What next in Maharashtra? Legislative and legal possibilities

By, New Delhi
Jun 29, 2022 11:30 AM IST

On Monday, the dissidents (though they don’t see themselves as that) received a breather when the Supreme Court restrained deputy speaker Narhari Zariwal from disqualifying 16 rebel MLAs until it decides whether Zariwal has the authority to entertain the disqualification petitions when a motion seeking his own removal is pending.

As the Maharashtra political imbroglio deepens, a legal conundrum has surfaced over the possible options that the group of rebel Shiv Sena legislators, led by Eknath Shinde, could exercise amid an endeavour by the Uddhav Thackeray-led Maharashtra Vikas Aghadi (MVA) to disqualify them.

Shiv Sena supporters protest against MLA Yogesh Kadam who joined the rebel camp of Eknath Shinde as they express their support to CM Uddhav Thackeray amid political crisis, at Dapoli, in Maharashtra. PREMIUM
Shiv Sena supporters protest against MLA Yogesh Kadam who joined the rebel camp of Eknath Shinde as they express their support to CM Uddhav Thackeray amid political crisis, at Dapoli, in Maharashtra.

On Monday, the dissidents (though they don’t see themselves as that) received a breather when the Supreme Court restrained deputy speaker Narhari Zariwal from disqualifying 16 rebel MLAs until it decides whether Zariwal has the authority to entertain the disqualification petitions when a motion seeking his own removal is pending. Shinde and others sought Zariwal’s removal on June 21. Four days later, Zariwal issued disqualification notices to the dissident MLAs, including Shinde.

The court reprieve, however, does not go any further in resolving the political crisis in the state. With both factions staking claim over the Shiv Sena, legal battles are imminent, and with the Bharatiya Janata Party, which is backing the dissidents, and independent MLAs (also backing them), seeking a floor test, it is clear that the bugle has been sounded. This invites adjudication which will be guided by certain judicial principles evolved in the past.

Splits, mergers, and other dilemmas

“Aaya ram gaya ram” became a popular phrase in the Indian political system after an MLA from Haryana, Gaya Lal, changed his party three times on the same day in 1967. In the years that followed, defections by legislators resulted in the fall of several state governments, necessitating President’s Rule. The growing trend led Parliament to contemplate a law to curb the practice.

Finally, in 1985, the Constitution was amended to institutionalise the concept of disqualification on the ground of defection and the Tenth Schedule was added, which is commonly referred to as the anti-defection law. The law applied to both the Lok Sabha and state assemblies.

It propounded that members, elected as candidates of one particular political party, would be disqualified if they voluntarily relinquished their membership of the political party, or voted, or abstained from voting in the House, contrary to any direction (whip) of the party.

The 1985 amendment recognised splits and mergers as exceptions to the rule of defection. A split took place when one-third of the members of a political party formed a group of their own, while a merger occurred when two-thirds of the members supported the move for a merger with another political party.

However, the 91st amendment of the Constitution in 2003 did away with the concept of a split in a political party, and deleted the impugned provision from the Tenth Schedule. The statement of objects and reasons of the amendment cited recommendations of the Committee on Electoral Reforms (the Dinesh Goswami Committee) of 1990, the Law Commission of India in 1999, and the National Commission to Review the Working of the Constitution in 2002 for omission of paragraph 3 of the Tenth Schedule, which accorded protection from disqualification in case of splits.

The 2003 amendment resulted in mergers becoming the only exception against the rule of defection. Paragraph 4(2) of the Tenth Schedule states that only when two-thirds of the members agree to “merge” with a party would they be exempt from disqualification. A plain reading of this provision envisages twin conditions — the original party should merge with another party, and have the support of two-thirds of its members.

However, some of the latest rulings by high courts have banked on the numbers alone to hold that if two-thirds of MLAs merge with another political party, they will be immune from disqualification.

In July 2019, 10 of 15 Congress MLAs in Goa joined the BJP, taking the ruling party’s tally to 27 in the 40 member House. Since they formed two-thirds of the strength of the legislative party unit, the Goa bench of the Bombay high court held that they would not attract the anti-defection law. The high court ruling as well as the Speaker’s decision not to disqualify them is under challenge before the Supreme Court.

Similarly, in Telangana, in 2016, 12 out of 158 Congress MLAs joined the ruling TRS, and the Speaker approved the merger of the breakaway faction on the ground that they constituted at least two-third of the legislative strength. These decisions will come handy for the Shinde camp.

Can the Shinde faction claim to be the Shiv Sena?

Yes, it can. The dispute, will, however, be settled before the Election Commission (EC) where Shinde and his supporters must stake claim over the party and its symbol under the Election Symbols (Reservation and Allotment) Order, 1968, and satisfy EC of enjoying the majority.

