The Shiv Sena General Secretary, Subhash Desai's writ petition in the Supreme Court against the formation of the Eknath Shinde Government in Maharashtra, raises interesting questions to be resolved under the Tenth Schedule to the Constitution.
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AS the Supreme Court is set to reopen after the summer vacation on July 11, the legal implications of political upheaval in Maharashtra are likely to come under its scrutiny with a fresh writ petition challenging the Governor's invitation to the rebel leader, Eknath Shinde, to form the government, following the resignation of Uddhav Thackeray as the Chief Minister.
The writ petition, filed by the General Secretary of the Shiv Sena (led by Udhav Thackeray), Subhash Desai, also challenges the validity of the election of the new Speaker, Rahul Narwekar, and his subsequent recognition of Bharat Gogawale as the Chief Whip of the Shiv Sena, in the place of Sunil Prabhu. Gogawale was nominated as the Chief Whip by the rebel faction, while Prabhu was the nominee of Thackeray.
With the Shinde Government securing the trust vote in the floor test held in the state assembly on July 4, attention has now shifted to the status of the fresh disqualification petitions filed against 39 "delinquent MLAs" (as the rebels are described in Desai's petition) of Shiv Sena, who openly defied the whip issued on July 2 by Prabhu to vote against the confidence motion.
The disqualification of the 39 MLAs has been sought under paragraph 2(1)(b) of the Tenth Schedule to the Constitution.
Previous petitions by Sena in the Supreme Court
Earlier, on June 23, Prabhu had filed disqualification petitions against 16 "delinquent MLAs" of Shiv Sena for anti-party activities. The vacation bench of the Supreme Court extended the time granted by the Deputy Speaker of the assembly to the 16 MLAs to submit their written submissions to the petitions from June 27 to July 12.
“The Shinde faction does not seem to enjoy any support beyond the Maharashtra assembly, and therefore, its claim to be the real Shiv Sena appears dubious, going by the Election Commission's past decisions.
Prabhu subsequently filed another disqualification petition on June 27 against 22 more "delinquent" MLAs, who by their conduct "have voluntarily given up the membership of the Shiv Sena", thus taking the total to 38 MLAs.
Desai's petition argues that the Governor, Bhagat Singh Koshyari did not pay any heed to the fact that Shinde's membership of the assembly was clouded by the imminent disqualification petition pending against him, and swore him as the Chief Minister, in undue and extreme haste on June 30.
Treating Shinde's anti-party activities as amounting to relinquishing membership of the Shiv Sena, Thackeray removed him as a leader of the party on July 1. On the same day, the Shiv Sena Secretary sent a letter to the Election Commission intimating it the removal of Shinde as a leader of the party and change in the organisational set-up of the party as a consequence.
The swift move to approach the Election Commission is due to the fact that it is only the Election Commission which can decide which is the original Shiv Sena – in the event of a split in the organisational and legislative wings of the party. In the past, the Election Commission has tended to recognise the faction which enjoys overwhelming majority support, both among the legislative and organisational wings of the party, in case of a split.
The Shinde faction does not seem to enjoy any support beyond the Maharashtra assembly, and therefore, its claim to be the real Shiv Sena appears dubious, going by the Election Commission's past decisions.
Fresh disqualification petitions
On July 1, Prabhu filed an application in the writ petition filed by him in the Supreme Court seeking an interim order suspending the delinquent MLAs till the final adjudication of the Tenth Schedule proceedings against them. The Supreme Court directed listing of this application along with the petition on July 11.
Desai's petition mentions the fact that on July 3, during the election of the Speaker, the Deputy Speaker – who conducted the elections – recorded that 39 delinquent MLAs of Shiv Sena Legislature Party (SSLP) led by Shinde had voted against the party whip.
On July 3 itself, fresh disqualification proceedings were initiated against the delinquent MLAs as per paragraph 2(1)(b) of the Tenth Schedule.
Interestingly, on July 3, certain MLAs of Shiv Sena (Thackeray faction) submitted a notice to the Principal Secretary, Maharashtra assembly to move a resolution for removal of Narwekar from the office of the Speaker under Article 179(c) of the Constitution read with Rule 11 of the Maharashtra Legislative Assembly Rules.
