NCP Rift : Examining Validity Of Ajit Pawar Group's Actions In The Light Of Supreme Court's Judgment In Shiv Sena Case

Monsoon seems to be season for high political drama in Maharashtra. The script of the drama appears same, only the actors change. If it was the rift within the Shiv Sena party which set off dramatic events last Monsoon, this year it is the rift within the Nationalist Congress Party (NCP). A section led by Ajit Pawar and Praful Patel have broken ranks with the NCP supremo Sharad Pawar and have joined hands with the BJP and Shinde Sena. In a sudden move on a Sunday, Ajit Pawar was sworn in as the Deputy Chief Minister and 8 other NCP MLAs took oath as Ministers in the Eknath Shinde-led government.

The official NCP was quick to react by moving a disqualification petition against Ajit Pawar and the 8 MLAs who joined Shinde Government. In return, Ajit Pawar claimed that he has the support of majority of NCP MLAs and that he represents the 'real' NCP. Praful Patel announced the appointment of Ajit Pawar (who was the leader of opposition till July1) as the leader of the NCP legislative party in the assembly.

These developments mirror the rift in the Shiv Sena party between Uddhav Thackeray and Eknath Shinde factions. Therefore, the judgment delivered by the Supreme Court on May 11 in Subhash Desai vs Principal Secretary, Governor of Maharashtra which answered the legal issues arising out of the Shiv Sena rift are squarely applicable to the NCP scenario as well. Let us see whether the NCP breakaway group's claims will pass the legal muster if the principles expounded by the Supreme Court's Constitution Bench in the Shiv Sena case are applied.  

'Split' no longer a defence against disqualification under the 10th schedule

The Supreme Court made it clear in the judgment that the 10th schedule of the Constitution, which embodies the anti-defection law, does not recognize 'split' with a party as a defence against disqualification. The only defence is merger with another party. Here, the Ajit Pawar-faction has not merged with any other party; instead, they claim that they are the 'real' NCP. The Supreme Court in categorical terms stated that the claim of being the 'real party' is not at all a defence under tenth schedule. 

"...no faction or group can argue that they constitute the original political party as a defence against disqualification on the ground of defection", the Court stated in paragraph 163 of the judgment.

"The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction. The defence sought to be availed of must be found within the Tenth Schedule as it currently stands", the judgment added in paragraph 164. In the subsequent paragraph, the judgment explained that if a 'split' has occurred and the rival faction is not able to establish any of the defences available in the tenth schedule, then it will stand disqualified. Importantly, the Court stated that "percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out". This means that even if the split faction has majority in the assembly, they are still liable to get disqualified.

Legislature party has no independent existence from political party

It appears that the Ajit Pawar faction is seeking legitimacy by claiming support of the majority of the MLAs. As per some reports, the faction claims the backing of 37 of 53 NCP MLAs. Even if that be the case, a mere majority in the legislative wing is not sufficient to stake a claim that they are the real party, going by the Supreme Court's judgment in the Shiv Sena case.

The judgment categorically stated that legislature party cannot be separated from the political party. The independent existence of legislature party is recognized under the tenth schedule only for the limited purpose of considering the defence of merger (Para 105 of the judgment).

There are also some reports that the Ajit Pawar-faction has appointed their member as the chief whip of the NCP legislative party. This action is also impermissible in law, as the Supreme Court has propounded that only the political party can appoint the whip. The Court held that tenth schedule speaks of only the "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", 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"(See Para 113 of the judgment).

In the Shiv Sena case, the Supreme Court held as illegal the decision of the Speaker to recognize the whip appointed by the Shinde group as the official whip of the Shiv Sena party. It also held as illegal the Speaker's recognition of Shinde as the leader of the Shiv Sena legislature 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"

"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.

Is legislature party majority sufficient to seek official recognition?

In the Shiv Sena case, the Supreme Court made an interesting observation in paragraph 150 that the test of legislative majority will be futile in assessing which faction "in cases such as the present one". It may be noted that the Election Commission granted official status to Shinde faction solely relying on the legislative majority.

"In arriving at this decision, it is not necessary for the ECI to rely on the test of majority in the legislature alone. In cases such as the present one, it would be futile to assess which group enjoys a majority in the legislature. Rather, the ECI must look to other tests in order to reach a conclusion under Paragraph 15 of the Symbols Order. The other tests may include an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test"

Applying the principles laid down by the Supreme Court, the split by the Ajit Pawar-led group has no legal validity and the rebels are liable to disqualification under the tenth schedule, if they cannot come up with a defence of merger. The claim of being the original party is not a recognized defence under the tenth schedule. Also, only the NCP Political Party can appoint the leader and the whip for its legislative party and the rival group cannot usurp such power.

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