Why Eknath Shinde’s Breakaway MLAs Still Stand to Be Disqualified

The last few weeks have seen Maharashtra politics in a tizzy. It started with Shiv Sena senior leader Eknath Shinde rebelling along with 34 Sena MLAs on June 20, 2022 to taking oath as chief minister ten days later, on June 30, with BJP leader Devendra Fadnavis as deputy chief minister and Rahul Narvekar as the new speaker of the Maharashtra assembly. On July 4, the Shinde faction, supported by the BJP, won the vote of confidence with the support of 164 members in a house of 288.

In all this chaos, one key question remains not just unanswered but not even asked as much as it should. What is the political affiliation of Shinde and his rebel MLAs? Both sides claim to represent the ‘real’ Shiv Sena. Shinde clearly has the support of the legislators, but does that allow him to claim a right over the entire Shiv Sena, which was built from scratch by the late Bal Thackeray? Can Uddhav Thackeray continue to hold the reins and the legacy of the party founded by his father?

Let’s look at the sequence of events. Shinde was appointed as the leader of the Shiv Sena Legislature Party (SSLP) on October 31, 2019. On June 21, 2022, the Shiv Sena held a party legislature meeting that passed a resolution removing Shinde as SSLP leader and appointing Ajay Choudhary in his stead. The Sena also appointed Sunil Prabhu the chief whip. On the same day, 34 rebel MLAs passed a resolution reaffirming Shinde as the SSLP leader and stated that Choudhary’s appointment was void and inoperative. The rebel MLAs’ resolution also appointed Bharat Gogavale as their chief whip. The 34 MLAs wrote to the deputy speaker asking him not to recognise Choudhary’s appointment as SSLP leader.

Interestingly, the Maharashtra legislative secretariat undersecretary, in a letter sent on June 21 to the SSLP’s in the Vidhan Bhawan, Mumbai, said that Choudhary’s appointment had been approved.

Next, Prabhu sent a notice asking Shinde to attend a meeting at 5 pm on June 22 in Mumbai. Shinde responded on the same day stating that Prabhu did not have the authority to call an SSLP meeting and consequently the notice was invalid. Prabhu held the meeting at the chief minister’s bungalow, Varsha, in Mumbai, wherein the SSLP resolved that the members who did not attend should be disciplined.

On June 25, 2022, Shinde and 15 other rebel MLAs received disqualification notices under Rule 6 of Maharashtra Legislative Assembly (Disqualification on Ground of Defection) Rules, 1986 (“Disqualification Rules”) read with the Tenth Schedule of the constitution. The notice called for replies to be filed by 5:30 pm on June 27. Shinde and the 15 MLAs challenged the notice in two different writ petitions before the Supreme Court, which protected them by way of interim relief by its order dated June 27, extending the time to file replies till July 11, 2022.

On the political side, Fadnavis met Union home minister Amit Shah along with senior advocate Mahesh Jethmalani in New Delhi on June 28. Returning to Mumbai the same day, he met Maharashtra governor Bhagat Singh Koshyari. Immediately after the meeting, Koshyari sent a letter dated June 28 to chief minister Uddhav Thackeray to call for a special session of the Maharashtra Vidhan Sabha on June 20 at 11 am with the single agenda of conducting a trust vote and that the floor test should be held by 5 pm the same day.

The Shiv Sena challenged the governor’s directive in the Supreme Court before the same Vacation Bench that had granted interim relief to the rebel MLAs. The Sena argued that since the matter of disqualification of the 16 MLAs was sub-judice, the floor test should be deferred till the fate of the rebel MLAs was decided. After hearing all the sides till 9 pm on June 29, the vacation bench refused any interim relief with a direction to the Maharashtra government to go ahead with the floor test – but said the floor test would be subject to the outcome of the 16 rebel MLAs’ petition. Within half an hour of the Supreme Court’s order, Thackeray resigned.

