Intro: Legal complexities surrounding anti-defection provisions have prompted caution over possible shifts among opposition parliamentarians.
Mumbai
The Eknath Shinde-led faction of the Shiv Sena is reportedly adopting a cautious approach regarding the possibility of Members of Parliament from the Uddhav Thackeray-led Shiv Sena (UBT) joining its ranks.
The restraint stems from legal concerns arising from a landmark Supreme Court judgment that clarified the role of political parties and their legislative wings in cases involving mergers and defections under the Anti-Defection Law.
Political discussions intensified following speculation that several MPs belonging to the Shiv Sena (UBT) could switch allegiance to the faction led by Eknath Shinde. However, legal experts have noted that any such move would face scrutiny under provisions of the Tenth Schedule of the Constitution, which governs defections by elected representatives.
The legal framework in question emerged from the political crisis that unfolded in Maharashtra in 2022, when Shinde led a rebellion against the leadership of Uddhav Thackeray. The resulting dispute led to disqualification petitions being filed before the Maharashtra Legislative Assembly Speaker and eventually reached the Supreme Court.
In its May 2023 judgment, a Constitution Bench headed by former Chief Justice of India D. Y. Chandrachud made significant observations regarding the distinction between a political party and its legislative or parliamentary wing. The court held that while both are separate entities, the original political party plays a decisive role in determining the validity of a merger under the Anti-Defection Law.
Legal experts, including senior advocate Abhishek Manu Singhvi and former Lok Sabha Secretary General P. D. T. Achary, have pointed out that securing the support of two-thirds of legislators or parliamentarians alone may not be sufficient to avoid disqualification. They argue that a valid merger requires more than numerical strength within the legislative wing.
According to constitutional provisions, two conditions must be fulfilled for a merger to be recognised. First, the original political party must formally decide to merge with another political organisation. Second, at least two-thirds of the members of its legislative or parliamentary wing must support that decision. Consequently, even if six or seven of the nine Lok Sabha MPs belonging to Shiv Sena (UBT) choose to leave, such a move may not qualify for protection unless it is accompanied by a corresponding organisational merger. This interpretation has significantly influenced political calculations across parties.
