The decision of the Maharashtra governor to accept the Eknath Shinde faction as the official Shiv Sena came on expected lines going by the current political circumstances. Being a Bharatiya Janata Party (BJP) member of the legislative assembly, the speaker was hardly expected to decide against his own party’s will.

Interestingly, the speaker, while recognizing the Shinde faction as the official parliamentary party in the legislative assembly, did not disqualify the members who chose to stay with what is now known as the Uddhav Thackeray-led Shiv Sena (UBT). Instead, he instructed them to join the official faction thus providing them an opportunity to ‘shift political loyalty’. Such flexibility implementation of disqualification provisions is seemingly possible due to the gaps in the anti-defection law of 1985 brought in through the Tenth Schedule of the 52nd Amendment to the Constitution.

As per the original Paragraph or Rule 3 of the Tenth Schedule, there was to be no disqualification of any members if they represented a faction of the original political party, arisen out of the split and at least one-third of members of the legislative party had defected.

However, this provision was removed in the 91st Amendment in 2003.

Subsequently, Paragraph 4 states that disqualification on the ground of defection not to apply in case of a merger:

(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party, or as the case may be, of a new political party formed by such merger; or,
(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.”

In the Maharashtra case, 37 out of the 54 Shiv Sena MLAs joined the Shinde faction which ensured that the two-thirds (36) mark was crossed.

However, the defection created scenarios that open contestations which might not be effectively addressed by the anti-defection law. For example, the law articulates the qualifying thresholds like ‘two-thirds’ for mergers and endorses the right of members to not accept such mergers and function as a separate group. However, there is no reference to scenarios beyond the scope of merger or creation of new parties.

In the case of Shiv Sena, both factions had claimed that they were the original parliamentary party and that the members of the opposite group should be disqualified.

Floor test to determine party control

In February 2023, the Election Commission of India (ECI) ruled in favour of the Shinde faction by allowing it to use the ‘Shiv Sena official election symbol. The EC had relied on the “test of majority” in the legislative assembly whereas the Uddhav Thackeray faction had rejected this ‘majority’ argument by asking the EC to decide on the basis of the revised party constitution of 2018 which gave the Paksh Pramukh (party president) the power to appoint office-bearers.

The UBT also argued that if Shinde did not agree with the constitution, he should form his own party. However, this argument was rejected by the EC on the ground that the amended constitution was not submitted to the EC as required by the Representation of the People Act, 1951.

Hence, relying on the 1999 constitution which listed the national executive and not the party president as holding absolute power, the EC decided to go with the number test in the assembly but without, seemingly, considering the fact that the national executive of the party had not met with the Praksh Pramukh presiding over the proceedings and mandating the appointment of office-bearers, including head of the parliamentary party in the legislature.

It was, hence, evident that the EC only put to test selective parameters of its choosing, which is justified as ‘best suited’ to the ‘facts and complexities of the specific case’. However, the EC did a dissection of the party by naming the Uddhav-led faction as Shiv Sena-UBT and Shinde-led one as Balasahebanchi Shiv Sena (BSS) and allotting the original symbol to BSS.   

The EC decision, thus, effectively granted the control of the official Shiv Sena to the Shine-led faction, notwithstanding its BSS tag, while listing the UBT as a new party with a new symbol.

The Supreme Court, in May 2023, refused to stay the EC decision though observing that the Bench could have intervened had Uddhav Thackeray not resigned before the floor test. Thus, while the apex court sought to place the mandate of the decisions on the EC and the Speaker of the legislative assembly, it was evident that the ‘majority on the floor’ became the parameter that was uniformly prioritized by all these constitutional authorities.

These decisions implied that the Shinde faction gained complete control over the party’s assets, bank accounts and offices thus leaving Uddhav Thackeray, a member of the party’s founding family, bereft of the organizational resources.

It is now a foregone conclusion that the same fate awaits the Nationalist Congress Party (NCP) which too underwent a similar churning in July 2023 when the Ajit Pawar-led faction with 41 MLAs out of the 52 crossed over and joined the Eknath Shinde-led government, which has BJP as the largest party with 106 MLAs. Like in the case of Shiv Sena factions, the decision on NCP legislators will also involve complexities over the party’s constitution, the role of its president and its national executive, which, unlike the case of Shiv Sena, has members from various states. 

While it is likely that the fate of these NCP factions in the Maharashtra assembly could be decided using the same yardstick, these decisions will have implications for the NCP’s units in other states as well, which the Supreme Court and EC will also have to consider when determining the control of the party and its office-bearers. Certainly, 41 MLAs in Maharastra cannot be the yardstick to determine the control of a party with units in many states across the country.     

