The anti-defection law applies even if a faction splits from a political party and manages to cobble up a majority within the party itself, the Supreme Court observed in a hearing in the political dispute between former Maharashtra Chief Minister Uddhav Thackeray and incumbent Eknath Shinde.
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"A split does not postulate that people who are party to the split leave the party… The Tenth Schedule (anti-defection law) also operates when a group of persons, whether minority or majority, claim they belong to the same party," Chief Justice of India D.Y. Chandrachud, heading a Constitution Bench, addressed Mr. Shinde's counsel, senior advocate Neeraj Kishan Kaul.
Whether a faction was the majority or minority makes no difference under the Tenth Schedule, the Chief Justice said.
Mr. Shinde's faction had rebelled from the Thackeray government, managed to take a majority of the party's legislators to their side, leading to the fall of the government.
Mr. Kaul, however, asked whether Mr. Thackeray, without a majority on his side, had any moral or political authority to continue as Chief Minister.
To this, the Chief Justice Chandrachud, later on in the hearing, drew attention to the intervention of the Supreme Court and its order on June 27, giving Mr. Shinde and his camp of MLAs 12 days' leeway to respond to the then Deputy Speaker Narhari Zariwal's notice on the disqualification petitions against them.
"Suppose the interim order was not passed on June 27, which according to them effectively stayed the hand of the Speaker to proceed with the disqualification. They are saying the Speaker would have disqualified these persons… Had they been disqualified, they would have ceased to be members of the House. If so, would the Governor have still been justified in calling for a trust vote?" the Chief Justice asked.
The Chief Justice said the situation would have been very different if the court had not intervened and the Speaker had disqualified them.
"Assume for a moment this court had not passed the order, the Speaker would have disqualified these people. If they were disqualified, they would have gone out. The Governor would have then called for a trust vote with the one change that Mr. Shinde would not have been called upon to be the Chief Minister. Then the Governor would have called upon, perhaps the BJP, to form the government," the Chief Justice said.
Nabam Rebia verdict
Mr. Kaul said it was the Supreme Court's own judgment in Nabam Rebia which prevented the Speaker from taking action on the disqualifcation. Mr. Zariwal himself was facing action. Under the Rebia judgment, he had to clear his name before proceeding with the disqualifcation process against the Shinde camp.
"To swear in Mr. Shinde as Chief Minister and the opportunity given to him to establish majority on the floor of the House on June 30 only came because the Speaker could not disqualify him. For if he had disqualified him, all the 39 would have gone out," the CJI said.
However, the court agreed that the Speaker had acted in "post-haste" in dealing with the disqualification process.
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The Supreme Court's intervention on June 27 was based on a petition by Mr. Shinde that he was given only 48 hours to respond to the disqualification notice, while the law allowed him seven days.