Maharashtra Speaker’s Judgement on Shivsena Factions

Context:

• The Maharashtra Assembly Speaker decided that out of two Shiv Sena factions, the one led by Eknath Shinde is the real and legitimate Shiv Sena. This came after a disagreement over disqualifying 54 MLAs under the Anti-defection law due to the party split.

What is the Anti-Defection Law?

1. The Anti-Defection law punishes MPs or MLAs who change the party from one to another.
2. Since 1967, the trend of MPs or MLAs switching parties has increased. Scholars use the slogan "Aaya Ram, Gaya Ram" to highlight these defections by politicians.
3. Such defection from one party to another created political instability for the government who could fall due to sudden defection by its members.
4. Hence, the government brought the 52nd Constitutional Amendment in 1985 to stop such defections. The amendment added the 10th Schedule to the constitution and provided the following cases in which disqualification of MPs or MLAs will take place:
   1. When elected lawmakers leave their party voluntarily or vote against it in the legislature.
   2. When an independent MP/MLA joins a party after being elected.
   3. When nominated legislators join a party 6 months after their appointment to the House.
5. Exception:
   1. Under the 1985 Act, if 1/3rd of a political party's elected members defected, it was called a 'merger’ and they were not disqualified.
   2. But, with the 91st Constitutional Amendment Act in 2003, now at least 2/3rd of the members must support a "merger" for it to be valid under the law.
6. The decision on the disqualification is taken by the Speaker and there is no time limit for the speaker to make that decision.

What has happened in the case of Maharashtra?

1. In 2022, when Uddhav Thackeray (leader of the Shiv Sena Party) was Chief Minister of Maharashtra, the Shiv Sena party was split into two factions: one led by Uddhav Thackeray and the other led by Eknath Shinde.
2. The Governor called for a floor test to check whether Thackeray has majority support in the state assembly. A floor test is usually conducted when there is doubt or dispute about whether the ruling party or coalition has the majority in the legislative body. But, Thackeray resigned and Eknath Shinde became CM with the alliance of the BJP.
3. Thackeray group removed Shinde as leader of the party and on the other hand, Shinde group also passed a resolution supporting Shinde’s leadership. Shinde group also appointed a different person as Chief Whip.
4. A Whip is a member of the party who ensures communication between party leaders and members and makes sure that members of that political party vote together and follow the party's decisions. Violating the communication from the whip can lead to the disqualification of the party member.
5. The Thackeray group said that the Shinde group ignored the party whip given by them and hence they should be disqualified. Shinde group said that they did not receive any whip.
6. Shinde group brought a disqualification plea against the Speaker himself. As per the judgement under the Nabam Rebia case, if the speaker himself is facing disqualification, he cannot make decisions on any disqualification pleas.
7. Hence, the matter went to the Supreme Court.

What was the Supreme Court’s response?

1. On disqualification of MLAs: SC said that it cannot interfere in the proceedings of legislature and hence, the Speaker should decide on the disqualification. He should consider the party constitution as a reference.
   1. Hence, the speaker recently made his decision that the Eknath Shinde faction is authentic.
2. On the Governor’s role in calling the floor test: The Governor did not act as per law as he had no objective material to doubt and to call such a floor test. Also, the Governor has to act on the advice of the Council of Ministers and no such advice for floor test was given.
3. On Appointment of Whip: The appointment of a different person as party whip by the Shinde group was illegal.
4. On Nabam Rebia Case Judgement: Considering the loophole in the judgment, SC decided to review this case by assigning it to a larger bench.

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