Shiv-Sena UBT’s challenge against merger of MPs | Petition Summary

Who are the parties?

Sawant has filed the petition against eight respondents, including Speaker Om Birla, the Joint Secretary of the Lok Sabha and the six MPs who merged with the Shinde camp—Bhausaheb Wakchaure, Nagesh Patil Ashtikar, Omprakash Raje Nimbalkar, Sanjay Bandu Jadhav, Sanjay Deshmukh and Sanjay Dina Patil.

Violation of the democratic framework 

Sawant’s petition argues that the recognition of change in party affiliation—despite clear and categorical denial of any merger—violated the democratic framework in the Constitution. The practice dictates that an MP elected on the ticket of a political party is bound to act in accordance with the directions and whips issued by that political party. It argues that legislators cannot disconnect themselves entirely from the party and function without allegiance. 

According to Sawant, the merger of two political parties can only emanate from the leadership. Legislators, whether individually or in a group, do not have a constitutional right to merge or affiliate with another political party. “The Constitution categorically prohibits them from doing so,” the petition states. It relies on the Tenth Schedule, specifically Paragraph 2(1)(a) and 2(1)(b), which provides for disqualification of a legislator if they commit an act contrary to the directions of their original political party.

Sawant argues that such subversion violates the foundational principles of parliamentary democracy, a facet of the Basic Structure of the Constitution. Voters cast their ballots for candidates based on their affiliation with a political party, its ideology and its symbol. Severing the “umbilical cord” is a “complete betrayal of the electorate’s mandate”, the petition contends. 

Merger only as defence in disqualification proceedings 

Sawant refers to Paragraph 4 of the Tenth Schedule which recognises the “concept of merger only as a defence in disqualification proceedings instituted under the Tenth Schedule”. He points out that no disqualification proceedings had been initiated against the six MPs. Therefore, the Speaker or the Joint Secretary have no power to recognise the merger or change in party affiliation. The Speaker can only do so in a quasi-judicial capacity under Paragraph 6 and the circular does not refer to any such exercise, the petition says. 

The petition relies on the Constitution Bench decision in Rajendra Singh Rana v Swami Prasad Maurya (2007), which held that the question of split or merger “cannot be divorced from the motion before the Speaker seeking a disqualification of a member or members”. The decision further clarified that the Tenth Schedule does not “contemplate the Speaker embarking upon an independent enquiry as to whether there has been a split in a political party or there has been a merger”. 

The petition then states that when a merger of the original political party occurs, the members of that party are presented with a choice to accept or reject the merger. As the Shiv-Sena UBT did not merge with any party, there is no question of legislators claiming an independent merger of their own. Further, any communication on merger has to be made by the Leader of the party and no communication had been made by Sawant regarding any change in the composition of the House. The circular therefore could not have been issued. 

Sawant also points out that the merger revives the defunct concept of “split”, which was included under Paragraph 3 of the Tenth Schedule. Deleted by Parliament through the 91st Constitutional Amendment Act, 2003, “split” was used as a defence for defection. Permitting an independent merger by the six MPs without the consent of the Leader of their political party “effectively allowed a ‘split’ of the legislature party to be recognised under the label of a ‘merger’.” 

Violates the rules of procedure in Lok Sabha

Article 118 of the Constitution says that each House of Parliament may make rules relating to conduct of its business. The Rules contemplate residuary powers of the Speaker framed as “Directions by the Speaker Lok Sabha”. The petition states that Directions 120 and 121 relate to the recognition of a group of members as a parliamentary party. A precondition for recognition is that the parliamentary party must profess the same distinct ideology it had announced at the time of the general elections. Sawant argues that the ideology of the Shiv-Sena UBT, under which the six legislators contested, had a direct conflict with the ideology professed by the Eknath Shinde led Shiv-Sena.

Violates natural justice 

Sawant claims that the circular recognising the merger is “manifestly arbitrary and violative of the principles of natural justice”. He claims that the Speaker and the Joint Secretary never provided him with a copy of the representation and communications made by the six MPs. Further, they never shared an order accepting or rejecting his representations or written submissions. This violates the requirements of Articles 14 and 21, he notes. 

Sawant then suggests that the principles of natural justice are further violated as Shiv-Sena UBT was denied a “meaningful and effective” opportunity of representing their position before the Speaker. The Speaker’s decision is therefore void ab initio (from the beginning) as the right to a fair hearing was never provided. Additionally, the circular does not mention any reasons for accepting the merger or rejecting the Shiv-Sena UBT’s stand. 

Prayer 

Sawant seeks the following prayers: 

1. A writ of certiorari quashing the notification of the Lok Sabha Secretariat approving the merger of the six MPs
2. Any other relief that the Court may deem fit