As SC Hears Rebel Sena MLAs’ Plea, the ‘Solution’ May Lie in a Petition Pending With It

The fight within Shiv Sena legislative party has reached the Supreme Court.

The leader of the rebel group Eknath Shinde and the rebels have filed writ petitions seeking the intervention of the highest court to stop the disqualification proceedings against some rebel members. As the Supreme Court hears and decides on the petition, there are few issues which have been raised as raison d’être in the petition and it would be interesting to observe the debate and its response by the court.

The petitioner Eknath Shinde’s primary submission is that the Deputy Speaker Narhari Sitaram Zirwal’s action in initiating the disqualification proceedings is arbitrary and illegal, since a motion to remove him as Deputy Speaker is pending; and that Sunil Prabhu, the Chief Whip of Shiv Sena no longer holds his post and therefore cannot petition to the Deputy Speaker for disqualification of the rebel members.

The petition also maintains that since Narhari Zirwal did not resign from the primary membership of his party NCP, his actions are biased and based on malafide considerations.

This raises some primary issues. It is true that in the Nabam Rebia case of 2016, the Supreme Court had ruled that a Speaker must refrain from adjudicating on the disqualification petitions, if his own position is challenged by a motion to remove the Speaker. It is also true that the rebel MLAs of Shiv Sena have moved to remove the Deputy Speaker Zirwal. But there are questions relating to procedures and legislative intent of the 10th schedule of the Constitution of India, which lays down the conditions for disqualification of elected MLAs and MPs.

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

The well-accepted parliamentary procedure is that any motion for consideration of the House can only be moved when the summons are issued for holding the session. Since the session of Maharashtra assembly has not yet been summoned, the motion to remove the Deputy Speaker is yet only an intent, and is not a motion.

In the Nabam Rebia case, the Arunachal governor had already issued the summons for convening the session on November 3, 2015, and a proper motion to remove the Speaker was moved on November 11, 2015, so it was a bonafide motion.

If the court takes cognisance of the intent to remove the Presiding Officer of the Assembly as the actual motion, then it may establish a precedence which in future may frustrate the entire procedure for disqualification. Rebel members of any party, with the support of the rest of the opposition, would just need to write a letter expressing the intent to remove the Speaker or the presiding officer and the entire disqualification proceedings would stop, regardless of the merits, procedure  and support for removal of the Speaker or the presiding officer.

This would effectively render the anti-defection provisions a non-starter.

Another point of interest would be to observe if the Supreme Court upholds the sanctity of the verdict of its five-judge bench in Kihoto Hollohan v. Zachillhu case. It was delivered in 1992 and ruled that no interference would be made by the courts in matters of disqualification prior to the decision taken by the Speaker. It said that no interference would be permissible at an interlocutory stage of proceedings. This thumb rule was always observed by the courts and they only intervened once the disqualification orders were passed by the Presiding Officers.

But recently, in 2020, the Rajasthan high court stayed the disqualification proceedings by C.P. Joshi, the Rajasthan Speaker, against the rebel group led by Sachin Pilot. The Supreme Court bench led by Justice Arun Mishra refused to stay the proceedings in the high court, but said that the judgements to be passed by the high court will be subject to the orders of the Supreme Court.

It will interesting to observe if the Supreme Court now restricts to the five-bench judgment or decides to interfere prior to the decision taken by the presiding officer.

Eknath Shinde has also raised the issue of removal of the Chief Whip. He has claimed that Sunil Prabhu doesn’t enjoy the confidence of the majority of Shiv Sena MLAs and therefore has no right to petition for disqualification of the rebel members. But as the current parliamentary procedures stand, Chief Whip is not an elected position. He or she is nominated by the party leader and has a critical role in the disqualification process.

The contention that the Chief Whip can be removed from the position by a majority is also against the spirit of 10th Schedule of the Constitution of India. Schedule 10 does not speak of simple majority of 50% plus one. It stipulates that only a minimum of two-thirds of the members of a legislative party can separate and merge into another party.

