Shinde vs Thackeray : Who Is The Real Shiv Sena? 10th Schedule Clinches The Issue - PDT Achary | Full Text Of Interview

PDT Achary, the former Secretary General of Lok Sabha, opined that the tenth schedule of the Constitution plays an important role in determining which faction can claim to be the real political party following a rift.

In this regard, he referred to Explanation (a) to the second paragraph of the tenth schedule of the Constitution, which says "an elected member of a House 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".  So, this means that unless there is a merger with another party, an elected member will be deemed to belong to the political party which set him up as a candidate. Referring to the context of the rebellion in Shiv Sena party in Maharashtra, Achary said that by the application of this Explanation to Paragraph 2 of the tenth schedule, Shinde will be deemed to belong to the Shiv Sena party led by Uddhav Thackeray.

"In my view, the Speaker has to go strictly by the 10the schedule. Now 10th schedule says one thing very clearly and that in my opinion will clinch the issue. That is explanation to paragraph two - it says that it is that party which has set them up as candidates is the party to which they belong. So that means all these members, all the 55 members of Shiva Sena were set up as candidates by the Shiva Sena which is headed by Uddhav Thackeray and therefore all of them belong to Shiva Sena headed by Uddhav Thackeray, unless these members merge with another party", he said.

"..there is only one Shiv Sena which is led by Uddhav Thackeray because it is the party headed by him which set them(Shinde group) up as candidates and there is no ambiguity about this.... So it is the whip which is issued by the Shiv Sena which is headed by Uddhav Thackeray that is valid and if there is a violation of that, then naturally you are liable to be disqualified. This is the way anti-defection law needs to be applied", Achary explained.

He further said the majority within the legislative party cannot be sole determining factor in deciding if the faction can claim to be real party. The entire organisational structure of the party has to be taken into account for that determination, which is to be done by the Election Commission.

Achary was speaking in an interview by Manu Sebastian, Managing Editor of LiveLaw. The video of the interview can be watched here.

The full text of the interview is given below :

Sebastian : When a rift happens in a political party how do we determine which faction represents the real party. This question assumes relevance in the context of the ongoing political developments in the State of Maharashtra.  We have with us Mr. PDT Achary, who is the former secretary general of the Lok Sabha, to discuss the law and procedure on this topic. Two weeks back, we had another interview with Mr.Achari where we had discussed issues relating to disqualification proceedings and anti-defection laws.  So this is a kind of a sequel to that interview.  Now over to you sir, welcome sir.

Achary : Thank You.

In the Maharashtra context, a very curious development has happened.  The so-called rebel group led by the present Chief Minister Mr.Eknath Shinde claims to have the support of majority of the MLAs. So out of the 55 Shiv Sena MLAs, at least 39 MLAs are with Mr.Eknath Shinde.  On the other hand, officially, on paper, Mr. Uddhav Thackeray continues to be the President of the party. So in this context, how do we determine who can claim to be the real party? What is the law and what is the process for such such a determination?

Achary : See, when a party splits, normally the split occurs both in the organisational wing and also in the legislative wing and that has been the pattern. We have seen this happening in most of the parties which have split at different times and therefore when they approach the election commission, there will be two factions of the party. I mean, each faction will contain the organisational part of it and also the legislative party

In this case, you know there is a difference. Here on one side you have the legislative wing of the party and on the other side you have the organizational wing plus a few MLAs but majority of the MLAs are with Shinde who is heading the legislative wing of that party.  But under the law, the legislative wing of the party is a part of the original party political party, because that is the party which is registered as an association of individuals and registered with the Election Commission as per Section 29A of the Representation of People Act, which is headed by Mr.Thackeray.

So on the one hand, you have a legislative party which is not recognized by the law and on the other you have a party which is recognized by the law. Now who will the Election Commission choose as the true party, that is a ticklish question which the Election Commission has to decide.

When there is a split in your party, the Election Commission has its own method of finding out and the law also requires the Election Commission to collect all the facts and then hear people- not only the faction leaders but other people also who are interested in it and after getting all these facts and the statements from all the interested people, the Election Commission will decide. The majority test is the test which has been approved by the Supreme Court. But majority does does not mean that you merely count the number of MLAs or MPs who are with you.  The party organization is much bigger than its MLAs/MPs and you have to see how many of the party member are with one faction and how many of them are with another faction. So that needs to be gone into by the Election Commission. But I think it is a time consuming affair and then again of course it can be challenged in the court and finally it will be settled only by the court.

Question : So you are essentially saying that the mere majority within the assembly is not the sole determining factor for determining which faction can claim to be the real political party. The entire organization structure has to be taken into account and the Election Commission is essentially determining to which group the registered party symbol that should be allotted, right? It is under the Election Symbols(Reservation and Allocation) Order 1968 the Election Commission is exercising jurisdiction. But here, what again complicates the situation is that now the newly elected Speaker has recognized the Shinde group as the legislative party and and the other group has become the rebel group in house and both the parties have initiated disqualification proceedings against each other.  Both the parties have elected their own whips and so allegations and counter allegations have been raised regarding violation of the whip by each other. And parallel disqualification proceedings are here.  So in this context, how do the Election Commission determine, when already the speaker has recognized one faction as the official party.