Paragraph 15 of the Symbols Order empowers EC to recognise a splinter group as the original political party after hearing both sides. It states that EC “shall take into account all the available facts and circumstances of the case and hearing such representatives of the sections or groups and other persons as desire to be heard” before declaring one of the factions as the recognised political party.

In Sadiq Ali Vs The Hon’ble Election Commission & Another, 1972, the Supreme Court affirmed EC’s views on majority as a key factor in granting recognition to a political party. It held that the test of majority and numerical strength is a very valuable and relevant test. “Whatever might be the position in another system of government or organisation, numbers have a relevance and importance in a democratic system of government or political set up and it is neither possible nor permissible to lose sight of them. Indeed, it is the view of the majority which in the final analysis proves decisive in a democratic set up,” said the top court.

EC, while deciding a dispute relating to Samajwadi Party’s leadership in 2017, held: “In any democratic institution, which the political parties are, the will of the majority should prevail in the internal functioning of the party and if the majority will be suppressed or not allowed to have a proper expression, it will amount to tyranny of the minority.”

The Delhi high court, while deciding the “Two Leaves” symbol dispute in favour of the AIADMK faction, approved the majority test being consistently applied by EC under paragraph 15 of the Symbols Order. The high court noted that EC could take into account the support each faction has within the party’s organisational and legislative wings, which comprise party’s office-bearers and lawmakers. At the same time, the high court clarified that the decision as to the test to be applied must be left to EC’s discretion.

If the Shinde faction succeeds in convincing EC that it is the Shiv Sena, not only will Shinde and other dissidents avoid disqualification under the anti-defection law, but also sound the death knell for the MVA government. Even securing an interim order of getting the party symbol frozen by EC will come to the aid of the Shinde camp, for it will impede the disqualification proceedings against the dissidents until EC’s final order.

Floor test and roles of governor, speaker

The post of Speaker in the Maharashtra assembly has been vacant since February last year. Article 180 authorises the deputy speaker to perform the functions of the Speaker in case of a vacancy.

On Monday, the Supreme Court, acting on the petitions filed by Shinde and 15 other MLAs, shielded them from disqualification until the competence of deputy speaker Zirwal in deciding the complaints under the anti-defection law can be settled.

Shinde’s legal team referred to the 2016 Constitution bench judgment in the Arunachal Pradesh disqualification case, which laid down: “It would be constitutionally impermissible for a Speaker to adjudicate upon disqualification petition under the Tenth Schedule, while a notice of resolution for his own removal from the Office of the Speaker, is pending.”

Even as the Thackeray faction raised the point that no floor test should take place in the meantime because it would disturb the status quo, the top court refrained from passing any order that pre-empted any party from demanding a floor test, or Maharashtra governor Bhagat Singh Koshyari from asking the Thackeray government to prove majority on the floor of the House on his own.

The landmark ruling in the SR Bommai case in 1994 laid down the supremacy of the floor test in determining the support enjoyed by the party in power. Again, in Nebam Rabia vs Deputy Speaker, Arunachal Pradesh (2016), a Constitution bench held that where a governor has reasons to believe that a state government has lost the confidence of the House, it is open to the governor to require the chief minister and the council of ministers to prove their majority in the House by a floor test.

The Shinde faction, independents supporting it, as well as Maharashtra assembly’s single largest party, the BJP, can technically approach Koshyari and seek a floor test . That is what happened late on Tuesday night.

If the governor accepts their demand and orders a floor test, the role of the deputy speaker in conducting the trust vote becomes crucial. After the Supreme Court’s order on Monday, there are clouds over Zirwal’s authority since the court has agreed to examine if he can take important decisions until the issue of his own removal is settled. In such a situation, BJP and the Shinde faction may ask the governor to appoint a pro-tem speaker for conducting the floor test. Article 180(1) of the Constitution provides that when the Speaker or deputy speaker positions are vacant, the duties of the office should be performed by such member of the assembly as “the Governor may appoint for the purpose”. By constitutional convention, the most senior member of the House is usually chosen as pro-tem speaker.

But both the decision to order a floor test and the appointment of a pro-tem speaker are subject to judicial review. So, if Koshyari agrees to a floor test and also appoints pro-tem speaker, the MVA will likely approach the constitutional courts. The issue of disqualification against the rebel MLAs on the ground of disobeying the party whip during the floor test may also be raised by the Thackeray faction.

Looking at the latest precedents, the Supreme Court has consistently followed the golden rule of floor test in 2018 and 2019 when it ordered for trust votes in Karnataka and Maharashtra respectively. In both cases, the court also ordered the appointment of pro-tem speakers for conducting the floor test.

But it is increasingly becoming clear that the constitutional court will have to step in at some stage to end the crisis in Maharashtra, one way or the other.

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