Interview: How can Eknath Shinde and his Shiv Sena rebels escape punishment under the defection law?

Maharashtra’s Maha Vikas Aghadi, led by Chief Minister Uddhav Thackeray of the Shiv Sena, appeared to be on the brink of collapse on Wednesday after senior leader, Eknath Shinde declared that he had the backing of more than two-thirds of the party’s 55 legislators and no longer supports the government.

The rebel has claimed that he and the other legislators who have taken refuge with him in Assam are the real or official Shiv Sena.

But who is the arbiter of that claim? How does the anti-defection law, which penalises legislators for switching parties, come into play in a situation like this? Is there a need to amend the anti-defection law?

For clarity on these questions, Scroll.in spoke to PDT Acharya, the former Secretary General of the Lok Sabha.

Everyone is talking about the magic number of 37. What is the significance of this number?

A lot of wrong information about the anti-defection law is circulating in the media. Let me clarify it. They can escape the anti-defection law [which would disqualify them] only if they merge with the Bharatiya Janata Party. For a merger there are two conditions:

1. The original party, the Shiv Sena, merges with the BJP.

2. Two-thirds of the MLAs agree to the merger. These 37 members cannot function as a group. They have to merge with the BJP. They do not know it.

Eknath Shinde has said his faction is the real Shiv Sena. Who decides which Shiv Sena is the real or official one? Who is the arbiter? Is it the speaker of the Election Commission?

Which is the real Shiv Sena will be decided by the Election Commission and nobody else. When there is a split in the party and this is a de facto split, and both factions claim to be the original, then it goes to the Election Commission. Shiv Sena is a recognised party by the Election Commission, so naturally the EC will decide which is the original or real party. The legislature has nothing to do with it, the speaker has nothing to do with this.

On what basis does this, typically, get decided by the Election Commission?

The Election Commission decides this on the basis of rules dealing with allotment of symbols. All the disputes that arose in different parties since 1969, the Congress party split, were decided by the Election Commission. But there are also many Supreme Court judgements, because naturally when the Election Commission decides, one faction is always unhappy and goes to the Supreme Court. Once the Supreme Court gives its judgement, that is how the matter ends.

This is also going the same route. The Election Commission is the legal authority to decide which faction is the real one and it does so on the basis of the structure of the party and other criteria like who has control over the party. The Legislature party is nothing: it is just a part of the main political party. So who has control over the members of the party, of the party structure will decide this.

So, how many legislators a faction has, is not the main factor that decides which faction is the real Shiv Sena?

You are correct. After all, the party is much bigger than this. The Legislature party is only a wing of the political party.

What are the probable scenarios that could play out in Maharashtra now?

One is that the government recommends dissolution of the assembly to the governor. Because the government, the Maha Vikas Aghadi [coalition of the Shiv Sena, Nationalist Congress Party and Congress], has a majority as of now, it has not been proved otherwise, so the governor is bound to accept that recommendation.

The second one is: Eknath Shinde, along with BJP legislators, go to the governor and say they have withdrawn support to the Maha Vikas Aghadi government, then the governor will ask the chief minister to prove his majority on the floor of the house. If he loses the vote, the governor will ask the opposition leader if he is in a position to form a government.

There is another scenario. The Shiv Sena had called for a meeting today and if these members who are believed to have broken away did not attend the meeting, then the Shiv Sena can take the ground that these people have voluntarily given up membership of the party. This is one of the grounds of disqualification.

Uddhav Thackeray can say that these members did not attend a crucial meeting on which the survival of the government depended and because they didn’t do so, they can be deemed as having disassociated with the party and voluntarily given up party membership.

They can seek disqualification on these grounds.

If it happens, what is the defence?

These MLAs will claim they have the numbers to get exemption from the anti-defection law by way of paragraph 4, that is merger. But merger becomes available only when the Shiv Sena merges with the Bharatiya Janata Party. If these two-third members agree to the merger and Shiv Sena party led by Uddhav Thackeray decide to merge with the BJP – both conditions have to be met – only then it can happen.

Thackeray merging with the BJP is an absurd proposition. A merger has to take place between two political parties, so this brings us to the question of which is the real party and I have explained to you how that is decided.

So, if Scenario 2 plays out and the new government has to prove its majority and these MLAs who defected from the Shiv Sena vote with that government, are they still liable for disqualification?

Yes, they are liable to be disqualified for violating the whip of their party. But remember, a new situation would have evolved – a new government, a new speaker. Then even if Shiv Sena moves a petition, the speaker will sit on it, he will not decide. He will try to protect these members, it will drag on.

Meanwhile the new government will complete its term?

Yes.

A speaker is meant to be a non-partisan post…

That does not happen in India.

Is there an urgent need to revisit the anti-defection law?

Earlier there was a provision, in the anti-defection law, for a split, and they found that this was being misused by political parties. So they did away with that. Similarly the merger provision should also go because it is being misused by people.

Also, currently the anti defection law doesn’t create any disability. Currently if a legislator’s election is set aside on grounds of corruption, then he will be disqualified for six years from contesting polls. Similarly if a person commits a criminal offence which carries a punishment of more than two years, then that person will be disqualified and will remain disqualified for another six years after he serves out his sentence. Such a disability is not created here by the anti-defection law. If you defect today, you will be disqualified tomorrow, and the day after tomorrow if an election is held, you can stand for election and come back to the house, it has been designed that way.

That money is the major vehicle of influence in such cases is the worst-kept secret. What does this say about a mature democracy?

Who says we are a mature democracy? Just like we call ourselves Vishwaguru [world leader], we call ourselves mature democracy. Money power has been there right from the beginning, so much for mature democracy. The ruling party itself, any ruling party, how much money would they be spending, is it all accounted money, white money? It cannot be.

It is unaccounted money being used. That will remain so until state funding of elections is introduced.