Maharashtra Political Crisis Day #8: Shinde Faction Argues 10th Schedule is Inapplicable

Disqualification Proceedings Against Maharashtra MLAs

Judges: D.Y. Chandrachud CJI, M.R. Shah J, Krishna Murari J, Hima Kohli J, P.S. Narasimha J

Today, the Constitution Bench led by CJI D.Y. Chandrachud continued hearing arguments from the Eknath Shinde faction concerning the Shiv Sena rift in Maharashtra. Senior Advocate Neeraj Kishan Kaul argued that the 10th Schedule of the Constitution of India, which governs disqualification of MLAs, does not apply in this case. 


On June 21st, Shiv Sena party member Mr. Eknath Shinde,  went missing, along with several Shiv Sena MLAs. 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. 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, stultifying his power to decide on Shinde’s disqualification.

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. On June 27th, 2022, a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order, staying the disqualification proceedings.

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, making way for the Shinde faction to consolidate power.

The Thackeray faction argued that the Shinde faction’s actions—disregard for the party Whip, appointment of a new Deputy Speaker, call for a floor test, and insistence of the Shinde faction’s majority—were all acts of defection.

Internal Dissent Is Not Grounds For Defection, 10th Schedule Does Not Apply

Mr. Kaul strongly emphasised that the Shinde faction MLAs were facing disqualification merely because they held misgivings with the creation of the Maha Vikas Aghadi alliance. Before the polls were announced in the 2019 Maharashtra elections, the Shiv Sena was allied with the Bharatiya Janata Party. However, in order to arrive at a majority, they formed a coalition with the Indian National Congress and the Nationalist Congress Party. 

This created internal dissent within the party which, according to Mr. Kaul, eventually resulted in the creation of the breakaway Shinde faction of the Shiv Sena. Both the Supreme Court (SC) and the Election Commission (EC) protect internal party dissent. 

The SC in Balchandra L. Jharkoli v B.S. Yediyurappa (2011) held that internal dissent cannot be provided as a ground for defection from the political party. Further, the Election Commission Symbols Order, 1968 (Symbols Order) recognises the possibility of rival factions within a single political party. In these situations, the EC may decide which faction represents the party. In order to do so, Mr. Kaul also argued that the Symbols Order considers the number of MLAs in each faction as a key factor in determining who forms the original political party. 

Rival factions, as recognised by the EC, are completely distinct from ‘splits’ in a political party. Splits were recognised as a defence against disqualification on the grounds of defection until 2003, when the provision was repealed from the 10th Schedule of the Constitution. In these cases, if atleast one-third of the party decided to break away and form a new party, it was recognised as a split. However, Mr. Kaul emphatically stated that the Shinde faction did not split from the Shiv Sena. They fell under the aegis of rival factions under the EC Symbols Order. 

Governor Correctly Performed His Constitutional Duty By Directing Floor Test

Responding to concerns that the Governor should not have called for floor test on June 30th, 2022, Sr. Adv. N.K. Kaul argued that he did not have a choice. Even aside from the 34 Shinde faction MLAs who demanded a floor test, a number of independent MLAs and sitting ministers made similar requests. 

Speaker Must Decide Disqualification Petitions First, Not the Supreme Court

Mr. Kaul argued that the Speaker of the House is the sole authority recognised under the 10th Schedule of the Constitution to decide disqualification petitions. In this case, the Speaker did not make a decision on the disqualification petitions. So, the SC cannot take over their authority by deciding it first. The Thackeray factions contention that this is an ‘extraordinary circumstance’ is not a justification to ‘bypass constitutional machinery’.

The Court is expected to conclude hearings in the case tomorrow (March 2nd, 2023).