‘It should be clarified that under the Tenth Schedule, Mr. Thackeray’s party is not a faction; This is the original political party’. Photo Credit: PTI
The most interesting thing about the Supreme Court of India’s decision on the Shiv Sena issue is that both sides seem to favor it. The Chief Justice of India has clearly analyzed the issues with clarity and arrived at conclusions with a great deal of ingenuity. However, it is far from common citizens how each party can think that the statement of law contained in the judgment is in its favor. Therefore, it is necessary to analyze the judgment and find out what the apex court of the country has actually said on the contentious issues brought before it.
floor test was wrong in law
The action of the Governor of Maharashtra to call for the floor test was severely criticized by the court, which termed it illegal. The judgment says, “In the present case the Governor had no objective material to indicate that the present Government has lost the confidence of the House and should be called for a floor test. Therefore, the exercise of discretion by the Governor in this matter was not in accordance with law.” The Court has said in so many words that the Governor is a constitutional authority and should not involve himself in any internal or inter-party disputes. Well, it is logical for the court to say that the resignation of Uddhav Thackeray as chief minister before the floor test has effectively prevented the court from restoring his chief ministership and thereby doing complete justice in the matter. But there is no doubt that the governor erred legally in calling for a floor test.
However, the Constitution Bench finds nothing wrong in the same Governor inviting Eknath Shinde to form an alternate government. Of course, it is the constitutional responsibility of a governor to explore the possibility of an alternative government in the event of the fall of the existing government. No one can fault the governor for undertaking that exercise. But the governor’s action of calling for a floor test, which has been declared illegal by the court, triggered the chief minister’s resignation. The result of this ‘illegality’ was the formation of an alternative government. It is naïve to believe that the effect of that illegality disappeared the moment Uddhav Thackeray resigned. As it happened, the governor swore in Mr. Shinde as chief minister, a member of the same Shiv Sena to which Mr. Thackeray belonged, with great promptness.
As per universally accepted convention, in all democratic countries, when a government falls, the constitutional head, the governor or the president, asks the leader of the opposition whether he can form the government. The Governor of Maharashtra did not ask the Leader of the Opposition in the Assembly whether he was in a position to form the government. Instead, he chose another member of the Shiv Sena, whose government had just resigned, to form the government. This action of the Governor showed that he was a willing party to the ongoing internal-party conflict in the Shiv Sena.
The Court has clearly stated that the Governor shall not enter into the arena of internal or inter-party conflicts. But that’s exactly what was happening. Therefore, when the Constitution Bench gives nod to the Governor to swear in the Shinde government, it recalls the continuing effect of the Governor’s “illegal” act in calling for a floor test. The Supreme Court seems to have overlooked the immorality of the entire exercise. The verdict lost its moral timing here.
whip legality
Now on the question of disqualification of MLAs who defy the whip; The core issue is whose whip is valid. As it happened, both the groups issued whips to all members of the Shiv Sena party and each group filed a disqualification petition against the other group. It has been upheld by the Court that the decision on the disqualification petition must first be taken by the Speaker. Therefore, the matter of disqualification has been sent back to the Speaker. The most basic question to be raised in this context is whose whip is valid. The Supreme Court has clearly said in the judgment that the political party can appoint the leader of the Legislature Party along with the Whip and not the Legislature Party. However, the judgment has created unnecessary confusion by saying that when there is a split in a party, two factions arise and one faction is not a party.
As a matter of fact, the Tenth Schedule contemplates an original political party and a faction which arose as a result of a split in the original party when the split provision was included in paragraph 3. After the split provision has been omitted, the original political party changes only when a merger takes place under paragraph 4. When the original political party merges with another party, either that party becomes the original political party or a new party is formed after such merger. The point is that there is always a core political party which is the reference point for the purpose of deciding the question of disqualification.
The Tenth Schedule does not contemplate two rival factions at any point of time. The interpretation of paragraph (2)(1) is very important in determining the question. It 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.” This clarification clarifies the party affiliation of a defecting member. According to this explanation, all members of the Shinde faction belong to the parent political party, the Uddhav Thackeray-led Shiv Sena. It must be clarified that under the Tenth Schedule, Mr. Thackeray’s party is not a faction; It is the original political party. According to the judgement, only this party can issue a valid whip. Hence, all the members who defy the whip of Uddhav Thackeray can be disqualified. It is not clear why the judgment did not consider the above explanation of paragraph (2)(1). As long as this paragraph is in operation, the speaker does not have to look for other evidence to decide which party can issue a valid whip. It is the original political party that can issue the whip.
The purpose of the anti-defection law is to punish defecting legislators and prevent destabilization of political parties. The purpose of paragraph 15 of the symbol order is to decide which faction in a political party is to be in the event of a split. The anti-defection law does not recognize any division. It disqualifies all those members who voluntarily give up the membership of the party or who disobey the whip issued by the party. The speaker is not called upon to decide which faction is the real party. The statute settled that question by way of paragraph (2)(1) (Explanation).
The judgment lacks clarity where it says, “the effect of deletion of para 3 is that the two factions cannot be deemed to form a substantive political party”. The Speaker is required to decide the question of defection on the basis of the above paragraph. The Election Commission of India (ECI) may follow its own criteria to decide which faction is a party. The Speaker has to decide on the basis of the Tenth Schedule which MLA has defected from the original political party. ECI decides this on the basis of tests made by it.
The decision creates a certain amount of confusion by talking about factions and requiring the Speaker to decide which faction is the real party. The Supreme Court could have conclusively said that it is Uddhav Thackeray’s party which is the original political party and that party alone can issue a valid whip. If he had said so, Mumbai would not have been in the state of confusion it is in today.
PDT Acharya is the former Secretary General of Lok Sabha