Experts differ over timing of anti-defection law coming into force

Legal experts have different opinions as to when the anti-defection law comes into play with one of them saying it has no "impact" at the time of government formation while another felt that it will apply irrespective of the fact where MLAs have taken oath.

The issue of anti-defection law has come up following BJP leader Devendra Fadnavis and NCP's Ajit Pawar taking oath as chief minister and deputy chief minister of Maharashtra respectively.

After the sudden twist early in the morning, NCP chief Sharad Pawar said the decision to back Fadnavis was his nephew Ajit Pawar's personal choice and not that of the party and those who have switched sides would attract the provisions of the anti-defection law.

Senior lawyer and constitutional law expert Rakesh Dwivedi, when asked as to when and how the anti-defection law will operate in Maharashtra's case, said it has no impact at the time of government formation which always takes place before oath taking of MLAs in the assembly.

"The anti-defection law has no impact at time of formation of the government. The government is always formed before the oath of MLAs and MPS," he said, adding "Later, somebody will have to move an application before the assembly speaker alleging defection, if any."
"If it is more than a split and is by two-third or more, then it will be difficult to apply anti-defection law," he said adding, "Disqualification does not apply in case of merger if it is by two-third or more."
"If they have been able to prove majority before the governor, then the governor is bound to act," he said, adding, "Letter of majority was given to the governor and he acted upon it and administered oath."
Dwivedi refused to comment on the possible outcome of the power tussle and the impact of the anti-defection law in the instant case saying, "I am not commenting on it as I do not know who have got what numbers (of MLAs)."