Disqualification Proceedings Against Maharashtra MLAs
Subhash Desai v Principal Secretary, Governor of Maharashtra
The Supreme Court is deciding whether the rebellion within the Shiv Sena led by Mr. Eknath Shinde amounts to defection under the Tenth Schedule of the Constitution.
Petitioner: Subhash Desai
Lawyers: Mr. Kapil Sibal; Dr. Abhishek Manu Singhvi, Mr. Devadatt Kamat.
Respondents: Principal Secretary, Governor of Maharashtra; Secretary, Maharashtra Legislative Assembly; State of Maharashtra; Eknathrao Sambhaji Shinde; Devendra Fadnavis; Rahul Narvekar; Bharat Gogawale; 11 Other Rebel MLAs.
Lawyers: Mr. Harish Salve; Mr. Neeraj Kishan Kaul; Solicitor General Tushar Mehta, Mr. K.M. Nataraj
Is splitting within a political party the same as defecting from the party?
Does the rebellion by Mr. Eknath Shinde and other MLAs against erstwhile Chief Minister Mr. Uddhav Thackeray amount to defection?
Can the Shinde faction be subject to disqualification proceedings under the Tenth Schedule?
Is the MLAs’ rebellion an exercise of inner-party democracy or a ‘constitutional sin’ of defection?
On November 28th, 2019, Mr. Uddhav Thackeray of the Shiv Sena, heading the Maha Vikas Aghadi (MVA) alliance with the Congress and Nationalist Congress Party (NCP), was sworn in as Chief Minister of Maharashtra. A month before, on October 24th, 2019, the BJP-Shiv Sena Alliance had won the Assembly Elections. A power sharing conflict—including a demand for rotational Chief Ministership and more cabinet berths—arose between the BJP and Shiv Sena, which ultimately led to the breaking of the alliance. On November 8th, 2019. On November 22nd, the the NCP-Sena-Congress parties announced their new alliance, with Mr. Thackeray as their Chief Ministerial candidate.
On June 27th, 2021, NCP chief Sharad Pawar had confidently proclaimed that ‘the (MVA) government is running smoothly and… (he had) no doubt that this government will last for all five years’. A year later, the state of the MVA alliance was far from stable. On June 10th, 2022, BJP won three of the six Rajya Sabha seats in Maharashtra, delivering the first blow to the MVA alliance. Ten days later, (June 20th, 2022) the BJP won five out of ten seats in the Maharashtra Council polls. As former Chief Minister Devendra Fadnavis pointed out, this was the ‘beginning of change’ in the Maharashtra political landscape.
Power struggles within the Shiv Sena came to the forefront on the day after the Maharashtra Council polls results were released. On June 21st, Mr. Eknath Shinde went missing, along with a number of Shiv Sena MLAs. Many reportedly took residence in Surat, Gujarat and later travelled to Gauhati, Assam. Meanwhile, on the same day, Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party leader, later approved by the Deputy Speaker of the Maharashtra Legislative Assembly, Mr. Narhari Zirwal.
Mr. Shinde responded claiming that he had the support of over 40 MLAs, and represented a significant portion of the party. He further said that, with a dwindling group of supporters, Mr. Thackeray was no longer the party’s chosen representative.
On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath Shinde, for defecting from the Shiv Sena. On the same day, two independent MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal, through an anonymous email, to remove him from his position. The Deputy Speaker rejected the motion, as an unauthorised email lacked authenticity, and issued disqualification proceedings against the rebel MLAs. The Deputy Speaker gave the Shinde faction two days to respond to the disqualification notice.
The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the disqualification proceedings before the Supreme Court on two grounds. First, they argued that the email resolution to remove Deputy Speaker Narhari Zirwal from his position was moved before the disqualification proceedings were initiated—the motion passed by Mr. Ziwal had no bearing. Second, they argued that a minimum of seven days must be given to respond to the disqualification notice—the rebel MLAs were given two.
On June 27th, 2022, a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order. The Bench gave the rebel Shiv Sena MLAs 12 days of ‘breathing time’ to respond to the disqualification notice issued on June 25th by the Deputy Speaker. The Court’s intervention was unexpected. Usually, the Court does not intervene in ongoing proceedings of the House and waits for the Speaker’s decision, which it may later review.
On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra, Mr. Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged by the Thackeray faction in the Supreme Court. After four hours of arguments, on June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister Uddhav Thackeray resigned within the hour, following the SC’s refusal to stay the floor test.
The Court heard the initial challenge against the disqualification proceedings on July 20th, 2022. A 3-Judge Bench comprising Chief Justice N.V. Ramana and Justices Krishna Murari and Hima Kohli heard arguments from Senior Advocates Kapil Sibal and Dr. Abhishek Manu Singhvi for the Thackeray camp of the Shiv Sena and Senior Advocates Harish Salve, Mahesh Jethmalani and Solicitor General Tushar Mehta, for Mr. Eknath Shinde and the rebel MLAs.
The Shinde faction argued that they never defected from the Shiv Sena—they merely chose a different leader for themselves. The Tenth Schedule of the Constitution of India, 1950, which deals with defection of members of the legislature from their political party, would not apply to this present case.
The Thackeray faction argued that the Shinde faction’s actions—disregard for the party Whip, appointment of a new Deputy Speaker, call for floor test, and insistence of the Shinde faction’s majority—were all acts of defection. An exception under Para 3 of the Tenth Schedule once stated that splitting within a party with a minimum of one-third of the party members was not defection. However, this exception was repealed in 2003 through the Constitution (Ninety-First Amendment) Act. The Shinde faction, therefore, no longer enjoyed the protection of the Tenth Schedule.
The Bench directed the parties to submit affidavits explaining the issues that they seek the Court to consider. They expressed concern that there was no clarity on how the Tenth Schedule of the Constitution of India, 1950 would apply to this present case.