There may be instances where the rebel group is more than 50% but falls short of the two-thirds majority. In such cases, then, the simple majority could always remove the Chief Whip and ensure that lawful disqualification proceedings are never initiated against them in the absence of a whip. This would effectively subvert the provisions of the 10th Schedule. 

Eknath Shinde has claimed that he remains the rightful leader of the Shiv Sena legislative party and that the majority of the members have confirmed it. But there has not been a formal meeting of legislative party of the either faction, where the invite was sent to all the members, regardless of their loyalties. The absence of such meeting on either side only confirms that it not a case of dissent, but of defection.

The petition by the rebel group also maintains that Deputy Speaker Zirwal has not resigned from his parent party, so his actions are deemed as biased and malafide. Most importantly, it is not a constitutional requirement for the Speaker, or Deputy Speaker, or Presiding Officer to resign from their respective parent parties. Some do resign, but only out of their own personal convictions. The fact that they continue to be the party members is not the reason enough to doubt the integrity of their decisions per se.

Even the Lok Sabha Speaker has not resigned from his party, so would it mean that aspersions can be cast on all his decisions. Acknowledging such an interpretation would be against the history; and detrimental to the functioning of the parliamentary systems, where the presiding officers often inevitably come from a political party.

In their petition, the rebel group has claimed the support of over two-thirds of the Shiv Sena MLAs in the Maharashtra assembly. In the present circumstances, that may be true. Yet, legally, the support can only be ascertained either on the floor of the House or in in-person meetings with the Presiding Officer, which is the Deputy Speaker in this case. Letters and photographs in media are not sufficient, as the Presiding Officer has to ascertain that the decision taken by the member is voluntary and without any duress. It is not uncommon that some members are forced to take decisions under certain pressure or a proxy decides for them. In parliamentary history, such examples are not rare. The entire functioning of parliamentary democracy is premised on the fact that members are able to exercise their rights without fear and duress.

It is also being said that efforts will be made to petition the Supreme Court for announcement of elections to the post of Speaker of the Maharashtra assembly.

The post is lying vacant since the resignation of Nana Patole, who had quit after he was made the president of Maharashtra Congress in February, 2021. The election of the Speaker in Maharashtra assembly was done by a secret vote, unlike Lok Sabha and several other assemblies, where it is done by an open vote.

Given the constant attempts of the Bharatiya Janata Party to topple the Mahavikas Aghadi government, the alliance pushed for a change in rules and adopted the open voting system in Maharashtra as well. This change was challenged by the BJP MLA Girish Mahajan in the Mumbai high court, and was dismissed. He then filed a petition in the Supreme Court in March, 2022, which has been admitted, but is pending.

When the Maharashtra government wrote to the governor to notify the elections for the post of Speaker in the last session, Bhagat Singh Koshiyari refused to grant the permission, saying the matter was sub-judice. 

Now, for some reason, the BJP is wary of pushing for a floor test.

They seem to be entertaining the idea that waters may first be tested in the Speaker’s election. If they get their Speaker, then it would also be beneficial in the disqualification petitions. But the governor cannot go back on his decision till the petition is pending in the Supreme Court. So it is to be seen if the BJP MLA withdraws his petition to facilitate the election for the Speaker’s post. 

Also, as laid down by the Supreme Court in the Nabam Rebia case, the Governor only has the right to summon the session for a floor test if, in his assessment, the support to the government is uncertain. The judgment has made it clear that the governor cannot otherwise summon a session without the aid and advice of the Council of Ministers; and cannot direct the order of business to be taken in the House. Accordingly, even if the petition by Girish Mahajan is withdrawn, the Governor would not be in a position to schedule the election for the Speaker’s post until the Council of Ministers decides to summon the session.

Will the Supreme Court find a way out of this imbroglio and direct the assembly to hold the election for a new Speaker? It would be interesting to watch because this election is delayed only due to the pending petition in the Supreme Court itself.

Can the court direct an emergency measure to mitigate a situation arising out of petition pending with itself?

Gurdeep Singh Sappal is a former CEO of RSTV.