See the Speaker has no statutory authority to determine this issue. Speaker takes a decision to recognize a particular group or a group only for the sake of convenience of functioning in the house and that is the only criteria that is the only basis on which the speaker takes that decision. Speaker has no statutory authority to decide which faction is the party. That has to be decided by the Election Commission.

Of course they have they filed disqualification petitions with the Speaker and the Speaker has to look into these petitions of both the sides.

In such a situation, in my view, the Speaker has to go strictly by the 10the schedule. Now 10th schedule says one thing very clearly and that in my opinion will clinch the issue. That is explanation to paragraph two - it says that it is that party which has set them up as candidates is the party to which they belong.

So that means all these members, all the 55 members of Shiva Sena were set up as candidates by the Shiva Sena which is headed by Uddhav Thackeray and therefore all of them belong to Shiva Sena headed by Uddhav Thackeray, unless these members merge with another party. Their party label changes only when they merge with another party, otherwise they shall be deemed to belong to the party which set them up as a candidate in the election. So that makes it very clear. Therefore, Speaker cannot run away from this legal obligation or this legal requirement. He has to decide things in accordance with the law that is the thing.  Now anti-defection law is the constitutional law. So it overrides the other laws. I mean the statute laws, particularly the legislations like election symbol order and all that those are not very relevant for deciding an issue relating to the anti-defection law under 10the schedule.  Therefore, Speaker has to stick to this and then Speaker will come to the conclusion that these members actually belong to the Shiva Sena which is led by Uddhav Thackeray, because Mr. Shinde is not the President of that party. He has not elected himself as the President. He  may be the Chief Minister but that does not change his status as a member of the Shiv Sena under the 10th schedule.

So, just to recap what you have said for the easy understanding of our viewers- you are basically saying that the explanation to paragraph 2 of the 10th schedule will play a very crucial role in in this issue. And as per that explanation, a person will be deemed to be belonging to a political party by which he was set up as a candidate. So here since Mr.Shinde and other MLAs were set up as candidates by the Shiv Sena party headed by Uddhav Thackeray,  so they will be deemed to belong to that section, unless there is a merger with another political party as per paragraph four of the tenth schedule.  So this provision, that is explanation to paragraph two of tenth schedule, plays a very crucial factor. And this has to be decided by the Speaker as well while deciding the disqualification petitions. So going by this paragraph, the Shinde group, they are still deemed to be belonging to the group of Shiv Sena headed by Uddhav Thackeray at least for the purpose of the Maharashtra Assembly.

Speaker has to decide whether they have voluntarily given up the membership of the Party and Speaker also has to decide who has the authority to issue whip. So when he examines this issue, number one he has to find out which party these people belong to and then he will know that they belong to the Shiv Sena and there is only one Shiv Sena which is led by Uddhav Thackeray because it is the party headed by him which set them up as candidates and there is no ambiguity about this. So when Speaker decides that, when he finds that that these all these members belong to the Shiv Sena under Uddhav Thackeray,  then it is easy for him to find out which authority can issue the whip. So it is the whip which is issued by the Shiv Sena which is headed by Uddhav Thackeray that is valid and if there is a violation of that, then naturally you are liable to be disqualified. This is the way anti-defection law needs to be applied.

Question : So, can we envisage a situation where the Speaker and the Election Commission, at least theoretically, are taking contrary decisions.  For example, in the disqualification petitions the Speaker is deciding that they have not defected and on the other hand the Election Commission is deciding based on the larger organizational structure that the other group is the real party.  So in such an eventuality whose decision should be prevailing? You had mentioned that 10th schedule will override other laws.Yes, the Speaker's decision should be prevailing in that scenario?

If the speaker decides not to disqualify any of these people, that means if the speaker thinks that they have not violated the whip or they have not voluntarily given up the membership of the party, Speaker can take a decision that they are not disqualified. He will not disqualify them. In that case, this party can go to the court. Election Commission's decision, that is a different kind of issue. Let us understand what the Election Commission's powers are in this regard. What exactly is the nature of the power which election commission enjoys? It is only for allotment of symbol not for any other power or any other purpose.  So it is made very clear in the Symbol Order. It is only for that purpose of announcement of symbol and reservation of symbol that the Election Commission will recognise these parties and decide which part is the real party. But the the anti-defection law deals with another aspect that is the defection from the original party. So naturally there will be conflicts. That is inevitable. That is why I said in the beginning itself that if there is a conflict then naturally it is the anti-defection law that will prevail because it is the constitutional law. This needs to be decided by the speaker on the basis of the law either on the ground that these people have voluntarily given up the membership of the party or they have violated the whip. Now both grounds are available to the Shiva Sena led by Thackeray to go against them because all of them have voted against the direction issued by them.

