As the turmoil in the Maharashtra Legislative Assembly continues, the Supreme Court has delivered its judgment in the matter of Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors which will be followed by more decisions, from the Supreme Court and the Maharashtra assembly speaker, to determine the status of several Shiv Sena members.
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THERE does not seem to be an end in sight to the political turmoil in Maharashtra Legislative Assembly, despite the popular belief that the Supreme Court judgment will bring a closure to the issue. From an academic point of view, better 'endgames' may be available, possibly with another Supreme Court judgment to follow.
After the Supreme Court's judgment in the case of Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors, the ball is in the speaker's court to decide upon the disqualification of the 16 members of the legislative assembly (MLAs). The latter rebelled against the Uddhav Thackeray-led Shiv Sena in June 2022 and joined hands with the Bharatiya Janata Party (BJP) to form the government.
Also read: Maharashtra political crisis explained
The fundamental essence of the Supreme Court's ruling is focussed on the principle that the speaker, being a constitutional office, will act fairly and objectively in determining the disqualification.
The principles laid down by the court in its judgment, if followed by the speaker while deciding upon the disqualification, will lead to the disqualification of the rebel MLAs. However, there may be other possible alternatives left for the speaker in this scenario.
“The appointment of the chief whip can only be done by the political party, namely, the undivided Shiv Sena prior to the split. It cannot be done by the legislature party led by Shinde, who garnered the support of 39 Shiv Sena MLAs.
The Supreme Court has categorically held the speaker's decision of recognising Gogawale as the 'chief whip' of the Shiv Sena illegal on the ground that it was solely based on the resolution of Eknath Shinde-led faction of the Shiv Sena legislature party (SSLP) without conducting a thorough inquiry to ascertain whether it was truly reflective of the political party's stance.
"In a contentious situation such as this, the speaker should have conducted an independent inquiry based on the rules and regulations of the political party to identify the whip authorised by the Shiv Sena political party. The speaker must only recognise the whip appointed by the political party."
The Supreme Court said that the speaker was acquainted with the emergence of two distinct factions within the legislature party on July 3, 2022. Even after this, the speaker, acknowledging the resolution passed by Shinde's faction of SSLP, recognised Gogawale and not Prabhu as the chief whip of the Shiv Sena.
The speaker did not attempt to find out which of them, Gogawale or Prabhu, represented the will of the political party. In doing so, the speaker acted contrary to the provisions of the Maharashtra Legislative Assembly Rules, 1986, and the Tenth Schedule of the Constitution of India.
In contrast, the court held that the deputy speaker's decision of recognising Ajay Choudhari as the whip was valid. The court said that on June 21, 2022 there was an absence of sufficient material on record for the deputy speaker to doubt that the SSLP's resolution dated June 21, 2022 (which seeks to appoint Ajay Choudhari as the leader of the SSLP) was de hors the political party, or that two groups within the legislature party had emerged.
Thackeray signed the resolution as the party president. This shows that Thackeray spoke for the party when he made this decision, and there was no sign of any division within the party.
The appointment of the chief whip can only be done by the political party, namely, the undivided Shiv Sena prior to the split. It cannot be done by the legislature party led by Shinde, who garnered the support of 39 Shiv Sena MLAs.
In essence, it implies that the speaker made an incorrect identification of Shinde as the leader of the SSLP. Additionally, the speaker's decision, which recognised Gogawale as the chief whip of the Shiv Sena, is illegal. As a result, the whip recognised by Uddhav Thackeray (Sunil Prabhu) holds legal validity. Now, the speaker will have to decide the issue based on the original whip issued by Uddhav Thackeray.
The court rejected the respondent's submission that the legislature party and political party are intertwined concepts and the distinction between the two is artificial, among other legal grounds, a summary of which is presented below.
The respondent contended that the political party and legislature party are intertwined concepts by referring to Paragraph 6A of the Symbols Order and Paragraph 4(2) of the Tenth Schedule. However, the court rejected this argument and said the "Tenth Schedule recognises the independent existence of the legislature party to [a] limited extent".
The Tenth Schedule allows a legislature party to defend legislators against defection and report to the speaker if voting or abstention has been condoned by the political party. The concept of legislature party is not recognised by the Symbols Order.
“Combining the three principles given by the Supreme Court, the only possible outcome is disqualification of the 16 rebel MLAs. However, the Speaker Rahul Narwekar has reportedly said, "I don't agree that disqualification of Shinde and 15 [other] MLAs is now inevitable… Won't allow any miscarriage of justice, the court has never said that a particular faction is the real Shiv Sena".
The court made a literal interpretation of the provisions of the Tenth Schedule, the Maharashtra Legislative Assembly Rules, 1986, and the Maharashtra Legislature Members (Removal of Disqualification) Act, 1956, and held that a direction to vote or abstain from voting emanates from the political party and not the legislature party.
Paragraph 2(1)(b) of the Tenth Schedule stipulates that the directive to vote or abstain from doing so must come from the 'political party', or by "any person or authority authorised by it". The court said the word 'it' refers to the political party.
