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Who is the real Nationalist Congress Party? Déjà vu of Maharashtra political crisis

Another monsoon season, another identity crisis for a political party in Maharashtra. After the drama of determining the ‘real’ Shiv Sena last year, which continued this year at the Supreme Court of India, will the Ajit Pawar-led rebellion take down the Nationalist Congress Party down the same muddy road?

MONSOONS are supposed to be the harbingers of new life in a parched, thirsty subcontinent. But, for the second year in a row, the rains have brought along a political storm in Maharashtra.

Eknath S. Shinde of Shiv Sena may have completed one year as the chief minister of Maharashtra on June 30, but the disqualification against him for ‘voluntarily giving up his membership’ remains sub-judice before the Supreme Court. Can we even say with certainty that he is the ‘Eknath Shinde of Shiv Sena’?

Now, with the Nationalist Congress Party (NCP) leader Ajit Pawar joining the Shinde faction Shiv Sena–Bharatiya Janata Party (BJP) government, the situation is sprouting new branches.

Ajit Pawar became a deputy chief minister. Maharashtra has two now, the other being BJP’s Devendra Fadnavis, who must be feeling cramped sitting on half of the deputy chief minister’s seat when just a few years ago he used to occupy the chief minister’s seat wholly and solely.

Eight other NCP members of legislative assembly (MLAs) were sworn in as ministers in the Shinde-faction Shiv Sena–BJP–Ajit Pawar-led NCP breakaway group tripartite government. 

Before Ajit Pawar and the eight others (and the many more claimed) broke ranks with the NCP led by its patriarch Sharad Pawar, the party had 53 MLAs in the 288-member Maharashtra assembly.

The next day, the NCP supremo Sharad Pawar issued disqualification petitions against Ajit Pawar and Sunil Tatkare, removing their names from the register of members of NCP for anti-party activities. Disqualification petitions against the seven other MLAs who have taken oath as ministers in the Shinde cabinet have also been issued.

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.

According to the Tenth Schedule, legislators defecting may not attract the provisions of disqualification in the situation of a merger. While paragraph 3, which provided for a split in the original political party, was deleted by the Constitution (Ninety First Amendment) Act, 2003, a merger is still a defence against disqualification.

According to paragraph 4(2) of the Tenth Schedule, defecting legislators can claim a merger only when at least two-thirds of the membership of the legislature party (elected members to the House) merge with another political party.

Considering this, the Ajit Pawar-led faction needed the support of at least 36 MLAs to claim a merger if they wanted to merge with the BJP or the Shinde-led Shiv Sena. Their only other option was to prove that they are the ‘real’ NCP.

Now, with the Ajit Pawar-led faction claiming that Sharad Pawar has been removed as the president of NCP and has been replaced by Ajit Pawar on June 30, the mandate of issuing disqualification notices has been challenged. This naturally requires the Ajit Pawar-led faction to prove itself as the authentic NCP. 

A recap of the last year’s political crisis

In June 2022, Shinde and a larger number of other MLAs 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 NCP and the Indian National Congress.

The rebel MLAs declared Shinde as the leader of Shiv Sena. However, Thackeray treated anti-party activities as ‘voluntarily giving up membership of the political party’. He issued 16 disqualification notices, including against Shinde

The Leaflet has explained how the political crisis unfolded and how it ultimately led to the resignation of Thackeray after the governor ordered a floor test.

Shinde took oath on June 30, 2022, with the support of BJP, after Thackeray resigned as the chief minister on June 29.

On May 11 this year, a Supreme Court Bench comprising Chief Justice of India Dr D.Y. Chandrachud and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, in a batch of petitions in Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors observed that the status quo ante in Maharashtra cannot be restored because Thackeray resigned and did not face the floor test.

Some new developments

On July 4, MLA Sunil Prabhu and the former political whip of the Uddhav B. Thackeray Shiv Sena filed a fresh petition seeking directions for the expeditious disposal of the disqualification petition against Shinde and legislators of his camp by the speaker. The petitions have been pending for more than a year.

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.

While the May 11, 2023 Supreme Court judgement answered some constitutional issues as explained here by The Leaflet, the court did not decide on the disqualification petitions pending against Shinde and the rebel MLAs. However, the court added that the petitions must be decided in a reasonable time.

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 per Subhash Desai, the issue has been referred to a seven-judge Bench while giving out certain interim measures. 

Some questions that need answers 

According to the Subhash Desai judgment, the Election Commission of India (ECI) cannot be asked to wait till the speaker decides the disqualification petitions to adjudicate who is the real political party.

While stating that, the judgment also clarified that the ‘legislature party’ cannot work independently of a ‘political party’, which means any attempt to differentiate the two is futile. 

These observations were made with regard to the ECI’s decision to allow 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’.

The judgment also noted: “A question may arise as to whether the decision of the ECI under the Symbols Order must be consistent with the decision of the speaker under the Tenth Schedule. The answer is no. This is because the decision of the speaker and the decision of the ECI are each based on different considerations and are taken for different purposes”.

However, in cases where a petition under Paragraph 15 of the Symbols Order is filed after the (alleged) commission of prohibitory conduct (defection), the decision of the ECI cannot be relied upon by the speaker for adjudicating disqualification proceedings. Because there is only one political party when the defection was committed and those legislators incurring defection have no locus to claim themselves as the original political party.

Notably, the court also stated that while deciding which faction is the authentic political party, the test of legislative majority is not the only thing upon which to rely.

The court offered the explanation that when a faction that has a majority in the House is disqualified soon after being adjudicated to be the political party, the very foundation of their claim of being the political party no longer subsists. Even if they are not disqualified, the foundation of their claim is still on uncertain ground at the time of adjudication. 

Thus, the test to be applied by the ECI to decide which faction is the authentic faction of a political party must be unique to each situation and circumstance.

But these are questions for a later time in a developing story.

For now, with the rising intra-party dispute in the Shiv Sena–BJP–NCP ruling alliance over allotment of ministerial portfolios to the NCP, Mumbai is about to become muddier, and not just because of the rains.

The Leaflet