Anti-Defection law will be put to test on the floor of Maharashtra Legislative Assembly on Nov 30

Mumbai:

He was ridiculed and laughed at over his remark “I shall come back again” which he repeated thrice on the floor of the Legislative Assembly. But very few people took note of Chief Minister Devendra Fadnavis during Diwali celebrations last month had remarked that the Bharatiya Janata Party (BJP) will form the next government under “dramatic” circumstances which would surprise everybody.

In the wee hours of Saturday morning the Union Cabinet at an emergency meeting ratified the lifting of the Presidents Rule in Maharashtra. Within matter of few hours, Maharashtra Governor Bhagat Singh Koshyari administered oath of office and secrecy to Fadnavis as the Chief Minister and Nationalist Congress Party (NCP) rebel Ajit Pawar as the Deputy Chief Minister.

By late evening, a rattled Shiv Sena filed a Writ Petition before the Supreme Court of India challenging the Governors decision in swearing-in Fadnavis and Pawar. Later in the afternoon, NCP president Sharad Pawar remarked that the Governor apparently seems to be kept in the dark about the support of NCP MLAs to Ajit Pawar. He added that two list of names of MLAs, their constituencies, contact number and signatures are missing from the NCP office.

That “drama” by no means is over till the deadline of November 30 set by Maharashtra Governor Bhagat Singh Koshyari within which Fadnavis and his new found ally Nationalist Congress Party (NCP) rebel and Legislature Party leader Ajit Pawar have to prove their majority on the floor of the legislative assembly. His uncle and NCP president Sharad Pawar has tersely warned the rebel NCP MLAs led by his nephew that they could attract the provisions of the Anti-Defection Law.

Here the Anti-Defection Law or The Constitution 52^nd Amendment Act, enacted on February 15, 1985, defines defection as (1) split wherein one-third of the total number of legislators of a party split and form a separate faction. While, as per definition (2) in the Act, defection by two-thirds of the total number of legislators of a party is treated as “merger”.

In both the case scenario’s, in case of a one-third split, Ajit Pawar will have to split 18 NCP MLA’s out of the total 54 MLAs. In the case of a two-thirds merger, then Ajit Pawar should enjoy the support of 36 NCP MLAs. Party president Sharad Pawar says the partys disciplinary action committee after consulting legal opinion will decide on future course of action.

In both the cases if the required number of legislators is not met, then the defectors will invite action under the Anti-Defection Law. Then there is the latest case of disqualification of 17 rebel Congress and Janata Dal (Secular) MLAs, by the Speaker. However, the Supreme Court has allowed the rebel MLAs to contest the assembly by-elections.  

According to constitutional expert Advocate Ashish Giri, right now since the NCP has not taken any step or any action against Ajit Pawar and the rebel NCP MLAs, it neither can be called as a split or a merger. If the NCP decides to expel Ajit Pawar then he will need the support of 36 MLAs, to save him and other rebels from the purview of the Anti-Defection Law. Congress strategist Ahmed Patel has indicated that the three parties will have to fight the issue both legally and politically as well.

Meanwhile, former Maharashtra Legislature Secretary, Anant Kalse argued that Ajit Pawar currently by virtue of being elected as the NCPLP leader enjoys the powers to issue party whips to the 54 MLAs. Defying the whip can attract the provisions of Anti-Defection Law, says Kalse. That is, until Sharad Pawar by virtue of being the party president once again calls for the NCPLP meeting and passes a resolution recommending to the Speaker of the Legislative Assembly to treat the new legislator as NCPLP leader. In order to do so, the NCP chief needs a simple majority to replace the party’s legislature party leader, added Kalse.

Kalse further revealed that BJP’s Haribhau Bagade still continues to occupy the post of the Legislative Assembly Speaker as the post is Constitutionally created. Bagade was elected as the Speaker in the now dissolved 13^th Maharashtra Legislative Assembly. He continues to occupy the post until the new 14^th Assembly is called into session and it elects his successor. Till such time he discharges the duties of the Speaker, like calling for the special session to administer oath of membership to the newly elected members, call for the next session of the house and election of his successor.

As per the provision in law that places any time limit upon the Speaker to adjudicate in the matters of defection. Of course his actions can be called into question in a court of law. Again in the S R Bommai judgment case of 1994, the Supreme Court has made it very clear that any floor test to prove the majority enjoyed by the government or otherwise, has to be done on the floor of the house and not at the Raj Bhavan. In that way, Governor Bhagat Singh Koshyari has played by the rule book in asking Fadnavis to prove his majority by November 30.

Both Pawar and Patel are well aware of the constitutional provisions and hence have maintained that they will defeat the Fadnavis government on the floor of the house and form the next government. Meanwhile, Ajit Pawar supporter and rebel NCP MLA from Ahmedpur, Babasaheb Patil has busted the NCP claims that the party MLAs who accompanied Ajit Pawar to Raj Bhavan in the morning were clueless about what was transpiring. Add to that, Ajit Pawar’s son Parth Pawar in a brief reaction to the media denied talks of a vertical split in the Pawar family.

