As Maharashtra finds itself in the throes of yet another political crisis, a key question emerges:
Can Ajit Pawar and the 8 other MLAs who joined the National Democratic Alliance government led by Eknath Shinde, be disqualified?
At a press conference late Sunday, Maharashtra NCP president Jayant Patil said that the party had already moved disqualification petitions against the nine MLAs, through an email.
“Their act is illegal. A physical copy will also be submitted soon. We have requested the Speaker Rahul Narvekar to give us a hearing at the earliest. The moment they went against the party's policy, they are disqualified technically,” Patil added.
So, is what they did indeed “illegal”? Can they be disqualified for it under India’s anti-defection law? What are the grounds for defection? The Quint spoke to legal experts to understand.
Quick Recap & The Disqualification Petition
National Congress Party (NCP) leader Ajit Pawar on Sunday took oath as Deputy Chief Minister of Maharashtra, thus joining the National Democratic Alliance government led by Eknath Shinde.
He will share the post of Maharashtra’s Deputy CM along with BJP’s Devendra Fadnavis. While Pawar is said to have the backing of at least 40 MLAs, eight have been sworn in as ministers at the Raj Bhavan, joining the government with him.
Hours later, a resolution passed by the NCP state discipline committee read, “The fact that these defections were done in such a secretive manner, without the knowledge or consent of the Party President, amounts to desertion of the party, which in turn invites disqualification.”
Experts The Quint spoke to pointed out that to be able to understand whether the nine can invite disqualification, it is essential to delve into the grounds for disqualification under India’s anti-defection law.
What Are The Grounds for Disqualification Under the Anti-Defection Law?
According to India’s anti-defection law (contained in the Tenth Schedule of the Constitution), a member of a House belonging to any political party shall be disqualified if they have:
Voluntarily given up their membership of such political party
Voted or abstained from voting, contrary to the directions of their political party
Now, voluntarily giving up party membership can happen even if there has been no formal resignation by the MLA in question. It can, in fact, be inferred by their conduct, as pointed out by Senior Advocate Sanjoy Ghose.
“For instance, a person who starts attending meetings of a rival political party, who starts associating with the rival political party, who starts prescribing with the statements of a rival political leader, who votes in accordance with the rival party’s agenda can be deemed to have voluntarily given up membership,” Ghose noted.
Voting or abstaining from voting in the house contrary to directions of their political party, as explained in this previous article by The Quint, is a little more straightforward.
During votes on legislation or issues like no-confidence/floor tests, political parties employ a mechanism known as 'whips' to provide instructions to their legislators regarding voting decisions.
For example, in the case of a no-confidence vote against the government, the governing parties will instruct their legislators to vote against the motion, while opposition parties will instruct their legislators to vote in favor of the motion.
Regardless of the outcome of the vote, any Member of the Legislative Assembly (MLA) who fails to adhere to these instructions may face disqualification under the Tenth Schedule.
Interestingly, however, these grounds for defection don’t apply in a blanket manner and there are a few exceptions.
What are the Exceptions To These Grounds?
As the law currently stands, a member of a House who was elected to it as part of a political party cannot be disqualified if their original political party merges with another party.
But for a merger to be valid, 2/3 of the members of the legislature party (ie, number of MLAs/MPs the party has) have to first agree to the split and then merge with the new party.
"It is only if the parent party splits, and such split is assented to by two thirds of the legislature party and such a party faction merges with another political party, that the defence comes into play," Senior Advocate Sanjay Hegde had written previously for The Quint.
So, in Pawar’s case, at least 35 MLAs out of 53 have to agree to it.
According to what Supreme Court Lawyer, Shrutanjaya Bhardwaj said, “Ajit Pawar’s move can’t qualify as a merger because he has not yet formally announced that he is merging with the NDA.”
“There are two parts to this – he has to first say that he is moving away from the NCP and then say that he is joining the NDA. Up until now he has done neither. All he has done is staked claim to being the real NCP,” Bhardwaj added.
Who Is The 'Real NCP?' Lessons From Shiv Sena Verdict
“Most of the MLAs and leaders are with us. We, as NCP, decided to join the government to resolve the issues of the people. We will contest all the upcoming elections as NCP on its election symbol — the clock,” Ajit told the media after the swearing in.
Last year, when he split the Shiv Sena, Eknath Shinde claimed similarly that his faction was the original Shiv Sena and not Uddhav’s faction.
However, experts explained that the Supreme Court’s May 2023 judgment in the Shiv Sena case, addressed exactly this and clarified the procedure around this. As Advocate Bhardwaj said:
- The "real" political party is to be identified by the Election Commission — for which the ECI has complete freedom to devise its own tests.
- The ECI can decide this before or after the Speaker's decision on disqualification, and three, that the ECI's decision will have prospective effect, i.e., it will be effective from the date of the decision, not earlier.
- So, until ECI decides the issue of the real NCP, Sharad Pawar continues to be the NCP.
“And The NCP (under Sharad Pawar) has alleged that Ajit Pawar and the eight others have voluntarily given up their party membership by acting against the interests of the party. That's the only question the speaker will have to decide now based on the rules of the party,” he added.
So, Can Ajit & 8 Others Be Disqualified?
Technically, yes – there are strong grounds to disqualify Ajit Pawar, experts told The Quint.
“Yes, he can be disqualified, if he acts contrary to the actions or resolutions of the political party on whose symbol he has been elected. This will ultimately depend on the internal rules of the party ,” Ghose noted.
But there are caveats, according to Ghose.
“Sharad Pawar has not expelled Ajit Pawar and the 8 others yet. Nor has the Ajit-led camp explicitly said that Sharad Pawar is not their leader. Both sides are maintaining a smokescreen so it is difficult to say with certainty as to what is happening,” he noted.
At the time of writing this story, while Sharad-Pawar led NCP sacked MPs Praful Patel and Sunil Tatkare for “anti-party activities" along with seeking their disqualification, there had been no official communication regarding the sacking of the 9 MLAs (including Ajit Pawar) who swore in on Sunday, 2 July.
Senior Advocate Sanjay Hegde differed slightly on this. According to Hegde, even if the nine have not been expelled, disqualification proceedings against them can still be initiated.
"The party can say that these are our people but they have engaged in acts of defection, so now they must be disqualified," he said.
"While the law is clear on this, the working of the law might actually differ. It'll depend on how fast the speaker decides on the disqualification -- it is important to remember here that the speaker is yet to decide on the defections from the Uddhav Thackeray camp of the Shiv Sena," he added.
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