Speed of time: Constitutional questions surrounding the Maharashtra political crisis

As the Supreme Court once again refused  on Monday to intervene, following Maharashtra assembly Speaker, Rahul Narwekar's move to recognise the Chief  Whip, nominated by the rebel Shiv Sena group led by the Chief Minister, Eknath Shinde, its  role as an impartial arbiter in disputes under the Anti-Defection Act is under critical scrutiny.

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"SOME men change their party for the sake of their principles; others their principles for the sake of their party", said former Prime Minister of the United Kingdom Winston Churchill. But given how frequently politicians in India, across party lines, have changed their allegiance and toppled an elected government, it is worth asking if the current anti-defection law, contained in the Tenth Schedule (inserted in 1985) of the Constitution is indeed effective. Simply put, why are we allowing for such political horse-trading in the first place?

To put things in context, between March 1967 and August 1970, there were 1,240 defections in the states. This is what necessitated the need for an anti-defection law. But even in recent times, especially since 2014, the numbers of defectors are telling. As per a report of the non-governmental organization Association for Democratic Reforms, between 2016 and 2020, 443 Members of Legislative Assemblies ('MLAs') and of Parliament ('MPs') have switched parties, including 12 Lok Sabha MPs, with 45 per cent of them joining the Bharatiya Janta Party ('BJP') and 42 per cent leaving the Indian National Congress.

Be that as it may, the current anti-defection law stands as what it is. The exciting part in the unfolding of the Maharashtra crisis, is the constitutional questions that it gives rise to, some of which are yet to be answered by the Supreme Court for the first time. Let's try and unpack some of them here.

Also read: Legislative Coups And The Tenth Schedule

Time as a factor

The first question is over the relevance of 'time' in at least two aspects: a) Procedural – the listing and hearing of the rival side petitions in the Supreme Court at breakneck speed and beyond court timings, and b) Substantial – on what basis does the Supreme Court decide that while Eknath Shinde and 15 other rebel Shiv Sena MLAs get time till July 12 to respond to the Deputy Speaker's disqualification notice served on them under the anti-defection law; the floor test can happen as scheduled, and there is a refusal to pass an interim order to halt the same.

The way the Supreme Court has acted vis-a-vis the timeline of the unfolding of the Maharashtra saga makes for a curious case. The matter first reached the Supreme Court on June 26, when at about 6.30 p.m., Shinde's group filed a petition praying that the disqualification notice served upon them by the Deputy Speaker (since the position of the Speaker was vacant, it fell upon the Deputy Speaker to serve the disqualification notice to rebel MLAs) be stopped until the removal of the Deputy Speaker is decided first. The rebel MLAs were given time till 5.30 p.m. on June 27 by the Deputy Speaker to respond as to why they shouldn't be disqualified under the Tenth Schedule. This petition was filed by the Shinde group on June 26, a Sunday, at about 6.30 p.m. The Supreme Court agreed to hear the matter the very next day.

On June 27, the Supreme Court decided to extend the deadline within which rebel MLAs have to respond to the disqualification notice from June 27 (as given by Deputy Speaker) to July 12.

Paradoxically,  no reasons were mentioned for extending the deadline or the constitutional basis for the same, by the vacation bench of Justices Surya Kant and J.B. Pardiwala in its non-speaking order.

It was argued orally on behalf of the rebel MLAs group that the Deputy Speaker did not have a right to serve the disqualification notice, as there is a no-confidence motion pending against him. On behalf of the Deputy Speaker, it was argued that an email was sent to suggest no-confidence in him, but the same was sent via an unregistered email and therefore, the proper process required to initiate a no-confidence motion against him was not technically triggered. But the courts did not engage with any of these arguments and in an order simpliciter, decided to just give more time to the rebel MLAs to respond to the disqualification notice.

Also read: Maharashtra political crisis: 'There is no pending motion for removal of Deputy Speaker; therefore, he is not disabled to decide the fate of rebel MLAs', says P.D.T. Achary

So, in these circumstances, when the Supreme Court does take up a matter, at such speed, and then passes an interim order, extending the timeline given to the rebel MLAs to respond to the disqualification notice, without engaging with these questions in its order, the question surely arises – by extending the time, isn't the Supreme Court already playing a role in deciding the fate of the Maharashtra Assembly, although not directly, by simply giving more time to one side, thereby increasing the room for more backdoor negotiations?

