Shiv Sena Case | Speaker's Decision Recognising Eknath Shinde As Leader & Gogawale As Whip Illegal; Only Political Party Can Appoint Whip & Leader : Supreme Court

In the Shiv Sena case, a Constitution Bench of the Supreme Court found fault with the Speaker of Maharashtra Legislative Assembly for recognising the whip nominated by the Eknath Shinde-led group as the Chief Whip of the Shiv Sena. The Court also held that the decision of the Speaker to recognize Mr.Eknath Shinde as the Leader of the Shiv Sena Legislature Party was illegal as the Speaker did not ascertain if the decision had the backing of the political party.

A Constitution Bench led by Chief Justice of India DY Chandrachud held that it is the "political party" which has the power to appoint a whip and the leader and not the "legislature party".

The rebel group led by Shinde had claimed that they are the "legislature party" since they have the majority of MLAs. Therefore, they claimed the right to appoint the party whip and group leader.  

'Political party' in tenth schedule cannot be read as 'legislature party'

In this context, an issue arose as to who has the power to appoint the party whip- the political party or the legislature party.

To decide the issue, the Court referred to Paragraph 2 of the 10th schedule of the Constitution, which contains provisions to deal with defections. Paragraph 2(1)(b) of the Tenth Schedule provides that the direction to vote or abstain from voting must be issued by the political party or by any person or authority authorised by it. While the schedule does not define "political party", explanation to Paragraph 2 provides that an elected member of a House shall be deemed to belong to the political party by which they were set up as a candidate for election.

"The provisions of the Tenth Schedule stipulate in unequivocal terms that the direction must come from the political party and not the legislature party. The distinction between political party and legislature party is made in the definition clause in Paragraph 1. There are no two ways about it. The Tenth Schedule would become unworkable if the term ‘political party’ is read as the ‘legislature party'", the Court observed.

The Court also noted that the Representation of the Peoples Act does not recognise the concept of a legislature party. Under the Act, a political party can get registration even if it does not have a representation in the legislature. 

Power to appoint whip with the 'political party'

The Court further noted that the tenth schedule is enacted with the objective of preventing political defections.  "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", it said.

To hold that it is the "legislature party" which appoints a whip would mean that a group of MLAs can disconnect themselves from the "political party", although they were fielded in the elections by the political party and won the polls on the basis of the campaign and the strengths of the political party.  The Court emphatically stated that allowing legislative wing to act disconnected from the political party "is not the system of governance that is envisaged by the Constitution".

Factual application

Coming to the facts of the case, the Court noted that in November 2019, the MLAs resolved that all decisions will be taken in the name of Mr.Uddhav Thackeray and Mr.Eknath Shinde will be appointed as the leader of the Shiv Sena Legislature Party and Mr.Sunil Prabhu as the Chief Whip. On June 21, 2022, the meeting held under the leadership of Mr.Thackeray resolved to remove Mr.Shinde as the leader of the legislature party and to appoint Mr. Ajay Choudhari in his place. On the same day, the rebels under Shinde held a parallel meeting reaffirming the appointment of Mr.Shinde as the leader of the legislature party, cancelling the appointment of Mr.Prabhu as the Chief Whip and replacing him with Mr.Gogawale.

On July 3, 2022, the newly elected Speaker Mr. Rahul Narwekar, appointed Mr. Shinde as the Leader and Mr. Gogawale as the Chief Whip. Finding fault with this decision, the Court observed :

"The Speaker was aware of the emergence of two factions in the legislature party on 3 July 2022 when he appointed a new Whip and a new Leader because the resolution of the respondents specifically mentions that a “split” had occurred due to prevailing dissatisfaction in some MLAs of the Shiv Sena. Further, the fact that there were two resolutions appointing two different Whips and two different Leaders would no doubt have resulted in the Speaker inferring that there were two factions of the Shiv Sena. The Speaker on taking cognizance of the resolution passed by the faction of SSLP led by Mr. Shinde, did not attempt to identify which of the two persons who were nominated (Mr. Prabhu or Mr. Gogawale) were authorised by the political 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 added.

Shinde's appointment as leader illegal

The Court further held that the decision of the Speaker in recognising Mr.Shinde as the Leader of the Shiv Sena Legislature Party is illegal, as it was taken without determining if the resolution passed by the faction of MLAs represented the will of the political party.

"The Speaker by recognising the action of a faction of the SSLP without determining whether they represented the will of the political party acted contrary to the provisions of the Tenth Schedule, the 1986 Rules, and the Act of 1956. The decision of the Speaker recognising Mr. Shinde as the Leader is illegal"

Speaker must recognise Whip and Leader authorised by political party

"The Speaker must recognize the Whip and the Leader who are duly authorised by the political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement", the Court stated. It also held that the Speaker must decide the disqualification petitions pending before him within a reasonable period of time.

"The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party. The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 3 July 2022 is contrary to law. The Speaker shall recognize the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgement", the Court stated in its concluding portion.

The Court also held that the Election Commission's decision to recognize Shinde group as the official Shiv Sena will operate only prospectively and will not impact the disqualification proceedings which were initiated earlier.

Top Court today said though the Governor's decision calling for floor test was wrong and the Speaker was also in error, it cannot order status quo ante and reinstate Uddhav Thackeray government as Thackeray resigned without facing floor test. Since Thackeray voluntarily resigned, the Court held that the Governor was right in inviting Eknath Shinde to form the government with the support of BJP.

Other reports about the judgment can be read here.