Sebastian : In the previous interview you had criticized the interim orders passed by the Supreme Court to keep in abeyance the Speakers disqualification proceedings. Both the sides have questioned the appointment of whip by the other party. The election of speaker and the floor test - all these issues have now come before the Supreme Court. So when we apply the tenth schedule to the scenario, how can the situations play out?

Supreme Court will have to merely look at the tenth schedule. That is the law which guides you in such situations. Supreme Court, as I said in the beginning, will have to see which party is authorized to issue whip and which is the real party. That question has also come before the Supreme Court.

Sebastian : There also the explanation to paragraph two to tenth schedule might become relevant.

Yes, Supreme Court cannot take a decision on any other basis. So this is the sole basis on which this decision on this this issue can be can be settled. So if the supreme court says that Uddhav Thackeray's party is the authorized party which can issue the whip, then the other whip will become infructuous and it will become irrelevant and the speaker cannot take cognisance of that whip.

Sebastian : Do you think so this interpretation is a very technical view of matters which is not taking into account the real politics outside. Because as per this explanation to paragraph two, the official party who has nominated, who has set up these candidates, that will be deemed as the political party.  But now in politics, many things may happen. Because one side is alleging that there is an ideological deviation by the other side and claim to the real inheritors of the political ideology of the party.  That is one one argument and if that is finding a majority or a resonance within the house and within the electorate. So in this backdrop, is this a technical view that the person who has set up the party or set up the candidates should be deemed as the official party? Do you think it is in some way restricting the inner democracy or the political workings within a party?

Is there any other basis on which it can be decided, other than this? After all anti-defection law is operating in a particular field. It is for a particular purpose and that is to stabilize the party system and that is the overall object of this law,  apart from strengthening the moral foundation of democracy. Now when you look at that object, then you cannot encourage people moving out of a party out of greed for power and so on. Whatever, be the justification but it is essentially because of the greed for power that this legislative group entered into an alliance with another party without taking into confidence the party leadership

So that is how the party system is being wrecked here. The party leadership is not aware of what the legislative wing is doing.  In a democracy, particularly in the context of India, how can party system survive if people who are elected by the people on the basis of the popularity of that party - after all people elect a candidate because he belongs to a particular party, which is supported by the people, basically it is the party which is the most important player in our democratic system.  Therefore, you cannot be swayed by the fact that ideological considerations etc, which according to do not mean much, because I have seen politics for a very long time and I spent 40 years of my career in in Parliament, where I was rubbing shoulders with politicians only. Therefore I have seen the undercurrents of politics. I very keenly observe things. So I can say that the ideology is the least factor which operates in politics. Nobody bothers about that.  I don't think any political party gives undue importance to ideology. That is only for public consumption. Here basically it is lust for power which propels people towards the power center.  Therefore if you take that as a standard behavior, then of course there can be other way of dealing with it. But otherwise, if you look at the basic object of this constitutional law which was enacted by Parliament, then you have to go by this law not by other considerations. Other considerations may come later when a party officially splits. Then they separate and go different ways and they address the people and the people support them and all that that would be a different kind of situation. But at the moment, we are grappling with a difficult kind of legal and political problem and here is the law which gives you a certain idea about how to deal with. It shows the way.

Sebastian : So just to summarize the points articulated by you. The mere majority in the legislative wing is not the sole determining factor for determining who is the real political party. The entire organizational structure of the party has to be taken into account even in determination of which faction belongs to the real political party. The 10th Schedule of the Constitution plays a crucial role and explanation to paragraph 2 of 10 schedule that says that "a member is deemed to be belonging to the party which set him up as a candidate so long as he is continuing in the house" plays a very crucial role in determining to which party that member belongs to and if that member is deviating from that official stand and if there is no merger as per paragraph four, then he will incur the risk of disqualification, which the Speaker has to decide. The essential jurisdiction of Election Commission is to decide to which group the official party symbol should be allocated and that is again guided by and will be subject to the decision of the10 schedule. The 10th schedule will be overriding the election commission's orders and other rules and regulations, being a constitutional law.

Achary : One more thing I have to add, these people had an option and the 10 schedule had given them an option. That is you merge with another party, then you will no longer be under the influence of this this explanation. You merge with another party, then you will be known by that by that party or by party's name. So anti-defection law gives you an opening and if you have the sufficient number,  you have to merge and then of course the original party has to merge.  But because of the (Bombay)High Court's decision which said that even the two third of the legislative party merges that  is enough and the original party doesn't have to merge-  it was a wrong decision, but then it is a High Court decision that is the law which is applicable in that region. Therefore the majority of the members move out and merge with another party, so then there is no problem. But here the problem is they want to claim that they are the real party.  You know in English, we say that have the cake and eat it too.  So that kind of a situation is there, which may not be possible in all times.

Sebastian : Thank you so much for explaining this very complicated legal muddle.