Maharashtra Speaker's Decision In Shiv Sena Disqualification Case Negates Anti-Defection Law, Contrary To Supreme Court Judgment

The decision of Maharashtra Legislative Assembly Speaker Rahul Narvekar, refusing to disqualify 16 MLAs of the Eknath Shinde-faction and declaring Shinde faction as the real Shiv Sena, came as no surprise. The bane of the tenth schedule of the Constitution, which incorporates the anti-defection law, lies in entrusting the power of adjudication to the Speaker, a political appointee. Expecting the Speaker to rise above political considerations while acting as a tribunal under the tenth schedule is nearly impossible. Consider if there is any instance of a Speaker ruling against a member of the ruling party (coalition), and the answer becomes evident. This reality prompted the Supreme Court, in a 2020 judgment, to recommend to the Parliament that matters of disqualification under the tenth schedule should be decided by an impartial tribunal instead of the Speaker. Recently, constitutional law expert Senior Advocate Arvind Datar also voiced a similar concern and suggested that the High Courts should be the deciding authority under the tenth schedule.

Regardless of the political compulsions and consequences involved in the matter, since the Maharashtra Speaker has given the ruling ostensibly acting as a tribunal, the decision merits an analysis from a Constitutional perspective. The basic foundation of the decision is the fact that the Shinde faction enjoyed the support of the majority of Shiv Sena MLAs. The Speaker, after holding that neither the Party Constitution nor the 2018 leadership structure offered reliable yardsticks to decide who is the real Shiv Sena party, fell back on the test of legislative majority. Observing that the Shinde faction had an overwhelming majority of 37 out of 55 MLAs when the rival factions emerged on June 21, 2022, the Speaker proceeded to declare them as the real Shiv Sena party. This a fallacious reasoning which does violence to the letter and spirit of the tenth schedule and turns the anti-defection law on its head.

Before elaborating further, it is important to bear in mind certain foundational principles of the tenth schedule. Firstly, a member of the legislative assembly “shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member". This is as per Explanation (a) to the second paragraph of the tenth schedule. If Shinde group MLAs were set up as candidates for the 2019 elections by the Shiv Sena party led by Uddhav Thackeray, then they will be regarded as the original members of the party led by Thackeray for the purposes of the tenth schedule. This factual aspect becomes pivotal in determining whether a member has defected from the political party. Secondly, the only defence for a dissident group against disqualification under the tenth schedule is a merger with another political party. The concept of 'split' is no longer recognized under the tenth schedule. Admittedly, the Shinde group has not merged with any other political party and remains an independent group.

If a split is not recognized under the tenth schedule, then it is immaterial whether the splinter group has a majority in the legislature party. Even if the entire legislature party indulges in acts prohibited under Paragraph 2 of the tenth schedule (voluntarily giving up party membership or acting against the party whip), they ought to be disqualified under the anti-defection law. The tenth schedule nowhere recognizes the concept of “legislative majority” becuase the only defense is a merger with another party.

The Speaker has employed a circular logic to hold that the Shinde group is the real party because they have a legislative majority. The only test which mattered here was whether the MLAs deviated from the original party which set them up for the 2019 elections. Instead of applying this test, the Speaker declared the dissident group as the original party itself, merely because they had a majority MLAs with them. This amounts to circumventing the tenth schedule, which does not accept a split group. This line of reasoning is giving a premium to defections.

A corollary of the Speaker's line of reasoning is that a legislative wing can hijack the original party if the majority of the legislators decide to move away. The absurdity and danger of this logic will become clear if one imagines a situation where the majority of MPs of the main national opposition party join hands with the ruling national party. Does that imply that the main political party itself is obliterated because some of its MPs acted in collusion with the ruling party?

In this regard, it is pertinent to recall the observations made by the Supreme Court's Constitution Bench in its May 2023 judgment in the Shiv Sena case. The Court categorically held that a “legislature party” has no independent existence from the “political party”. The independent existence of the legislature party is recognized only to the limited extent of presenting a defence of the merger, the Court observed (See para 105).

The Supreme Court also affirmed that the legislature party has no right to appoint a whip observing that the Tenth Schedule would become “unworkable” if the term 'political party' is read as the 'legislature party.' The judgment explained the possible dangers which would arise if the power to appoint the whip is conferred on the legislature party. Some of the observations made by the Supreme Court are very relevant in the present case and deserve a careful reading :

“The Tenth Schedule was introduced to thwart the growing tendency of legislators to shift allegiance to another political party after being elected on the ticket of a certain political party… When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognize that the power to appoint a Whip vests with the political party.

To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party. This is not the system of governance that is envisaged by the Constitution. In fact, the Tenth Schedule guards against precisely this outcome.

That a Whip be appointed by the political party is crucial for the sustenance of the Tenth Schedule. The entire structure of the Tenth Schedule which is built on political parties would crumble if this requirement is not complied with. It would render the provisions of the Tenth Schedule otiose and have wider ramifications for the democratic fabric of this country.”

With these observations, the Supreme Court declared that the Speaker was wrong in recognizing Bharat Gogawale, the person nominated by the Shinde group, as the official whip of the Shiv Sena party.

“The decision of the Speaker recognizing Mr. Gogawale as the Chief Whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party”, the Court declared. The Court also declared the decision of the Speaker recognising Mr. Shinde as the Leader as illegal.

However, in his final decision given on January 10, the Speaker accepted Bharat Gogawale as the Whip of the Shiv Sena party. How?. Because he recognized the Shinde group as the original political party. How? Because the Shinde group has a legislative majority. This demonstrates the 'circular logic' in the Speaker's decision, which contradicts the Supreme Court's declaration that a legislative party cannot claim independent existence from the political party. The Speaker also ignored the observations made by the Supreme Court that the test of legislative majority would be futile to assess which group is the real party (para 150 of the judgment) and that the recognition given by the ECI to the Shinde faction will apply only prospectively.

The Speaker's ruling, which came after the Supreme Court's censure against him for delaying the adjudication, can only be seen as a political decision, as it is devoid of legal and constitutional basis and if this is accepted as a precedent, it will amount to endorsing subterfuges which undermine the anti-defection law, encouraging more en-masse defections and 'resort' politics.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He may be reached at manu@livelaw.in)