The Supreme Court on Wednesday queried about the “consequences” if the dissent of Maharashtra Chief Minister Eknath Shinde’s faction amounted to a “split” from the original Shiv Sena party which was led by Uddhav Thackeray even as it mulled over referring the bitter political tug-of-war between the two factions to a Constitution Bench.
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A “split” from the original political party without a subsequent merger with another party or formation of a new faction is no longer a defence from disqualification under the Tenth Schedule (anti-defection law) of the Constitution. Mr. Shinde’s faction has so far neither merged with another party nor formed a new party. They claim to be the “real” Shiv Sena.
Paragraph three of the Tenth Schedule was removed from the Constitution by the Ninety-First Constitutional Amendment of 2003. This provision had said that disqualification does not apply if a political party split and not less than one-third of the members of the original party form a new faction.
“I have some doubts. This is just a thought process. This is a politically sensitive case… But after the removal of paragraph three, the concept of ‘split’ (as a defence against disqualification) is not recognised… Now, what are the consequences?” Chief Justice of India N.V. Ramana asked the Shinde faction’s lawyers.
While observing that the purpose of deletion of paragraph three as a defence from anti-defection law has to be considered in depth, the court, for the time being, asked the Maharashtra Assembly Speaker to maintain status quo on the disqualification proceedings against MLAs from both Shinde and Thackeray factions. The latter group was issued disqualification notices by the Speaker after voting against Mr. Shinde in the floor test. The court directed the Assembly secretariat to keep its records in safe custody.
“Paragraph three is irrelevant here. They (Shinde loyalists) never reached the point of a split from the Shiv Sena. Raising your voice within the party without crossing the Lakshman Rekha is not an act inviting disqualification for defection… The then Chief Minister (Thackeray) saw the writing on the wall as more and more MLAs joined the other side. He resigned… Heavens will not fall if a Chief Minister is removed and another member of the party comes in his stead,” senior advocate Harish Salve, for Mr. Shinde, countered.
Mr. Salve accused the Thackeray faction and Deputy Speaker Narhari Zariwal of “throttling inner-party democracy” by initiating disqualification proceedings against Mr. Shinde and other MLAs.
“It is not defection the moment you question the authority of the leader by not leaving the party, but by staying within the party fold and by saying that ‘we will gather enough strength to defeat you on the floor of the House’… Defection is if you are joining hands with somebody else or if you support another party’s candidate… Anyway, let the Speaker decide the disqualifications. My Lords have never interfered in the workings of a party or work as a Tenth Schedule Tribunal,” Mr. Salve submitted.
Senior advocates Kapil Sibal and A.M. Singhvi said if Mr. Salve’s arguments have to be accepted, “every government will be toppled”.
“Let’s say 10 MLAs can split from their party without fear of the anti-defection law... the whole Tenth Schedule would be turned topsy-turvy,” Mr. Sibal submitted. Mr. Singhvi said bringing ‘split’ back as a defence would be like “driving a coach into the Tenth Schedule”.
Mr. Sibal, assisted by senior advocate Devadutt Kamat and advocate Amit Pai, said after the “split” the Shinde faction helped vote a BJP candidate as Speaker in violation of the party whip.
“The political party decides who would be the leader of the House and the whip. The leadership of a party cannot be decided in the House. Forty members of a political party cannot decide… You (Shinde) cannot sit somewhere else and arrogate to yourself the party, saying ‘I am the political party’. The party as a whole decides on the leader,” Mr. Sibal argued.
“Are we in such a desperate situation that a man (Thackeray) who does not enjoy the support of even 15 MLAs of his party has to be brought back by the court?’ Mr. Salve retorted.
But Mr. Singhvi submitted that the Governor could not have sworn in as Chief Minister a person who has “separated” himself from the party when questions on his disqualification were already pending in the Supreme Court. Mr. Singhvi said the court should decide the question of disqualification as the Speaker has “amazingly” issued notices against MLAs who voted against Mr. Shinde while no action has been taken on the disqualification petitions filed against Mr. Shinde and his loyalists.
The court asked Mr. Salve to file a counter-affidavit and directed the lawyers to frame their legal issues and file a compilation. The Bench listed the case on August 1.