However, on July 1, 2022, Sunil Prabhu approached the Supreme Court’s vacation bench for an urgent hearing of the 16 MLAs’ case on the ground that there was no merger of the Shinde faction with the BJP and thus, the moment Shinde was sworn in, he had violated the Tenth Schedule of the constitution. According to Prabhu, Shinde is not the party and his appointment as the chief minister was not democratic, as contemplated by the Supreme Court in its earlier judgments regarding floor tests in a state assembly. The vacation bench agreed to hear this issue along with the main petition of the said rebels on July 11, 2022.

If all this was not enough, the new assembly speaker, Rahul Narvekar, reinstated Shinde as the SSLP leader and rejected the nomination of Chaudhary. Narvekar also recognised the appointment of Gogawale as the chief whip of the Sena. Further, the 16 Shiv Sena MLAs who voted against Shinde during the trust vote are facing disqualification for voting against the whip issued by Gogawale. The speaker’s actions have been challenged in the Supreme Court and will be heard along with the other petitions on July 11.

All the aforementioned issues boil down to one question: Which is the real Shiv Sena? And thus, whose whip will count?

The first question as to which faction constitutes the real Shiv Sena can be decided by the Election Commission (EC). The Shinde faction has to approach the EC to change the status quo by dislodging Thackeray as the ‘party supremo’. But the law on this point is very clear and the same can be found in Article 191(2), read with the Tenth Schedule, of the constitution. The Tenth Schedule, which provides qualifying provisions for defectors, was inserted by the Constitution (Fifty-Second Amendment) Act, 1985, which seeks to penalise and disqualify elected representatives who defect. The Constitution (Ninety First Amendment) Act, 2003, provides that for any merger of a party with another, at least two-thirds of the party members must be in favour of the merger, as opposed to one-third provided under the initial 52nd Amendment.

In the matter of Kihoto Hollohan Vs Zachillhu and Others (1992), the Supreme Court observed that ‘Democracy’ is a part of the basic structure of our constitution; and that free and fair elections are basic features of democracy. One of the postulates of free and fair elections is the provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority. It is only by a fair adjudication of such disputes relating to the validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.

The object of the Tenth Schedule is to curb the evil of political defections motivated by the lure of office or other similar considerations, which endanger the foundations of our democracy. The remedy provided therein is to disqualify from the House a member, of either House of Parliament or of the state legislature, who is found to have defected.

The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule. Paragraph 2(1) relates to a member belonging to a political party which set him up as a candidate at the election. Under Paragraph 2(1)(a), such a member would incur disqualification if he voluntarily gives up his membership of such political party. Under clause (b), he would incur disqualification if he votes or abstains from voting in the House contrary to “any direction” issued by the political party to which he belongs or by any person or authority authorised by it on this behalf without obtaining, in either case, prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of “split” in the original political party or merger of the original political party with another political party.

These provisions recognise the role of political parties in the political process. A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves the political party that had set him up as a candidate, then he should give up his membership of the legislature and go back before the electorate. The same yardstick is applied to a person who is elected as an independent candidate and wishes to join a political party after the election.

Interpretation Clause under Paragraph 1 makes provision for two crucial concepts i.e. “Legislature Party”, which means a group consisting of all elected members of a House for the time being belonging to one political party and “Original Political Party”, which means the political party to which a member belongs for the purpose of Paragraph 2(1). Paragraph 2(1)(b) deals with a slightly different situation, where dissent becomes defection. If a member votes or abstains from voting contrary to “any direction” issued by the political party to which he belongs, he incurs disqualification.

Paragraph 6 provides that any question about a member’s disqualification shall be referred to the chairman or the speaker and his decision shall be final. It further provides that a question on whether the chairman or the speaker has become subject to such disqualification, the question shall be referred to a member that the House may elect on this behalf and his decision shall be final. Paragraph 7 bars jurisdiction of a civil court in respect of any matter connected with the disqualification of a member of a House under this Schedule.