What comes first: the party or its ‘parliamentary’ role?

These aspects put the spotlight on the fundamental question – whether the party comes first or its parliamentary roles – and how the Indian democracy has to engage this question.

Interestingly, the counsel for the Shinde faction had claimed in the Supreme Court that the EC determines a party’s status based on the number of members in the parliament and legislative assemblies. This, in fact, is a problematic contention for a vibrant democracy where parliamentary roles only happen to be one of the spaces of democratic participation whether for citizens or political parties.

The spectre of grading parties based on elected members of legislative assemblies and councils and in parliament has seen many parties losing ‘national’ status and being relegated to ‘state’ parties despite having a national presence. A case-in-example is the communist parties – CPI(M) and CPI – which have a cadre presence in many of the states but have still lost erstwhile regional parties with domination in larger states and having representation from more than one state.

The NCP, similarly, has a multi-state presence though the prevalence of the Pawar political clan led to its leadership control being in Maharashtra. Parties like the Trinamool Congress (AITC), Samajwadi Party (SP), Bahujan Samaj Party (BSP), the Janata Dal (United), and so on, have attempted to take a shy at national party status riding on the seats and presence in large states.

Formerly the Samata Party, the JD(U) has been a splinter from the old Janata Dal family. One such splintering created the Janata Dal (Secular) which too, like the NCP, ended up in the control of the Deva Gowda family. Former Prime Minister Deve Gowda’s constant political realignments have spawned trouble for the party’s units, howsoever meagre in presence, in other states which had to make ideological adjustments and cross-overs to uphold the ‘secular’ ideological identity of the party.   

On the other hand, there are political parties like SUCI, Forward Bloc and Janata Party, to name a few, which have rarely tasted electoral success or participation despite their widespread presence in many parts of the country. According to the EC records of 2014, there were over 1698 registered parties out of which only 464 contested in the 2014 election. 

In cadre-centric communist parties, parliamentary roles of members are known to be curtailed to two consecutive terms after which they give way to other members. In such ideology-oriented parties, the parliamentary role is considered only one of the roles of democratic engagement, which expands to other areas of peoples’ movements, political activism, labour and student movements, and involvement in other socio-cultural arenas.

It is natural that the EC, being the nodal body to manage elections, can look at parties from election and parliamentary perspectives. Hence, the floor test yardstick will look ‘best suited’ to the EC when contestations over party control and status reach its doors. The apex court, on the other hand, taking the same approach does not augur well for democracy. Going by how many of the recent defections have taken place in various states, the apex court needs to enforce more credible measures to determine control of parties, which should reflect the voice of members and organizational participants rather than its legislators and parliamentarians who might be driven by other considerations.   

New age of defections

The anti-defection law came in 1985 after at least two decades of debates as a result of various committees and resolutions, since the Aaya Ram Gaya Ram episode of 1967 after a Haryana legislator, Gaya Lal, made 3 defections in a fortnight. Starting from P Venkatasubbaiah’s private bill in August 1967 to the Committee on Defections headed by then home minister, Y.B. Chavan which submitted its report in February 1969, at least two attempts – the Constitution’s 32nd Amendment bill of 1973 and 48th Amendment Bill of 1978 – were made before the 52nd Amendment could fructify in 1985.

Though the enactment of the law did not eliminate the culture of defections, whether politically driven or through other inducements, the law had, for many years, served as a deterrent against rampant defections and horse trading with political realignments largely happening through concerted exercises or over ideological and political differences. 

However, this trend has seemingly ended in recent years with widespread cross-overs, overnight splintering of parties and governments falling without warning. It may be beyond coincidence that the ruling party at the centre has been the main beneficiary of these overnight political coups that led to large-scale desertions and change or formation of governments in Karnataka, Goa, Madhya Pradesh, Maharashtra and so on, in the last decade.

The opposition parties have often alleged that the BJP government at the centre has misused agencies like the Enforcement Directorate and Central Board of Investigation to cajole and engineer such mass defections, besides offering other inducements. For that matter, some of the legislators who crossed over sides in Maharashtra, including faction leaders like Ajit Pawar, had ongoing corruption cases against them. Furthermore, the fact that a considerable number of ongoing investigations and raids are against legislators or parliamentarians from the opposition parties has also lent credence to such allegations of misuse.

Large-scale defections and consequent fall of elected governments do not augur well for the world’s largest democracy. Above all, it represents an abysmal decline of political ethics and an insatiable hunger for power. The recurring instances of defections in recent years seriously expose the shortcomings in the anti-defection law which has, seemingly, become outdated for the new brand of politics that is in practice today. However, the prospects of updating this law will depend on the political will of the ruling regime, provided it sees wishful thinking in doing so.