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What’s stopping Shinde from asking for floor test? Anti-defection law and the Sena identity 

It’s not the numbers in the legislative assembly that’s the real problem, say experts. In order to avoid disqualification, he must either merge with the BJP or prove that the party has been split vertically. 

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Mumbai: It’s been four days since Shiv Sena’s Eknath Shinde raised a banner of revolt. Yet, neither his rebel faction — with its alleged 37 MLAs — nor Maharashtra Assembly’s single largest party, the Bharatiya Janata Party, has approached Governor Bhagat Singh Koshyari to make Chief Minister Uddhav Thackeray prove his majority on the floor of the House.     

It’s not the numbers in the legislative assembly that is holding them back, politicians and constitutional experts claim — it’s a legal hurdle and a political dilemma.

Says P.D.T. Achary, former secretary-general of Lok Sabha, told ThePrint that the 2003 amendment to the Constitution’s Tenth Schedule, referred to commonly as the anti-defection law, would make it difficult for the Shinde faction to escape disqualification without merging with another party.  

“Until 2003, if two-third members left a party, they could still form a separate group and not attract anti-defection law,” he told ThePrint. “But because defection had become a regular feature, rules were tightened. Now, even if they [the Shinde faction] have two-third members, they can’t escape the law. Their only option is a merger.”

The Shinde faction claims to be unhappy with the Shiv Sena’s 2019 decision to break its ties with the BJP and instead make an alliance with “unnatural” allies Congress and the Nationalist Congress Party. But merging with the BJP could lead to additional problems — the primary among them being losing the Sena identity, say sources in the BJP.  

An MLA from the Shinde faction told ThePrint that the rebel group was planning to move court.

“We will fight it in court,” the MLA said. “Our first petition to appoint a leader was not entertained by the deputy speaker. Now we’ll fight legally.”

Speaking to ThePrint, NCP leader and Maharashtra Home Minister Dilip Walse Patil said: “If Shinde has the numbers, who’s stopping him from approaching the governor to ask for a floor test? The main reason is the Tenth Schedule of the Constitution after the 2003 amendment. The option before them is to form a group and merge with the BJP or any other part but that could finish their careers. They’re still undecided about joining the BJP, as I’ve been informed.”


Also Read: ‘Subah ka bhula…’ — Original Shiv Sena rebel Chhagan Bhujbal has a message for Eknath Shinde


Anti-defection dilemma 

The Tenth Schedule of the Constitution lays the ground for disqualification of an MLA. However, there’s an exception: mergers. Paragraph 4 (1) of the Tenth Schedule says that a member of a House who was elected to it as part of a political party cannot be disqualified if their original political party merges with another party. For such a merger to be valid, two-thirds of the members of the legislature party have to agree to the merger.

Achary claims that the law ensures that Shinde has very limited options: In order to avoid disqualification, he must either prove before the Speaker and the Election Commission that he has the numbers to be the original Shiv Sena or that he’s willing to merge with the BJP. 

Achary says that to prove the first, Shinde must show that he’s been able to split the party vertically — this means that not only does he have support from the legislative party but also among MPs, corporators, and executive and district units. 

“This option looks unlikely at the moment given that [Thackeray] has been rallying the party cadre on the ground, “ he told ThePrint.

Senior advocate Sanjay Hedge agreed. “Shinde’s only choice is to merge with the BJP. He can’t split and become another group without risking disqualification” he told ThePrint, adding that two-thirds of the legislative party has no meaning if there’s no vertical split in the party.  

Merging with the BJP will pose another problem — losing the Sena identity. 

“This way, he’ll lose the point he was trying to make — that he was representing all that Balasaheb [party founder and Uddhav’s father Bal Thackeray] and the Shiv Sena stood for. He’ll become like any other member of the BJP,” Achary said.

BJP’s silence

Even as the drama rapidly unfolded in Maharashtra, the usually vocal BJP continued to maintain an unusual silence. 

The last three days saw hectic activity and political huddle in former Maharashtra Chief Minister Devendra Fadnavis’s house. Fadavis even met Home Minister Amit Shah in Delhi

And yet, the BJP has not made a move to demand a floor test. What’s more, even its most vocal leaders, such as Sambit Patra and Kirit Somaiya, have largely remained away from the public eye.

A senior leader of the BJP told ThePrint that the party was waiting for the legal hurdle to be resolved. Another BJP leader said the party’s real aim in Maharashtra was to weaken the Sena. 

“But if they [the rebels] join the BJP, we’ll be able to form the government but that won’t weaken the Sena in the state and BMC — the party’s main strengths,” he said. This is especially significant given that the high-stakes Brihanmumbai Municipal Corporation elections are likely to be held after monsoons.

On the other hand, a Sena leader told ThePrint that not only will the rebel group’s identity as Shiv Sainiks be erased by the merger but they would also face challenges politically “even if Shinde becomes deputy chief minister or even chief minister after bargaining with the BJP”. 

“Many of them are from rural Marathwada where they have to face a challenge from the NCP, where the BJP’s not on solid ground,” the leader said.

(Edited by Uttara Ramaswamy)


Also Read: Prohibitory orders clamped in Sena rebel Eknath Shinde’s stronghold Thane amid Maharashtra crisis


 

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