On July 4, Prabhu challenged the Speaker's recognition, granted on July 3, to the whip issued by the rebel MLAs led by Shinde recognising Gogawale as the Chief Whip and Shinde as the leader of the SSLP. The Supreme Court directed the listing of this writ petition with other connected matters on July 11.
Crux of Desai's petition
In his petition, Desai has argued that even if it is assumed that the delinquent MLAs formed 2/3rd strength of the Legislature party, paragraph 4 of the Tenth Schedule – dealing with exception to mergers – is not at all attracted.
"Recognition of Shiv Sena and its leadership by Uddhav Thackeray has been endorsed by the Election Commission and there was no dispute whatsoever or challenge before the appropriate authority as on June 30", Desai's petition avers.
The Governor, in his ipsi dixit, guided by his political masters, acted malafide and in the teeth of the provisions of the Constitution, granted de-facto recognition to the 39 rebel MLAs by inviting Respondent No.4 (Shinde) to be the Chief Minister, Desai's petition alleges.
“The discretion vested by the Constitution in the Governor for the purpose of Government formation or inviting a person as Chief Minister is not an untrammelled discretion, the petition submits.
The discretion vested by the Constitution in the Governor for the purpose of Government formation or inviting a person as Chief Minister is not an untrammelled discretion, the petition submits. The Governor's discretion in this regard has to be exercised based on relevant material, it claims.
"The relevant material cannot take into account illegally cobbled up numbers which are not sanctioned by the Constitution and which derails the very system of party democracy which forms the bedrock of our Constitutional democracy and is protected by the Tenth schedule", the petition further contends.
Desai's petition further submits that the actions of the Governor impugned herein are in the teeth of Article 164(1-B). The passing of a formal order of disqualification does not carry the date of disqualification to the passing of the order of disqualification. "Respondent No.4 (Shinde) was already under a disqualification on June 30. This relevant factor could not have been ignored or brushed aside by the Governor when he took a decision to invite Respondent No.4 to form the Government", the petition argues.
Desai's petition claims that Shiv Sena had issued a whip for the election of the Speaker held on July 3. By defying the whip issued by the Shiv Sena, on the strength of the 39 MLAs, against whom already disqualification petitions are pending, an illegal election for Speaker of the Maharashtra legislative assembly was held on July 3 and the official candidate of the Shiv Sena was defeated, it has submitted.
"The Speaker was elected with an electorate comprising 39 MLAs of the Shiv Sena against whom disqualification petitions are pending consideration for a violation of Paragraph 2(1)(a) of the Tenth Schedule. Such members are also in direct breach of the whip issued by the Shiv Sena and thereby attracting Paragraph 2 (1)(b) of the Tenth Schedule", the petition has alleged.
“The election of the Speaker based on an illegally obtained majority deserves to be set aside, Desai's petition has prayed.
The election of the Speaker based on an illegally obtained majority deserves to be set aside, Desai's petition has prayed.
As the 39 MLAs, against whom disqualification proceedings are pending, have participated in the confidence motion on July 4, their very membership being in jeopardy, in view of the admitted acts of breach of paragraphs 2(1)(a) and 2(1)(b) of the Tenth Schedule, the Confidence Motion could not have been conducted, Desai's petition contends.
Desai's petition claims that the Shiv Sena, headed by Uddhav Thackeray, has unequivocally directed that Ajay Chaudhary will be the leader of the SSLP, and Sunil Prabhu will be the Whip of the Shiv Sena.
Therefore, it prays that the Supreme Court should, in exercise, of powers under Article 142, withdraw to itself the proceedings of the disqualification petitions, especially in view of the confusion/ambiguity created illegally by the Speaker by recognising a rebel MLA (Shinde) who has voluntarily given up his membership of the Shiv Sena as the leader of the House and also recognising another rebel MLA (Gogawale) as the Whip of the Shiv Sena – both in contravention of the clear intent of the Shiv Sena "undisputably" led by Uddhav Thackeray.
As the Shinde faction has also filed disqualification petitions against the Thackeray faction for violating its whip during the voting on the confidence motion on July 4, the Speaker's decision on the rival petitions will have a bearing on the Supreme Court's hearing of the matter.