Speaker’s view on 10th schedule open to challenge: Experts

The speaker’s verdict on Wednesday evoked contrasting emotions from the rival factions — while chief minister Eknath Shinde-led faction celebrated the speaker’s decision terming it “the victory of the Indian Constitution and democracy

Mumbai: Maharashtra assembly speaker Rahul Narwekar’s verdict on Wednesday in a batch of petitions filed by the two factions of the Shiv Sena seeking disqualification of rival camp’s legislators may open a new chapter in the Sena vs Sena tussle, according to legal experts, who opined that the speaker’s interpretation of the Tenth Schedule of the Constitution can be challenged in the apex court.

Nagpur:14December2023 A group photo of the existing MLAs of the 2019 Vidhan Sabha including Speaker Rahul Narvekar, Chief Minister Ekhnath Shinde, DCMs Devendra Fadnavis with Ajit Pawar and others Ministers and MlaS was organised outside the Vidhan Bhavan premises during the Winter Session of Maharashtra State Assembly, Nagpur. Thursday. Dec 14, 2023. Photo by Sunny Shende:PM100029 (PTI)

The speaker’s verdict on Wednesday evoked contrasting emotions from the rival factions — while chief minister Eknath Shinde-led faction celebrated the speaker’s decision terming it “the victory of the Indian Constitution and democracy”, the group led by Uddhav Thackeray described the verdict as “a murder of democracy and an insult to the Supreme Court” and said they will challenge it in the apex court.

“In this case, substantive law, which is the anti-defection law, has been completely ignored. Its objective that no one should be allowed to leave the party for power has left with no meaning,” Ulhas Bapat, a constitutional expert and a law professor from Pune, said.

In his verdict, Narwekar said the Tenth Schedule of the Constitution could not be invoked to quell “intra-party dissent and indiscipline”. The Tenth Schedule — also known as the anti-defection law— provides that members of political parties who disobey the whip or vote against the party in a confidence motion, will face disqualification.

“The Supreme Court had stated that legislative party cannot be considered as the original party but the Speaker in the garb of ambiguity in the Shiv Sena’s constitution, declared the legislative party headed by Eknath Shinde as the real party,” Bapat said. “To me it is almost negation of Tenth Schedule… The verdict appears to be a proper guide on how to defect from a party.”

In his ruling in the over 18-month-long tussle born out of the vertical split in the Shiv Sena in June 2021, the assembly speaker held the Sena chief did not have the power to remove any leader from the party. Narwekar also rejected the argument that the will of the party chief and the will of the party were synonymous.

Moreover, the speaker held that the 1999 Shiv Sena constitution submitted to the Election Commission was the valid constitution for deciding the issues, while rejecting the Thackeray group’s contention that the amended constitution of 2018 should be relied on.

Senior lawyer Majeed Memon said the speaker seems to have overlooked the guideline determined by the Supreme Court and the verdict can be legally challenged. “Uddhav Thackeray-led party was not a breakaway group. But the speaker chose to consider the election commission decision while giving his verdict and relied on the 1999 constitution of Shiv Sena — submitted by the Eknath Shinde-led faction — as valid, instead of 2018 constitution of the party which says the will of the paksha pramukh (party chief) is the will of the party,” Memon said.

Anant Kalse, former principal secretary of the Maharashtra legislature, also noted that the verdict seems to have changed the interpretation of a legislature party, paving the way for anyone having majority to get control of the party. “It is a new interpretation and cannot be called as a fair interpretation of the Tenth Schedule. It will have to be tested on the touchstone of the constitution,” Kalse said.