resigned as MLAs altogether. The Supreme Court upheld the disqualification.
Does the Anti-Defection Law Apply Here?
It is unclear at this point how the anti-defection law could be considered to have been violated here.
Speculation is still rife over what letters of support from NCP MLAs Ajit Pawar submitted to the Governor. Some reports have claimed, based on statements of NCP leaders like Nawab Malik, that the MLAs had signed letters of support for the Shiv Sena-NCP-Congress alliance government, and these were then submitted using a different covering letter.
This would not mean that the MLAs are disqualified in any way, unless they stand by these alleged letters of support, in which case the MLAs could be considered to have voluntarily given up their membership of the NCP, thereby violating Paragraph 2(1)(a) of the Tenth Schedule.
It does not appear to be the case that a party whip was issued directing them to vote for the tripartite alliance and not to support the BJP. If such a party whip had been issued, then anyone who supports the BJP will have violated Paragraph 2(1)(b) of the Tenth Schedule.
However, both these scenarios also then run into the exceptions to the anti-defection law. For a BJP-Ajit Pawar NCP government to operate, this would need at least 40 NCP MLAs to join with the BJP. This is more than enough to satisfy the requirements of a merger under the anti-defection law, which means the MLAs would again not be disqualified.
As the NCP has 54 MLAs, the cut-off for a merger is 36.
Of course, if the number of NCP MLAs who have joined the BJP is only the 10 or so who attended the swearing-in, then the BJP will neither have enough votes to secure a majority, nor to protect the NCP MLAs as a merger.
The state of play is expected to be made clearer after a meeting of the NCP later on Saturday.
Could the Supreme Court Intervene?
While the manner in which the new Maharashtra government has been informed is an example of political skulduggery, it does not look like the law has been violated. If the NCP MLAs come out and say that their letters of support for a Shiv Sena-NCP-Congress government were misused, then maybe there could be grounds for the apex court to intervene, as Ajit Pawar would have committed fraud.
The only other way to get the court involved is perhaps to ensure that a floor test is conducted in time. In previous cases, in Karnataka and Goa, the Supreme Court had ordered floor tests within 24-48 hours, reducing the time given to the parties staking a claim to ensure that there is no horse trading.
In the case of Maharashtra, it is not yet clear when the Governor has said a floor test should happen to test the strength of the BJP-Ajit Pawar NCP government. Nawab Malik said the NCP has been told that this will take place on 30 November.
If the Supreme Court is persuaded to get involved, at best, one could see them ordering a floor test at a sooner time, given the Fadnavis-Ajit Pawar combine claims to have the support of over 170 MLAs already. The way in which MLAs would then vote would indicate whether the 54 NCP MLAs actually supported the new government, or whether there was a merger.
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