If 2022 was the year when Eknath S. Shinde laid claim to the Shiv Sena by skirting around the Tenth Schedule of the Constitution, 2023 provided a reprise when Ajit Pawar sought to wrest control of the Nationalist Congress Party. The disqualification petitions pending with the speaker of the Maharashtra assembly are the centrepiece of this game. Today, the Supreme Court will hear pleas for their expeditious disposal.
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THE Supreme Court is set to hear two petitions today, both seeking directions for the Maharashtra legislative assembly speaker to act on the pending disqualifications.
In June 2022, the current chief minister of Maharashtra Eknath S. Shinde and a substantial number of other legislators from the Shiv Sena rebelled against the then Chief Minister Uddhav B. Thackeray in the Maharashtra Vidhan Sabha, eventually leading to the end of the Maha Vikas Aghadi government, comprising the Shiv Sena, the Nationalist Congress Party (NCP) and the Indian National Congress.
Thackeray treated these anti-party activities as ‘voluntarily giving up membership of the political party’ and issued 16 disqualification notices, including against Shinde.
This year, the NCP leader Ajit Pawar joined the Shinde government along with eight other legislators from the NCP. This led the NCP supremo Sharad Pawar to issue disqualification petitions against Pawar and other legislators.
Disqualification by ‘voluntarily’ giving up membership, as provided under paragraph 2(1)(a) of the Tenth Schedule, is a ground for defection that has been interpreted in Ravi S. Nair versus Union of India (1994) to include any conduct which goes against the mandate of the original political party.
What has happened so far?
In Shinde’s case
In Shinde’s case, which ultimately led to the resignation of Thackeray as the chief minister and Shinde’s swearing in as the chief minister of Maharashtra, the Supreme Court held in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors that it cannot restore the status quo ante in Maharashtra because Thackeray resigned and did not face the floor test.
The court did not decide on the disqualification petitions pending against Shinde and the rebel legislators. However, the court added that the petitions must be decided in a reasonable time.
Before the judgment was pronounced, the Election Commission of India (ECI) allowed the Shinde faction to retain the ‘Bow & Arrow’ symbol reserved under the Symbols (Reservation and Allotment) Order, 1968, thereby officially recognising it as ‘Shiv Sena’.
In this regard, the court stated that the ECI’s Order runs independent of the decision of the speaker on disqualification petitions.
A petition filed by the member of legislative assembly (MLA) and the former political whip of the Thackeray faction, Sunil Prabhu, sought directions for the expeditious disposal of the disqualification petition against Shinde and the legislators of his camp by the speaker.
The disqualification petitions are currently with speaker Rahul Narwekar. They were filed last June with the deputy speaker Narhari Zirwal (the seat of the speaker was incumbent at that time), against whom the Shinde faction had moved a no-confidence motion.
It was contended by the Shinde camp that a speaker facing a no-confidence motion cannot decide disqualification petitions.
On September 18, the Supreme Court gave a week’s time to Zirwal to formulate the schedule for the disqualification petition hearing against the Shinde camp.
In Ajit Pawar’s case
Ajit Pawar became a deputy chief minister of Maharashtra this year. The other deputy chief minister is Bharatiya Janata Party’s Devendra Fadnavis.
Earlier, the NCP, led by its patriarch Sharad Pawar, had 53 MLAs in the 288-member Maharashtra assembly.
After Sharad Pawar issued disqualification petitions, Ajit Pawar claimed his faction as the real NCP. A petition in which he has staked a claim to the NCP name and symbol is pending before the ECI.
Ajit Pawar claimed that the supremo Sharad Pawar was removed and replaced by him on June 30 this year.
The ECI is also set to hear the plea this Friday.
What is the law on the reasonable time in which the speaker must decide the disqualification petitions?
In Keisham Meghachandra Singh versus The Hon’ble Speaker Manipur Legislative Assembly & Ors (2020), a three-judge Bench of the Supreme Court observed that the speaker must decide on disqualification petitions within a reasonable time.
The court further clarified: “What is reasonable [time] will depend on the facts of each case, but absent exceptional circumstances for which there is good reason, a period of three months from the date on which the petition is filed is the outer limit within which disqualification petitions filed before the speaker must be decided if the constitutional objective of disqualifying persons who have infarcted the Tenth Schedule is to be adhered to.”
Keisham Meghachandra and Subhash Desai has referred to the Supreme Court’s landmark judgment of Kihoto Hollohan versus Zachillhu & Ors (1992). In Kihoto Hollohan, a Supreme Court five-judge Bench, while declaring that the jurisdiction of the courts cannot be ousted within the scheme of the Tenth Schedule, observed that the court cannot interfere at the interlocutory level with the jurisdiction of the speaker.
This issue had led to a challenge to the constitutionality of Nabam Rebia, & Bamang Felix versus Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016).
A Constitution Bench of five judges in Nabam Rebia held: “We are … of the view that constitutional purpose and constitutional harmony would be maintained and preserved, if a speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the speaker, is under challenge.”
As for Subhash Desai, the issue has been referred to a seven-judge Bench while giving out certain interim measures.