On the other hand, on June 27, while the Supreme Court agreed to hear on an urgent listing basis the petition of the Shiv Sena Chief Whip Sunil Prabhu challenging the Governor's direction to conduct a floor test, it refused to halt the same.

This allowance of time to the rebel group to reply to the disqualification notices by July 12, while refusing to stay the floor test, as demanded by the Shiv Sena Chief Whip, surely had a role to play in the way the Maharashtra political crisis unfolded, with Shiv Sena President Uddhav Thackeray resigning from the position of Chief Minister ('CM'), instead of taking the floor test. If the Supreme Court had extended the time for the floor test, it would perhaps have had a considerable ramification on the turn of events.

Now, whether to grant time or not, is clearly a prerogative of the Supreme Court, but the argument here is that given the fundamental role of 'time' – either grant or refusal of the same – on the crisis itself, the Supreme Court's decision indeed has a weight in the Maharashtra crisis, and therefore, ideally the bench of Justices Kant and Pardiwala should have gone into the reasoning for its decision, or should have at least engaged with these arguments and given a logical basis for extending or refusing time in its order.

In the latest turn of events, a floor test took place in the Maharashtra assembly on Monday with the Eknath Shinde faction winning with the support of the BJP by a 164-99 margin.  Despite the senior counsel for Udhav Thackeray, Dr.Abhishek Manu Singhvi,  mentioning the urgency of the matter,  the Vacation Bench comprising justices Indira Banerjee and J.K.Maheshwari,  refused to intervene.  Thackeray had alleged that the action of the new Speaker of the assembly in recognising Bharat Gogawale as the Chief Whip of the Shiv Sena, in the place of Sunil Prabhu, appointed earlier by him as leader of the party, was violative of the Supreme Court's directive, which was in favour of the status quo.

Who decides on anti-defection: The Supreme Court or the legislative house, and which one is the original Shiv Sena?

The Tenth Schedule is clear in its language on this point, that it is the Speaker of the House who decides:

"6. Decision on questions as to disqualification on ground of defection — (1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final…" (Emphasis supplied)

However, in Kihoto Hollohan versus Zachillhu and Ors. (1992), a Constitution bench of the Supreme Court held that while discharging their duty under Paragraph 6 of the Tenth Schedule, the Speaker/Chairman act as a Tribunal and while their decision is final, it would be subject to judicial review on the following grounds: mala fides, perversity, violation of constitutional mandate and order passed in violation of natural justice.

These grounds are broad enough to give enough discretionary room to courts to intervene if need be. As they say, the devil lies in the detail – so any intervention from the Court is not likely to come in the form of a direct decision of deciding on anti-defection itself as a first port of call, but a series of orders on the surrounding issues could well alter the ultimate decision substantially.

In the Maharashtra crisis, the Supreme Court may have a larger role to play, as the Tenth Schedule does not provide for a situation where a substantial number of elected members split from a party but do not merge with another, thus giving rise to the question – who's the original Shiv Sena?

Also read: The Eknath Shinde faction cannot claim immunity from Tenth Schedule by posing itself as the real Shiv Sena: P.D.T. Achary

Paragraph 2 of the Tenth Schedule provides for disqualification on ground of defection, thus defining what constitutes 'defection' in the first place. It reads –

"2. Disqualification on ground of defection.—(1) Subject to the provisions of 3 [paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House— 

(a) if he has voluntarily given up his membership of such political party; or

(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention." (Emphasis supplied)

The essential factor is the 'voluntary' giving up of membership, either through an act of resignation or through any other act, clearly going against the mandate of the original party, on the basis of which a candidate/s got elected in the first place. In Ravi S. Naik versus Union of India (1994), the Supreme Court held that in paragraph 2(1)(a), the inference of resignation can be inferred from the conduct of a member and does not need formal resignation.

From the conduct of the rebel MLAs, it is more or less clear that they have voluntarily given up their membership of the Shiv Sena. But can they qualify for the exemption in the Tenth Schedule provided under Paragraph 4, which reads –

"4. Disqualification on ground of defection not to apply in case of merger.—

(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—

(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or

(b) have not accepted the merger and opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph. 

