May 27, 2024
Home » Anti-Defection Law and Maharashtra’s Speaker’s Decision
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This article has been written by  Syed Raiyyan 1st year of BA.LLB course at Rajiv Gandhi National University of Law (RGNUL), Patiala


The recent decision of the Maharashtra Legislative Assembly Speaker refusing to disqualify the 16 MLAs of the Shinde break-away faction under the Tenth Schedule of the Constitution and also declaring it to be the real Shiv Sena is the most recent development in the political saga that refuses to end. The facts placed before the Speaker were that the rebel MLAs under the leadership of Eknath Shinde had secret meetings in a faraway State and did not attend the crucial legislative party meetings called by the president of the original Shiv Sena party, Uddhav Thackeray, without giving any reason. The decision concerns the 34 petitions filed by both factions in 2022 for the disqualification of 34 members in total. In response to the Speaker’s decision, the Thackeray faction has decided to appeal to the Supreme Court and the Shinde group has decided to approach the High Court of Bombay.

In June 2022, Eknath Shinde and a few other MLAs rebelled against Mr. Uddhav Thackeray, the then-chief minister, and the ruling coalition Maha Vikas Aghadi (MVA). This resulted in the split of the Shiv Sena and the collapse of MVA, which included the Congress and the Nationalist Congress Party (NCP). This sparked a chain of events that led to the resignation of Uddhav Thackeray as the Chief Minister and the governor calling the Eknath Shinde to form the government, which he did through the support of BJP MLAs. Since then, both parties have claimed to be the real ‘Shiv Sena’, and the struggle for constitutional propriety over has continued both on the political and legal front.

Considering that the matter involves the highest democratic forum of the state and its constitutional functioning, it becomes imperative to analyse the decision in light of the Constitution.

Defection and the 10th Schedule

In a political context, defection refers to a situation where a member of a political party leaves their party and joins hands with other parties. The decades of the 1960s and 1970s saw an alarming rise in instances of defection. This prompted the Indian Government to insert the Tenth Schedule in the Indian Constitution, through the 52nd Amendment of the Constitution, in 1985.  

The Tenth Schedule stipulates that any member of the House who gives up the membership of their ‘political party’ or votes contrary to its directions, then that member would be disqualified from the House.  ‘Political party’ under the Schedule means the original political party under whose name and symbol the candidate fought the election. A political party’s entire organization, including its legislators, is referred to as a ‘political party.’ In contrast, the Schedule defines ‘Legislature party’ as ‘the group consisting of all the members of that House for the time being belonging to that political party. . .’

The Schedule originally provided for two instances that would fall outside the definition of defection. First, if at least one-third number of MLAs of the legislature party defect together or if the political party is merged with another party, after which the member has become part of the party thus formed. Along with this, the 6th paragraph grants the speaker of the House to decide on the disqualification of MLAs and MPs under the Schedule.

Speaker’s Decision

In light of these facts, the Speaker of the Maharashtra Legislative Assembly was called upon to disqualify MLAs who had allegedly defected from their original political party by both factions.

In his judgment, the Speaker, Rahul Narwekar, observed that neither the leadership structure nor the Constitution of the party could be considered a reliable barometer for determining the original party. He, therefore, based the decision solely on the number of MLAs in each faction. He held, “There is no consensus on the constitution submitted by both the parties (two factions of Shiv Sena) to the EC. The two parties have different points of views on leadership structure. The only aspect is the majority in the legislature party.” The Thackeray faction had submitted that the decision of the pakshapramukh (leader of the party) was to be considered the party will in cases of intra-party dispute. The Speaker, however, rejected this claim citing the party Constitution of 1999, which had diminished the powers of the party leader. He also decided not to rely on the 2018 Constitution as it was not available with the Election Commission.

Relying on numbers, the Speaker concluded that the Shinde faction was the original political party and thus cannot be held liable for disqualification under Paragraph 2 of the Tenth Schedule of the Constitution. Interestingly, he also decided not to remove Uddhav-led legislators from membership of the House for disobeying Goghavle’s whip, claiming the Shinde faction had not produced sufficient evidence to support its claim that Thackeray faction MLAs had received the whip.

Supreme Court Judgment

The Speaker’s judgment, however, seems contradictory to the Supreme Court’s judgment on the issue. In Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors the Supreme Court laid down the yardstick for disqualifying members of the House under the Schedule. The Court acknowledged that it would be wrong for the Speaker to rely on the number of MLAs of the legislature party defected in reaching a decision.

The case had resulted from a petition filed by Subash Desai against the decision of the Maharashtra Governor to call for a trust vote, the swearing-in of Eknath Shinde as the Chief Minister, the election of a new Speaker, etc. The court recognized that it could not decide on the question of the original political party and the disqualification of members under the Tenth Schedule in the first instance. This power, it has said, rests with the Speaker of the House concerned. It then briefly talked about the nature and purpose of the Tenth Schedule and particularly the effect of the removal of Paragraph 3 of the Schedule. “The effect of the deletion of Paragraph 3 is that both factions cannot be considered to constitute the original political party”, the Court noted. The removal of the Paragraph, the court held, implies that the number of MLAs defecting becomes an ineligible criterion for determining disqualification under the Schedule. Paragraph 3 of the Schedule allowed defection if it resulted from the split, that is when one-third or more of the MLAs of the legislature party decided to defect from the political party. However, this provision has since been removed, and the numbers defected bear no significance on the question of disqualification. The court stated,

The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. In cases where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction.”

The court then went on to provide what the criteria for determining the question of the original party should be. The Court observed that “[i]n arriving at their decision, the Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party. . . Further, the Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly. . .. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue.”

The Speaker’s judgment does not align with the Supreme Court’s decision. The Court had not only provided different gauges to determine the question of disqualification but also explicitly asked the Speaker not to rely on numbers. “This is not a game of numbers, but of something more” it pointed out.

Concluding Remark

As the name suggests, parliamentary democracy is centred around the Parliament. It acts as the highest stage of political, social, and economic deliberation, and the highest representative institution of the government. As WH Morris-Jones once observed, “Parliaments were not invented because there was a demand or need for laws. There were laws before the Parliament as well. . . Parliaments introduce a new element of representation. . .” People’s trust in the institution, thus, becomes fundamental for it to remain relevant and live up to its purpose. And what is Parliament but the people who sit there? It is the MLAs and MPs of the country. The Tenth Schedule was introduced to ensure that these members of the Parliament remain true to their duties and not use their chairs for personal and selfish gains.

The recent judgment given by the Speaker of the Maharashtra Legislative Assembly stifles the purpose of the Tenth Schedule. It vindicates those who indulged in the ‘constitutional sin of defection’. If the reasoning and the interpretation of the Speaker are accepted, then it would result in a situation where a few MPs or MLAs, by joining hands with a different party, can entirely remove the presence of their original political party from the legislature.

An unstable and flimsy Parliament where a political party parliamentary majority can be ended simply if the majority of its parliamentary members decide to, for any reason, an act for which they will face no consequences, will engender nothing but distrust amongst the people. This is bound to have deleterious results on the democratic practice in the country.

However, this political saga is far from over. The Supreme has issued a notice over the petition filed by the Uddhav Thackeray faction. It is hoped that the Court gives teeth to its words in the Subash Desai and enforces the anti-defection law both in text and spirit.

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