Maharashtra Speaker’s decision on ‘real Shiv Sena’ is legally vulnerable

Did Speaker Rahul Narwekar misread the Supreme Court?

Chief Minister Eknath Shinde (right) with supporters in Thane on January 11, celebrating the Speaker’s decision on the “real Shiv Sena”. | Photo Credit: PTI

On January 10, the Speaker of the Maharashtra Assembly, Rahul Narwekar, recognised the Eknath Shinde-led Shiv Sena as the “real Shiv Sena” and rejected the Uddhav Thackeray-led faction’s petition to disqualify the rebel Sena legislators under the Tenth Schedule of the Constitution on the grounds of defection. By doing so, he deprived the party’s former Whip, Sunil Prabhu, appointed by the Uddhav Thackeray faction, of the umbilical cord that linked the organisational and legislative wings of the Shiv Sena before it split.

Narwekar’s decision, although reasoned, suffers from a few infirmities that can be traced to the Supreme Court’s May 11, 2023, judgment of the Constitution Bench in Subhash Desai v. Principal Secretary, Governor of Maharashtra, and Others.

Supreme Court’s Subhash Desai judgment

In that judgment, a five-judge bench expressed its inability to provide relief to the Uddhav Thackeray faction despite faulting the then Governor, Bhagat Singh Koshyari, and Narwekar for their erroneous decisions in the lead-up to the resignation of Uddhav Thackeray’s government on the eve of the floor test that Koshyari had ordered to be held on June 30, 2022, which the court’s vacation bench refused to interdict.

The bench reasoned that had Uddhav Thackeray refrained from resigning, the court could have considered the grant of the remedy of reinstating his government. Specifically, the bench held that Koshyari did not have any objective material before him to indicate that the Uddhav Thackeray government had lost the confidence of the House and that he should call for a floor test.

In Paragraph 123 of Subhash Desai, the bench held the Speaker’s decision to recognise Eknath Shinde as the leader as illegal. The bench found that the Speaker had recognised the action of a faction of the Shiv Sena Legislature Party without determining whether it represented the will of the political party. It clearly stated: “The decision of the Speaker recognising Mr. Shinde as the leader is illegal.”

The bench also held that the Speaker must recognise the Whip and the leader, who are duly authorised by the political party under the provisions of the party constitution, after conducting an inquiry in this regard, in keeping with the principles discussed in the judgment. Taking a cue from this reasoning, Narwekar claimed that it was imperative prima facie to determine when the rival factions emerged.

The Supreme Court laid down the law in Subhash Desai, according to the Speaker, that “in view of the deletion of Paragraph 3 of the Tenth Schedule [dealing with splits], when rival factions emerge as a result of rift/split in a party, the Speaker has to necessarily find which faction is the real political party while recognising the ‘leader’ and the ‘Whip’ of the party”.

Paragraph 3 of the Tenth Schedule was deleted through an amendment in 2003. It dealt with exemption from disqualification on the grounds of defection if a rebel group claims one-third of the strength of the legislature party.

Highlights

• Maharashtra’s Speaker declared the Eknath Shinde faction the “real Shiv Sena,” granting them control over the party and disarming a challenge from Uddhav Thackeray’s side.
• While seemingly based on a Supreme Court ruling, the Speaker’s decision prioritising Legislative majority raises questions about his interpretation of the law and could be challenged.
• The victory for Shinde strengthens his grip on the party, but legal uncertainties remain regarding the future of the Shiv Sena and potential disqualification of rebel MLAs.

Defection rules

This left only Paragraph 4 of the Tenth Schedule to deal with exemption from disqualification on the grounds of defection if a rebel group claimed two-thirds support of the legislature party and merged with another party. As the Shinde group did not merge with any party, this exemption could not come to its rescue.

The Speaker found that the 2018 leadership structure was not at all in conformity with the constitution of the Shiv Sena. The original constitution provided that the “Rashtriya Karyakarini” (national executive of the party) shall be the party’s highest authority, whose decisions shall be final in all matters concerning party policy and party administration.

Narwekar ruled that the party’s “paksh pramukh” was only a “presiding member of the said highest authority in the party, and in no way is the sole repository of decision making in the party”. He added: “Thus, in view of the same, that the submission of the Uddhav Thackeray faction that the decision and the will of the paksh pramukh is synonymous with the will of the political party cannot be accepted.”

The Speaker also pointed out that if this proposition is accepted, then in a situation where a party president, who is also a legislator, himself defects, then he could simply escape the wrath of the Tenth Schedule by pleading that his decision was the will of the party.

Further, if this proposition is to be accepted, it will mean that no member can ever voice concerns against the party president, and the party president may possibly be able to seek disqualification against any member who questions his credibility. This would run contrary to the concept of intra-party dissent, the Speaker ruled, in view of the finding of the seven-judge bench of the Supreme Court in Kihoto Hollohan v. Zachillhu and Others that the Tenth Schedule was not an anti-dissent law.