Mumbai:

He was ridiculed and laughed at over his remark “I shall come back again” which he repeated thrice on the floor of the Legislative Assembly. But very few people took note of Chief Minister Devendra Fadnavis during Diwali celebrations last month had remarked that the Bharatiya Janata Party (BJP) will form the next government under “dramatic” circumstances which would surprise everybody.

In the wee hours of Saturday morning the Union Cabinet at an emergency meeting ratified the lifting of the Presidents Rule in Maharashtra. Within matter of few hours, Maharashtra Governor Bhagat Singh Koshyari administered oath of office and secrecy to Fadnavis as the Chief Minister and Nationalist Congress Party (NCP) rebel Ajit Pawar as the Deputy Chief Minister.

By late evening, a rattled Shiv Sena filed a Writ Petition before the Supreme Court of India challenging the Governors decision in swearing-in Fadnavis and Pawar. Later in the afternoon, NCP president Sharad Pawar remarked that the Governor apparently seems to be kept in the dark about the support of NCP MLAs to Ajit Pawar. He added that two list of names of MLAs, their constituencies, contact number and signatures are missing from the NCP office.

That “drama” by no means is over till the deadline of November 30 set by Maharashtra Governor Bhagat Singh Koshyari within which Fadnavis and his new found ally Nationalist Congress Party (NCP) rebel and Legislature Party leader Ajit Pawar have to prove their majority on the floor of the legislative assembly. His uncle and NCP president Sharad Pawar has tersely warned the rebel NCP MLAs led by his nephew that they could attract the provisions of the Anti-Defection Law.

Here the Anti-Defection Law or The Constitution 52^nd Amendment Act, enacted on February 15, 1985, defines defection as (1) split wherein one-third of the total number of legislators of a party split and form a separate faction. While, as per definition (2) in the Act, defection by two-thirds of the total number of legislators of a party is treated as “merger”.

In both the case scenario’s, in case of a one-third split, Ajit Pawar will have to split 18 NCP MLA’s out of the total 54 MLAs. In the case of a two-thirds merger, then Ajit Pawar should enjoy the support of 36 NCP MLAs. Party president Sharad Pawar says the partys disciplinary action committee after consulting legal opinion will decide on future course of action.

In both the cases if the required number of legislators is not met, then the defectors will invite action under the Anti-Defection Law. Then there is the latest case of disqualification of 17 rebel Congress and Janata Dal (Secular) MLAs, by the Speaker. However, the Supreme Court has allowed the rebel MLAs to contest the assembly by-elections.  

According to constitutional expert Advocate Ashish Giri, right now since the NCP has not taken any step or any action against Ajit Pawar and the rebel NCP MLAs, it neither can be called as a split or a merger. If the NCP decides to expel Ajit Pawar then he will need the support of 36 MLAs, to save him and other rebels from the purview of the Anti-Defection Law. Congress strategist Ahmed Patel has indicated that the three parties will have to fight the issue both legally and politically as well.

Meanwhile, former Maharashtra Legislature Secretary, Anant Kalse argued that Ajit Pawar currently by virtue of being elected as the NCPLP leader enjoys the powers to issue party whips to the 54 MLAs. Defying the whip can attract the provisions of Anti-Defection Law, says Kalse. That is, until Sharad Pawar by virtue of being the party president once again calls for the NCPLP meeting and passes a resolution recommending to the Speaker of the Legislative Assembly to treat the new legislator as NCPLP leader. In order to do so, the NCP chief needs a simple majority to replace the party’s legislature party leader, added Kalse.

Kalse further revealed that BJP’s Haribhau Bagade still continues to occupy the post of the Legislative Assembly Speaker as the post is Constitutionally created. Bagade was elected as the Speaker in the now dissolved 13^th Maharashtra Legislative Assembly. He continues to occupy the post until the new 14^th Assembly is called into session and it elects his successor. Till such time he discharges the duties of the Speaker, like calling for the special session to administer oath of membership to the newly elected members, call for the next session of the house and election of his successor.

As per the provision in law that places any time limit upon the Speaker to adjudicate in the matters of defection. Of course his actions can be called into question in a court of law. Again in the S R Bommai judgment case of 1994, the Supreme Court has made it very clear that any floor test to prove the majority enjoyed by the government or otherwise, has to be done on the floor of the house and not at the Raj Bhavan. In that way, Governor Bhagat Singh Koshyari has played by the rule book in asking Fadnavis to prove his majority by November 30.

Both Pawar and Patel are well aware of the constitutional provisions and hence have maintained that they will defeat the Fadnavis government on the floor of the house and form the next government. Meanwhile, Ajit Pawar supporter and rebel NCP MLA from Ahmedpur, Babasaheb Patil has busted the NCP claims that the party MLAs who accompanied Ajit Pawar to Raj Bhavan in the morning were clueless about what was transpiring. Add to that, Ajit Pawar’s son Parth Pawar in a brief reaction to the media denied talks of a vertical split in the Pawar family.