"The provisions of the Tenth Schedule stipulate in unequivocal terms that the direction must come from the political party and not the legislature party. The Tenth Schedule would become unworkable if the term 'political party' is read as the 'legislature party'."
The court also discussed the consequences of allowing the legislature party to appoint a whip. Legislators could potentially use their political party as a means to secure their election, leaning on the party's promises and policies. They could also appeal to voters based on their party affiliation. However, once elected, they could distance themselves entirely from the party and act as a group of MLAs who no longer owe any allegiance to their former political party.
The court said: "To hold that it is the legislature party which appoints the whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognise that the power to appoint a whip vests with the political party."
In paragraph 155 of its judgment, the court held that the Election Commission of India (ECI)'s decision of recognising the Shinde faction as the real Shiv Sena will apply only prospectively; meaning that the speaker cannot take the ECI's decision in consideration while adjudicating upon the disqualification of the 16 MLAs of the Shinde faction. This means that the speaker cannot decide on the disqualification relying upon the ECI's decision.
"The decision of the ECI has [a] prospective effect. A declaration that one of the rival groups is that political party takes effect prospectively from the date of the decision. In the event that members of the faction which has been awarded the symbol are disqualified from the House by the speaker, the members of the group which continues to be in the House will have to follow the procedure prescribed in the Symbols Order and in any other relevant law(s) for the allotment of a fresh symbol to their group."
Combining these three principles given by the Supreme Court, the only possible outcome is disqualification of the 16 rebel MLAs. However, the Speaker Rahul Narwekar has reportedly said, "I don't agree that disqualification of Shinde and 15 [other] MLAs is now inevitable… Won't allow any miscarriage of justice, the court has never said that a particular faction is the real Shiv Sena".
Nevertheless, it is a judgment where the winner loses and the loser wins the case. The writing is on the wall if the principles given in the judgment are adhered to, with only one possible outcome which is the disqualification of the rebel MLAs.
Building on the statement of Rahul Narwekar, it will be incorrect to presume that disqualification is the only possible result in this scenario. There are several easter eggs within the judgment which gives a free hand to the speaker to go against the presumed belief.
Firstly, the ECI order recognising Eknath Shinde faction as the real Shiv Sena, though not a legal mandate for the speaker to accord with, is still a relevant consideration for the speaker for making its decision.
The disqualification under the Tenth Schedule is mostly governed by political will rather than legal intricacies. On the one hand, the Supreme Court has held that the appointment of Gogawale as the party whip is contrary to law, as he was not appointed by the political party.
However, in this scenario, this does not necessarily mean that the exercise of power by Rahul Narwekar (under the Tenth Schedule) shall be in a manner as if the power of whip has shifted status quo ante to Sunil Prabhu.
The novel factual matrix is going to play a major role in the decision-making of the speaker. Especially because, as emphasised by Justice Chandrachud in his opinion, the disqualification under the Tenth Schedule does not ensue from the date of the committal of the actions proscribed in the Tenth Schedule. In this scenario, it ensues from the date when the speaker makes the decision.
This means that the committal of the action by default has not led to the disqualification, rather the speaker has to act as the 'tribunal' to decide this issue. Additionally, it can easily be claimed that there were genuine doubts as to who will be the authority for appointing the chief whip between the political party and the legislature party.
Now that the doubt has been cleared that it is the political party, the next question which has also been raised by Narwekar is that the court has defined the political party, yet it has not delineated as to which faction is the real political party between the old Uddhav Thackeray-led Shiv Sena and the new Eknath Shinde-led Shiv Sena.
“Lack of clarity as to which faction is the real political party will raise a benefit of doubt in favour of the Eknath Shinde faction. However, the very fact that Gogawale's appointment as chief whip is regarded contrary to law, may suggest that it is the Uddhav Thackeray-led faction which is the real Shiv Sena.
Thus, there is a scope that the balance may tilt in favor of the Shinde faction, as lack of clarity as to which faction is the real political party will raise a benefit of doubt in favour of the Eknath Shinde faction. As the relevant paragraph 206 (d) reads:
"The political party and not the legislature party appoints the whip and the leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party. The decision of the speaker, as communicated by the deputy secretary to the Maharashtra legislative assembly dated July 3, 2022 is contrary to law. The speaker shall recognise the whip and the leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgment."
This paragraph clearly leaves it to the speaker to determine as to which faction is the real political party. There may be an implicit reading of this paragraph as well. The very fact that Gogawale's appointment as chief whip is regarded contrary to law, may suggest that it is the Uddhav Thackeray-led faction which is the real Shiv Sena.
Nevertheless— and a word of caution won't be amiss here— as the question has been left open, the speaker will have a final say in the matter of determination of the real Shiv Sena. As this judgment will have a prospective application, the ECI order may play a role as well. It becomes a sufficient basis for the current speaker to absolve the 16 MLAs under the Tenth Schedule.