Daily Editorial Analysis

A Speaker flawed move to determine the real faction (GS Paper 2, Polity and Constitution)

Context:

• The Speaker of the Maharashtra Assembly, Rahul Narwekar, was required to decide whether the breakaway group of Shiv Sena Members of the Legislative Assembly (MLA) under the leadership of Eknath Shinde voluntarily gave up the membership of their party and later voted against the whip issued by that party, the Shiv Sena, and thereby incurred disqualification.

Disqualification under the Tenth Schedule:

• Voluntarily giving up the membership of their original party or voting against the whip of the party are treated as defection and the Members of the legislature who do either of these things are liable to be disqualified under the anti-defection law contained in the Tenth Schedule of the Constitution.
• It was immaterial that Eknath Shinde later became the Chief Minister or that a majority of the Shiv Sena’s legislators joined the Shinde group or that the original Shiv Sena party became a minority in the Assembly.
• These facts are irrelevant for the determination of the question of disqualification under the Tenth Schedule.

Petition filed before the Speaker:

• The petition was filed by the original Shiv Sena party which sought the disqualification of the Shinde group. When such a petition is filed before the Speaker, he gets the jurisdiction to decide whether the respondent legislators have defected.
• The facts placed before the Speaker were that the rebel MLAs under the leadership of Eknath Shinde had secret meetings in a faraway State and did not attend the crucial legislative party meetings called by the president of the original Shiv Sena party, Uddhav Thackeray, without giving any reason.
• This rebellion by the group of MLAs loyal to Eknath Shinde culminated in the formation of an alliance with the party in Opposition and Mr. Shinde being sworn in as Chief Minister.
• So, Speaker Narwekar was called upon to decide whether this action of Eknath Shinde and his colleagues could be treated as voluntarily giving up the membership of the party, the Shiv Sena, and, hence, could be disqualified.
• Speaker Narwekar’s nearly 1,200 page long judgment valiantly tried to avoid this consequence and save the Shinde group from disqualification. It is a deeply flawed judgment.

What the Supreme Court’s ruling says about it?

• Whether a member of the legislature has voluntarily given up the membership of his party is to be determined on the basis of the facts and circumstances of each case.
• The Supreme Court of India has on several occasions explained the scope of this term used in paragraph 2(1)(a) of the Tenth Schedule.
• In Rajendra Singh Rana vs Swami Prasad Maurya (2007), the Court had said that when a member or a group of members of the ruling party joins hands with the Opposition party and meet the Governor along with the Members of the Opposition and try to form an alternative government, they can be said to have voluntarily given up the membership of their original party.
• So, when we look at the conduct of the Shinde group of MLAs in light of the Supreme Court’s observation in the case above, it becomes clear that they have voluntarily given up the membership of their party. The consequence of this is disqualification.
• In Subhash Desai vs Principal Secretary, Governor of Maharashtra & Ors. (2023), the Supreme Court observes that a split has taken place in the Shiv Sena party, and thus two factions have come into existence.
• But in the context of the Tenth Schedule, this observation has no relevance because the Tenth Schedule does not recognise a split now. So, a split in a party no longer exempts the legislators from disqualification.

Originally, the Tenth Schedule provided two grounds for exemption from disqualification.

1. First, in the case of a split within a political party, where one-third of the legislators formed a faction and broke away.
2. Second, if a legislator's party merged with another party, and not less than two-thirds of the members agreed to the merger and walkout of the original party.

• But the split provision in paragraph 3 of the Tenth Schedule was omitted through the 91st Constitution Amendment in 2003 ostensibly because of the frequent abuse of this provision by ingenious legislators.
• Now only the merger provision in paragraph 4 remains which can protect defectors provided the conditions stipulated in paragraph 4 are met, the main condition being the merger of the defectors party with another party. It is an extremely difficult condition to fulfil, yet this condition is also being circumvented now in a number of cases.

Speaker not the valid authority to decide:

• The question as to which faction is the real party cannot be decided by the Speaker as the Tenth Schedule does not require him to decide this. This question is decided only by the Election Commission of India under paragraph 15 of the symbols order.
• The only question that is required to be decided by the Speaker in some cases as a preliminary issue is which party the legislators defected from, or in other words which is their original political party.
• The explanation to paragraph 2(1) clearly says that 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 deeming provision clarifies this question beyond any doubt. It is not at all the function of the Speaker to determine which faction is the real party that is not germane to the anti-defection law.

Judiciary’s clear enunciation of the law:

• The Speaker’s declaration that the appointments of the Chief Whip and the legislature party leader by the Shinde group is valid runs counter to the Supreme Court’s finding that the decision to recognise Mr. Shinde as leader and Bharat Gogawaleas Chief Whip is illegal (paragraph 119 of the Subhash Desai judgment).
• The Court has also held that the decision of the Deputy Speaker recognising Ajay Choudhary as the Chief Whip is valid.
• It has also made it absolutely clear that when the conduct prohibited under the Tenth Schedule is committed, there is only one political party, namely the original Shiv Sena led by Uddhav Thackeray (paragraph 157).
• In light of this clear enunciation of law by the Supreme Court, how could the Speaker come to a finding that the Shinde group is the real party? This decision of the Speaker is clearly without jurisdiction.

Conclusion & Way Forward:

• The Subhash Desai judgment makes it clear that the Shiv Sena led by Uddhav Thackeray is the original political party which alone could issue a valid whip to all the members of the Shiv Sena.
• It is that party whose membership the Shinde group voluntarily gave up and thus incurred disqualification under paragraph 2(1) of the Tenth Schedule.
• As regards the question of which faction is the real Shiv Sena, it can be decided only by the Election Commission of India. The Speaker has no jurisdiction to decide it. It may be noted that Parliament while enacting the Tenth Schedule did not consider paragraph 15 of the Symbols order as a relevant factor.