Do Supreme Court's Orders In Maharashtra Assembly Case Strengthen Tenth Schedule?

In fact, the complexity of the situation arose due to an order passed by the Supreme Court on June 27 in the case Ekanth Shinde versus Deputy Speaker, Maharashtra Legislative Assembly & Others through which the disqualification proceedings initiated by the Deputy Speaker were effectively put in abeyance by extending the time for the dissident MLAs till July 12 to give their responses. The three days notice given by the Speaker was extended by the Court for 15 more days.

The Supreme Court making an interference with the Speaker's proceedings at the interim stage is quite unprecedented. The 9-judge bench judgment in the case Kihoto Hollohan specifically ruled that Courts cannot interfere with Speaker's proceedings at an interlocutory stage and that judicial review is possible only after the Speaker has taken a final decision.

But the Court was persuaded to make the interference by a 5-judge bench judgment delivered in 2016 in the case Nabam Rebia vs Deputy Speaker, in which it was held a Speaker cannot decide disqualification petitions when a resolution seeking his removal is pending. Eknath Shinde camp argued that since the rebels have sent a notice seeking Deputy Speaker's removal, he was not competent to decide the disqualification petitions.

The respondents from the Uddhav Thackeray group sought to distinguish Nabam Rebia by saying that there, the resolution was pending in the assembly after the notice period of 14 days, whereas here, the Deputy Speaker had rejected the resolution sent by rebels at the threshold on the ground that it was sent from an unverified source. They also argued that "removal" under Article 179 contemplates that there should be charge of misconduct against the Speaker, and a mere expression of no-confidence will not suffice. They relied on Article 212 of the Constitution, which bars Courts from inquiring into legislative proceedings, and pointed out that disqualification proceedings are deemed to be house proceedings within the meaning of Article 212 as per Paragraph 6 of the 10th Schedule. Further, they argued that to apply Nabam Rebia dictum generally in all cases will be disastrous for the tenth schedule, as it gives a loophole for a defector to shield disqualification proceedings by merely sending a notice seeking Speaker's removal. It was also highlighted that even in Nabam Rebia, the judicial interference came after the Speaker's order and not at an interim stage.

The Court felt that the issues deserve consideration and posted the case on July 11, after calling for affidavits from the respondents. The Court also extended the time to reply to disqualification notices till July 12. No reason was stated in the order for making this unprecedented interim interference with the Deputy Speaker's proceedings. The bench comprising Justices Surya Kant and JB Pardiwala orally said that they do not want to "alter the status quo".

The order was a shot in the arm for the Shinde camp. Also, it catalyzed quick events in the political stalemate prevailing for over a week. The Governor entered the scene and demanded a floor test within a day.

Now it was the turn of the Uddhav camp to approach the Court against the Governor's direction, arguing that floor test can't be held when disqualification proceedings are pending. The Shinde camp relied on the decision in Shivraj Singh Chauhan vs Union of India(MP assembly case 2020) which held that pendency of disqualification proceedings can be no ground to defer floor test. The Uddhav side sought to distinguish Shivraj Singh Chauhan by arguing that it was a case where the Speaker himself was sitting over the disqualification petitions without taking a decision, and not a case where the Court had placed a fetter on him from deciding.

The Court declined to stay the floor test. As in the first order, no reasons were given here as well. "We do not find any ground to stay convening of the Special Session of the Maharashtra Vidhan Sabha on 30.­6.­2022, i.e, tomorrow at 11.00 a.m. with the only agenda of a trust vote", the order stated.

The Court even said during the hearing that it can annul the floor test at a later stage if there are reasons, though it is doubtful if a floor test is reversible in realistic and practical terms. Many also wondered why the same logic was not applied in relation to disqualification proceedings as well.

It appears that the Court was persuaded by the argument that Uddhav Thackeray has lost his numbers. Because, during the hearing, the bench orally mentioned a "hypothetical situation" where a Chief Minister, who has lost majority, "misuses" the office of Speaker to issue disqualification notices. The other "hypothetical scenario" of legislators who may have incurred disqualification trying to stall the proceedings by seeking Speaker's removal- which was cited by the Uddhav camp - does not appear to have seriously engaged the Court's consideration at this stage.

