Maharashtra government: After shocker from Devendra Fadnavis and Ajit Pawar, new combination may have to pass through legal scrutiny

With the political developments in Maharashtra taking a dramatic turn this morning, there are several legal issues which can crop up with the ensuing events.

On the face of it, as per the conventional wisdom the anti-defection law is not attracted because no one seems to have defected from the NCP because the doubt is regarding the actuality of the support of the NCP to the BJP led government.

File image of Maharashtra chief minister Devendra Fadnavis. Twitter/@ANI

As per the 10th Schedule of the Constitution, which contains the law on anti-defection, no defection can take place from a political party by its constituent legislators and parliamentarians.

The disqualification as per paragraph 2 of the constitutional law, is twofold. First, under para 2(1)(a), when a member of a Legislative House, voluntarily gives up their membership of the political party, they are disqualified. This provision is not attracted, in the instant case, because no one has seemingly quit the NCP. Hence, there is no question of a violation under 2(a).

Second, under para 2(b), when a member of the House, without resigning from the political party, ‘votes or abstains from voting in such House contrary to any direction issued by the political party’. This provision is usually manifested in the form of a party whip. A party whip is an order, which is conventionally issued by the officially appointed whip.

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In such a situation, defection is established if the party whip has been defied by the particular member or members of the house.

As far as the preset development goes, there has been no news on any official whip of the NCP directing to support or vote in any particular manner. However, there may be a possibility of such official instructions standing in the party rank and file.

If there was indeed an official whip, then the present situation stands vulnerable to legal scrutiny in courts.

The anti-defection law also provides for an exception. If the defection happens in the form of a merger, the law is not attracted. As per the provisions of the Para 4 of the law, the defection shall be considered merger when a total of two-thirds of Legislative House members of a political party join another one. In this instance, such defection is called merger and the original party loses its identity in the House concerned.

This provision will be key in examining the legality of the politics which is unfolding in the state. As per the latest news reports, Supriya Sule has alleged that there is a spit in the NCP Legislative Party.

As has been already mentioned, the law is clear on when to legally term a split as a split. If there is indeed a split, as Sule is alleging, then a legal crisis open to scrutiny by courts is almost inevitable. If Ajit Pawar, who is also the Legislative Party leader in the state, has the support of two-thirds of the total NCP MLAs, then the original NCP in Maharashtra will be considered to be the one which Ajit Pawar is leading and he can legally form a new political party, and anyone defying his whip (and following Sharad Pawar’s, if both are contradictory), will be interestingly considered defectors.

However, the correct political position will determine the development of legal issues, which no doubt will be open to scrutiny by courts.

The author is an assistant professor of law at Maharashtra National Law University, Mumbai. He tweets @raghavpandeyy

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Raghav Pandey