New Delhi: The Supreme Court Thursday wondered whether the Maharashtra Legislative Assembly Speaker’s decision to declare Chief Minister Eknath Shinde’s faction as the “real Shiv Sena” based on “legislative majority” went against the 2023 SC judgment in the case.
The Shiv Sena, founded by Bal Thackeray, split in June 2022 after Eknath Shinde and several other MLAs rebelled against then-chief minister Uddhav Thackeray. The split led to the fall of the coalition government, the Maha Vikas Aghadi (MVA), which included the Nationalist Congress Party (NCP) and the Congress, apart from the Shiv Sena.
The Supreme Court, in May last year, directed the Speaker to decide on the disqualification of the MLAs, who switched to the Eknath Shinde-led faction, splitting the Sena.
On 10 January this year, in a setback to Thackeray, Speaker Rahul Narwekar ruled the Shinde-led faction was the “real Shiv Sena” when rival factions emerged in June 2022. Narwekar also rejected disqualification petitions filed against 30 Shiv Sena MLAs from both factions and accepted Bharat Gogawale from the Shinde faction as the authorised whip.
“Which faction is the real political party is discernible from the legislative majority which existed when the rival factions emerged,” he had said at the time.
However, on Thursday, the Supreme Court expressed reservations about Narwekar’s decision. A bench comprising Chief Justice of India D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra wondered whether the Speaker’s decision was consistent with the top court’s May 2023 judgment.
ThePrint explains what the Supreme Court said in its 2023 judgment and why the top court felt that the Speaker’s decision might be a contradiction.
Also read: Uddhav Thackeray squandered Shiv Sena, his father’s legacy. He’s the real loser in Maharashtra
‘Not a game of numbers’
Under the anti-defection law in the Tenth Schedule of the Constitution, voluntarily giving up the membership of a party or voting against the whip can be treated as defection. Members indulging in such practices face disqualification.
The only defence available to a dissident group against disqualification is its party’s merger with another party. The Tenth Schedule, earlier, allowed legislators to avoid disqualification on two grounds. The first ground was a split in a party, with no less than one-third of the legislators forming a faction and breaking away. The second ground was a merger with another party when at least two-thirds of legislators support the merger. Nobody faces disqualification in such a situation — neither the members who decide to merge, nor those who stay behind with the original party. A 2003 amendment removed the first ground.
When deciding disqualification proceedings, the Speaker might be called upon to determine the “real party” when the party has split into two or more factions. This is because it is necessary to know which faction constitutes the political party to determine which party members have voluntarily given up membership of the political party under the tenth schedule and faces disqualification.
In its May 2023 judgment, the Supreme Court clarified that the “Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the legislative assembly”.
The top court also said the Speaker must consider the party constitution and other rules and regulations that specify the leadership structure.
“This is not a game of numbers but of something more. The structure of leadership outside the legislative assembly is a consideration relevant to the determination of this issue,” the court had said at the time.
It also said “the inevitable consequence” of the 2003 amendment is that “the defence of a split is no longer available to members who face disqualification proceedings”.
The percentage of members in each faction is irrelevant to determine whether a defence to disqualification is made out, it emphasised.
What the Speaker said
In the present case, the Shinde faction did not merge with any other political party and remained independent.
However, in his 141-page decision, the Speaker said the “2018 leadership structure read with the relevant constitution of the Shiv Sena does not provide a reliable outcome to settle the issue of ‘which faction is the real political party’”.
He then turned to the legislative majority test to rule that the “Shinde faction was the ‘real Shiv Sena political party’ when the rival factions emerged on 21 June 2022”.
This conclusion was reached by noting that the Shinde faction had an overwhelming majority of 37 out of 55 MLAs when the rival factions emerged.
However, on Thursday, CJI Chandrachud read aloud Narwekar’s ruling about discerning the real party from the legislative majority, asking, “See Paragraph 144. He says, ‘Which faction is the real political party is discernible from the legislative majority which existed when the rival factions emerged’. Is it not contrary to the judgment?”
The court is hearing a petition filed by Shiv Sena (Uddhav Balasaheb Thackeray) MLA Sunil Prabhu, who has questioned Narwekar’s decision on the disqualification issue.
Also read: Why Maharashtra speaker declared Shinde faction the real Sena — ‘Legislative strength only aspect’
Maharashtra political crisis
The crisis pertains to the political fallout in Maharashtra in 2022, following differences in the Shiv Sena between groups owing allegiance to Chief Minister Eknath Shinde and his predecessor, Uddhav Thackeray. Shinde broke away along with a significant number of legislators and became the chief minister in July 2022 with the BJP’s support.
During this political drama, the Deputy Speaker of the assembly served the Shinde faction a disqualification notice for voting against the party whip’s directions during elections to the state legislative council.
However, Shinde and others questioned the notice and asserted that the Speaker could not proceed on disqualification petitions while a removal notice was pending against him.
In June 2022, the Supreme Court granted interim relief to the Shinde faction by extending the deadline to file responses to the disqualification notice from 27 June to 12 July.
Two days later, the court allowed a floor test called by then-governor Bhagat Singh Koshyari as it refused to give interim relief to the Thackeray faction on its petition against the summoning of the assembly by the governor.
The Thackeray faction filed a fresh petition in the court, challenging the Speaker’s decision to recognise a new Shiv Sena leader in Lok Sabha as chief whip, saying he was not its nominee.
The court in May last year ruled that former governor Koshyari was not “justified” in asking then chief minister Thackeray to face a floor test in the wake of the crisis in his party. A floor test could not be used as a medium to resolve internal party disputes, it said, adding that the Speaker’s decision to appoint a whip from the Shinde faction was “contrary to law”.
However, the bench did not restore Thackeray as chief minister because he did not face the floor test and tendered his resignation on 29 June 2022 after which Shinde became the chief minister in his place.
(Edited by Madhurita Goswami)
Also read: How Uddhav is rebuilding his Sena for 2024 after Shinde’s defection blow