Learn how the law related to desertion was made in the midst of the political crisis in Maharashtra

Learn how the law related to desertion was made


  • Eknath Shinde’s faction claims more than 39 deputies together

  • The vice-president has given a notice of disqualification to 16 deputies

  • The Supreme Court has suspended the case of disqualification of 16 deputies until July 11

The government of Maha Vikas Aghadi continues in Maharashtra. It is a different matter that the majority of Shiv Sena MPs are in Guwahati with the Eknath Shinde camp. When Eknath Shinde Camp arrived in Surat from Bombay, the picture had become clear that there had been a tremendous split in Shiv Sena and that tomorrow would be difficult for Uddhav Thackeray. The vice-president understood this problem and handed over the disqualification notice to 16 deputies from Eknath Shinde’s camp. Shinde’s camp, however, said that when a large number of rebel MPs have no faith in the vice president, how can they issue a disqualification notice. The matter went to the Supreme Court and on July 11 the rebels obtained relief. In the midst of all this, Eknath Shinde says he will go to Bombay on Thursday for the ground test. However, Mahavikas Aghadi is exploring legal possibilities. But here we will mention a 1967 incident that later became the basis of the anti-desertion law.

That interesting 1967 episode
Aaya Ram Gaya Ram became a popular phrase in the Indian political system when Gaya Lal, a Haryana MP, switched parties three times in a single day in 1967. After that, many governments had to leave prematurely in due to the desertion of deputies. The president’s government was imposed on many states. Parliament considered enacting a law to stop this trend. In 1985 the Constitution was amended and Annex Tenth was added to institutionalize the concept of disqualification for desertion. This calendar is commonly known as the Anti-Defection Act. This law applies to both the Lok Sabha and state legislatures. The law provided that members elected as candidates of a particular political party would be disqualified if they voluntarily resigned as members of the political party, or voted, or if under any party leadership (Whip) they abstained from voting in the House.

Amendments made to the law against desertion
The 91st Amendment to the Constitution in 2003 removed the concept of division into a political party and removed the applicable provision of the Tenth Annex. The objectives and reasons for the amendment cited the recommendations of the 1990 Electoral Reform Committee (Dinesh Goswami Committee), the Legal Commission of India in 1999 and the National Commission for the Review of the Functioning of the Constitution in 2002. .Section 3 of the tenth Annex which provides for protection against disqualification in the event of partition. The merger became the only exception against the desertion rule as a result of the 2003 amendment. Section 4.2 of the Tenth Annex states that only when two-thirds of the members agree to merge with either party, they will be exempt from disqualification. The parent party must merge with another party and have the support of two-thirds of its members.

What is the definition of High Courts
Some of the latest high court rulings have been based solely on figures that if two-thirds of MPs merge with another political party they will be exempt from disqualification. In July 2019, 10 of the 15 members of Congress in Goa joined the BJP, bringing the strength of the ruling party to 27 in the 40-member chamber. As they constituted two-thirds of the strength of the unity of the legislative party, the Goa bank of the Bombay High Court considered that they would not attract a law against desertion. The decision of the High Court as well as the decision of the President not to disqualify him are subject to appeal to the Supreme Court.

The Telangana case came to the fore
Similarly, in Telangana, in 2016, 12 of the 158 members of Congress joined the ruling TRS, and the president approved the merger of the faction divided into an argument that they had at least two-thirds of the legislative force. These decisions will be useful for the Shinde camp. Now the question is if Shinde can claim Shiv Sena’s camp, then the answer is yes. The dispute, however, will be resolved before the Electoral Commission (EC), where Shinde and his supporters will have to claim the party and its symbol in accordance with the 1968 Electoral Symbols Order (Reserve and Assignment) and satisfy the Electoral Commission on the majority. Will happen. ,

Does Eknath Shinde’s claim on Shiv Sena have merit?
Article 15 of the Symbol Order empowers the Electoral Commission to recognize a separate group as an original political party after hearing both parties. He states that the Electoral Commission must take into account all the facts and circumstances available in the case and before declaring a faction as a recognized political party, they will listen to the representatives of classes or groups and other people who want to be heard.

In Sadiq Ali v Hon’ble Election Commission and Another, in 1972, the Supreme Court upheld the Electoral Commission’s views on the majority as an important factor in the recognition of a political party. He acknowledged that the test of majority and numerical power is a very valuable and relevant test. “In a democratic system of government or political system, whatever the situation of the government or any other system of organization, the figures are relevant and important and it is not possible or permissible to lose sight of them. In fact, it is the vision. of the majority, which is ultimately decisive in the democratic configuration “, said the superior court. In the internal operation the will of the majority must prevail and if the majority is suppressed or the suitable expression is not allowed. it will be equivalent to the tyranny of minorities “.

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