Also Read: Time Is Ripe to Rewrite Parts of Anti-Defection Law Which Politicians Habitually Misuse

According to the Supreme Court in Kihoto, a political party functions on the strength of shared beliefs. Its own political stability and social utility depend on such shared beliefs and concerted action of its members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it, which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by members of the same political party is not looked upon, in political tradition, as a desirable state of things.

In order to save their memberships of the state assembly, the rebel MLAs will have to rely upon the exemption envisaged under Paragraph (4) of the Tenth Schedule by proving/showing that: (a) They represent not less than two-thirds of the members of the legislature party concerned i.e. Shiv Sena in the present case; and (b) that the said members have agreed to such merger with another political party. The said rebels cannot claim any independent existence without merging with another political party, failing which they can be disqualified in terms of Paragraph (2) of the Tenth Schedule.

One fact that has to be remembered is that the question of disqualification will be decided by the speaker. However, it cannot be said that the new speaker will favour the alliance between the BJP and the rebel MLAs even though the speaker is required to decide such disqualification petition free from bias and partisan conduct as well as without being unfair and partial [Balachandra L. Jarkiholi vs B.S. Yeddyurappa and Others (2011)]. Any bias or partiality on part of the speaker may make his order susceptible to challenge as the Supreme Court has held that such orders are subject to judicial review in Kihoto.

The Tenth Schedule does not recognise a ‘split’ in a legislature party and instead recognises a ‘merger’. Therefore, the rebels cannot claim any independent right as the ‘real’ Shiv Sena merely because the Thackeray faction is in minority as far as the numbers of elected Shiv Sena MLAs are concerned. The purported two-thirds members have to merge with another party in any case and there is no other way if they want to avoid disqualification. That is the only valid plea a defector can raise. A political party is not like a company, control of which can be obtained by way of a hostile takeover or by usurping control of the Board of Directors.

Both factions are conscious of the fact that they are bound by the constitution of the Shiv Sena. The Sena constitution has articles for the party flag, party emblem and election symbol, as well as the registered office at Sena Bhavan in Dadar, Mumbai. It also provides for an organisational structure, wherein the Shiv Sena paksha pramukh (party president) is at the very apex of the party. The Sena pramukh has been granted all-encompassing powers and is elected by the members of the Pratinidhi Sabha from amongst the members of the Rashtriya Karyakarini.

Under Article XI(A) of the Sena constitution, the president is the highest authority in the party, and his decisions in all matters concerning the party policy and administration are final. The president can withhold, remove or annul the appointment to any post mentioned in Article VIII therein, which includes the leader of the Shiv Sena legislative assembly. The president has the right to dissolve the Rashtriya Karyakarini at any given time. Most importantly, this article further provides that no party office-bearer or member other than the president has the authority to expel any party office-bearer or member from the party. The Rashtriya Karyakarini has the power to lay rules and regulations regarding the functions of all office-bearers and fronts of the party. But the president has the power to preside over the meetings of Rashtriya Karyakarini and his decision is final and binding on the Rashtriya Karyakarini.

Conclusion

Thus, as the president of the Shiv Sena, Thackeray appears to have sweeping and unfettered powers to expel members and office-bearers of the party under the party’s constitution. Such powers cannot be claimed either by Shinde or by the purported two-thirds majority of the rebel MLAs. This power can also not be bestowed upon the rebels either by the speaker of the Maharashtra assembly or even by the Supreme Court. Even before EC, where the Shinde faction will have the heavy burden to prove their legitimacy and rights over the Shiv Sena, both sides will have to rely upon the party’s constitution to claim any right over the party emblem and election symbol.

Unless the rebels are able to remove Thackery as the party president of Shiv Sena, they cannot claim any right over the party and associated rights like party emblem and election symbol. To sum up, the Shinde faction first has the difficult task of saving themselves from being disqualified under the Tenth Schedule of the constitution. If they survive the rigours of the Tenth Schedule, then they will have the even tougher task of staking their claim under the Sena constitution before the EC.

Abhay Nevagi is an advocate.