Speaker’s erroneous reading

An erroneous reading of Subhash Desai led Narwekar to conclude that the legislative majority was the basis to decide which faction was the “real political party” when a rebel faction emerged.

Legislative majority can be inferred from the Shinde faction resolutions dated June 21 and 23, 2022, available on record at the Legislature Secretariat, and the admitted position can be inferred from the initiation of petitions against 38 legislators of the Shinde faction by the Uddhav Thackeray faction, he concluded. The Shinde faction had an overwhelming majority of 37 out of 55 MLAs, and this clinched the issue in favour of Chief Minister Eknath Shinde, according to Narwekar.

But the Supreme Court held in Subhash Desai that the Speaker should determine who the authorised leader of the Shiv Sena was, and who its authorised Whip was, and that he should do so by considering the matter from the point of view of their appointment by the political party, and not the legislature party. (The power to appoint a Whip vests with the political party and not the legislature party.)

In Paragraph 119 of Subhash Desai, the bench held that the Speaker ought to have taken into consideration the split that took place within the Sena, which was discernible from the two sets of resolutions placed on record before the Legislature Secretariat appointing two different leaders and Whips.

The bench clarified that it was not enough to establish that the appointment was done by the real political party, it must also be seen if the appointment reflected the will of the real political party. However, the judgment offered no clue on how to discern the “will of the real political party”.

Having held that the Shinde faction was the real political party when the rival factions emerged, the Speaker concluded that Sunil Prabhu ceased to be the duly authorised Whip and thus ceased to reflect the will of the “real political party”.

The Speaker also suggested that the “will” of the “real political party” can be claimed by the faction claiming numerical majority in the legislature, an inference that cannot be drawn from reading Subhash Desai.

Once Speaker had held that the Shinde faction was the “real political party”, he found that it was no longer possible to accept the proposition that a Whip appointed before the emergence of the faction would continue to hold the power, especially when he did not belong to the “real political party”.

The real Whip

Although Prabhu’s removal was by a resolution of the legislature party, and not by the political party, the recognition of the Shinde faction as the “real political party” has resulted in severing the umbilical cord that connected Prabhu to the “real political party”, the Speaker reasoned in his decision. If this were not so, then the legislators would have no choice but to follow the direction of any Whip and that might not reflect the will of the political party or might even be contrary to the intent or directives issued by the political party, he suggested.

Such a Whip could act with impunity against the will of the political party ane the legislature party on the specious assumption that his original appointment was validly made, Narwekar concluded. These are debatable assumptions of the Speaker from a reading of Subhash Desai.

The Speaker found that Bharat Gogawale was validly appointed as the Whip by the Shiv Sena political party on June 21, 2022.

A mere unsubstantiated statement that the legislators had gone incommunicado could not even be grounds to attract disqualification under Paragraph 2(1)(a) of Tenth Schedule, the Speaker ruled. The submission of the petitioner that the respondents had gone incommunicado ceased to hold any meaning for the purpose of disqualification, he concluded.

Newspaper/media reports relied on by the petitioner could not be taken as conclusive evidence of anti-party activities. They could at most be considered only hearsay. A mere unsubstantiated statement could not be grounds to attract disqualification, the Speaker concluded. It is improbable that the Speaker could not consider the facts of rebel Shiv Sena MLAs given shelter in expensive resorts by BJP-ruled governments in Gujarat and Assam at the time of the split in June 2022 as relevant to adjudicate on allegations of defection.

Rather than adjudicate on allegations of defection by rival Sena factions, the Speaker went on a tangent on the aims of the Tenth Schedule, claiming that it was not intended as a device to be used for imposing intra-party discipline, much less for administering the party.

No party’s leadership can use the provisions of the Tenth Schedule as a deterrent to stifle the collective dissent of a large number of members by threatening them with disqualification under it, he suggested. His decision smacks of a refusal to accept that the split provision in the Tenth Schedule stood deleted only to facilitate the disqualification of legislators whose defection is proven (irrespective of their numbers within the legislature party).

None can dispute the Speaker’s assertion that he has to ensure that the dispute falls within the provisions of Paragraph 2(1)(a) and (b) of the Tenth Schedule, dealing with what constitutes voluntarily quitting the party and violation of direction by a political party respectively; and that his powers are not sought to be invoked with ulterior motives for party gains.

But the January 10 decision indicates that it is the numerical strength of the rival factions of a legislature party that matters to the Speaker when determining whether an allegation of defection against an elected member of a political party would result in disqualification of that member. If it were that simple, it would have been explicitly spelt out within the Tenth Schedule and there would have been no need for the Constitution Benches of the Supreme Court to clarify the law in several cases.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.