(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger. (Emphasis supplied)

So, the only ground of exemption for rebel MLAs is if their party merges with another. Since the rebel group led by Shinde haven't disclosed any plans to merge with BJP yet, this para cannot technically apply. However, the bigger constitutional question that arises is – given that more than two thirds of Shiv Sena's elected members have become the 'rebel group', what happens in the wake of such a substantial split? Only merger is allowed for as an exemption from disqualification in such a scenario, in the Tenth Schedule, but there is no allowance for a split – thus leaving the Tenth Schedule open to attack on the ground of incompleteness.

Also read: A case for removal of Paragraph 4 of the Tenth Schedule to the Constitution

Legal vacuum

In Rajendra Singh Rana & Ors. versus Swami Prasad Maurya & Ors. (2007), a Constitution bench of the Supreme Court held that rebel MLAs will have to show that there is a split in the original political party, separate from the split in the legislature party. But this judgment was decided as per Paragraph 3 of the Tenth Schedule which dealt with splits; this provision was subsequently omitted by the Constitutional (Ninety first Amendment) Act, 2003. So currently, there is a legal vacuum as regards a Supreme Court pronouncement on merger as well as a larger constitutional vacuum on what happens if there is a split, with neither any constitutional provision nor judicial pronouncement on the same.

Whether the Shinde group can in fact show a larger split in the political party too, beyond the split in the legislature party, of the Shiv Sena – only time will tell. But beyond the facts of who commands what numbers currently between the Thackeray faction and the Shinde faction, a few questions still arise, opening up a Pandora's box and making the Maharashtra crisis one of the most interesting constitutional puzzles in recent times.

The first pertains to the difference between the composition of a political party (that comprises the entire rank and file of the party) and the legislature party (which comprises elected members from a political party in the House) for the purpose of the application of the Tenth Schedule. As per para 4(2) of the schedule, the merger of a political party is said to have taken place when two-thirds of the legislature party agrees to such merger.

Also read: Stop the Aaya Rams, Gaya Rams right in their tracks

In the current case, since there is no merger at the moment, but only a split, does the split of two-thirds members from the legislature party, now entitle them to be the main 'political party', that is, Shiv Sena? Also, who will decide this: the Election Commission (which can decide the fate of political parties – who gets to keep the name and/or the symbol), or the Supreme Court (given that this situation has not been covered explicitly by the Supreme Court yet)? Or perhaps, it will just play out politically, with the Supreme Court seemingly taking a hands-off approach while giving time to both the groups to play it out politically amongst themselves, while still, in the process of doing so, having an indirect signalling effect on both the sides and influencing the final outcome, using 'time' as a factor.

Secondly, can there be a situation where the current CM Shinde loses the membership of a political party itself on grounds of defection and lack of political merger with BJP, but continues to be the CM? In other words, a CM with legislative backing but no political party? If he resigns and gets re-elected, will there be a bar on him after disqualification to be re-elected again – as not disqualifying him will go against the very intent of anti-defection law.

Again, time will have a role to play – when he is disqualified (if at all) and with what repercussions. For a Member who is disqualified under the Tenth Schedule, Articles 75(1B), 164(1B) and 361B of the Constitution provide for a bar from being appointed as Minister of from holding any remunerative post from the date of disqualification till the date on which the term of their office would expire or if they are re-elected to the legislature, whichever is earlier.

The recent election of BJP legislator Rahul Narwekar as the Maharashtra Assembly Speaker might politically signal what is to come, but constitutionally speaking, since the role of a Speaker is supposed to be 'politically neutral and unbiased', these constitutional questions will still need addressing. 

Finally, there is no strict deadline for the Speaker to decide on the disqualification applications. The Supreme Court has held an outer limit of three months for the Speaker to decide on disqualification petitions from the date of the filing for disqualification notice. Courts can ideally interfere, once the Speaker has decided this application. So, with the new Speaker now having been sworn in for Maharashtra Assembly, combined with, and thanks in part to the extended time given by the Supreme Court to the rebel MLAs, the theatre of the Maharashtra political crisis will see some more interesting twists and turns.

Also read: Anti-Defection Law has Failed and Should be Scrapped

What is clear, however, in all of this, is that when constitutional scenarios of this nature do play out, we, the citizens, need to deeply contemplate two questions: is it acceptable to topple a democratically-elected government by such horse trading, and is the role of the Supreme Court honourable enough as an impartial arbiter in this saga? Sometimes, the Supreme Court speaks not through words, but through silence, or simply by playing the magic hand of 'time' – giving or refusing to give the same.