What should be the guiding test for approach towards 10th schedule?

It is a fact that the Court was dealing with an unprecedented case with a web of knotty issues. When a situation requiring a novel approach in relation to the tenth schedule arises, the guiding test ought to be if the order to be passed will give a premium to defectors and incentivise horse-trading. The result should advance the objectives of the anti-defection law. During the hearing, the Court had orally said that its intention was to strengthen the tenth schedule. In the instant case, by giving a go-ahead to the floor test after stalling the Deputy Speaker's proceedings, was an imbalance created?

The results are there for everyone to see. There was a government which had been ongoing for over two and a half years. A sudden rebellion erupts. The rebels take resort first in Gujarat, and then move to Assam and come back to Goa -states where the opposition party is in power. The questions whether their conduct amounts to defection are still alive. There is no merger with another party in the instant case, which is the only exception for disqualification under the tenth schedule. The Shinde group's claim that they have not left the party and that they are the real Shiv Sena is also a matter open for determination. Soon after the Supreme Court's order, Uddhav Thackeray announced resignation. Rebel leader Eknath Shinde was sworn in as the Chief Minister on June 30 with the support of the opposition party.

Though the Supreme Court said that its intention is to ensure that the status quo is not altered, the effect of its orders are that an ongoing government got toppled down and the rebel group gained benefits, even while questions relating to their disqualification are pending (Theoretically, the disqualification proceedings can still be proceeded).

In a case relating to the tenth schedule, should the Courts lean towards an approach which will not destabilize an ongoing government and will not encourage defectors? Do voters have no right to a stable government?Relevant here is the observation made by the Supreme Court in the 2019 Karnataka MLAs case that "political parties are indulging in horse trading & corrupt practices due to which citizens are denied of stable governments". In that judgment(Shrimant Balasaheb Patil vs Hon'ble Speaker, Karnataka Legislative Assembly), the Court had observed that "Parliament is required to re-consider strengthening certain aspects of the Tenth Schedule ,so that such undemocratic practices are discouraged".

In the 2020 case relating to Madhya Pradesh political crisis (Shivraj Singh Chouhan v Speaker, Madhya Pradesh Legislative Assembly), the Supreme Court made stronger observations against the trend of poaching of legislators.

"The spectacle of rival political parties whisking away their political flock to safe destinations does little credit to the state of our democratic politics.It is an unfortunate reflection on the confidence which political parties hold in their own constituents and a reflection of what happens in the real world of politics", the judgment authored by Justice DY Chandrachud stated.

Terming such practises of poaching, political bargaining and horse-trading as 'burgeoning evils', Justice DY Chandrachud observed that "breakdown in the composition and allegiances of the political party due to private allurements offered to members is being increasingly seen" and said that "law may have to evolve" to address these issues.

The Maharashtra imbroglio has exposed certain short-comings in the tenth schedule. In this background, the following issues require clarity :

1. Should a mere notice sent by dissident MLAs seeking Speaker's removal bar the Speaker from exercising jurisdiction under the 10th Schedule? Should there be yardsticks to ensure that this method is not abused by dissidents to escape disqualification?
2. Can there be an absolute rule that floor test must be conducted independent of the disqualification proceedings? Under what circumstances floor test can be conducted when disqualification proceedings are pending? If MLAs who have incurred disqualification are allowed to participate in floor test, will it not amount to rewarding defection? So, whether the dictum that pendency of disqualification proceedings cannot bar floor test can have a general application? Or should it be confined to only cases where the Speaker is deliberately delaying a decision?
3. Should there be amendments in law to bar disqualified MLAs from elections for a certain period, in view of the trend of turncoats resigning and returning as MLAs in new party tickets during the term of the same assembly?

Although the Government in Maharashtra has now changed, the petitions are still pending and the Supreme Court may take note of the larger issues relating to tenth schedule in these matters to iron out the creases in the ant-defection law, so that this "constitutional sin" is adequately prevented.

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