Sena vs Sena: SC Ruling Sets a New Paradigm, Can't Be Confined to 'Relief' Alone

While Uddhav Thackeray got no relief, the verdict cannot be confined to its decision on 'relief' alone.

If the batter walks and leaves the ground, before the umpire rules him out, then there is nothing that the decision review system (DRS) can do to restore him in that match. 

Last week Uddhav Thackeray got no relief from the Supreme Court which ruled that, ”the status quo ante cannot be restored because Mr Thackeray did not face the floor test and tendered his resignation.” 

The court’s judgment in the Shiv Sena case cannot however be confined to its decision on relief alone.

The political party and its head have moved from being a bit players to lead actors in the anti-defection, disqualification dramas that will follow hereafter.

Political Party Vs Legislature Party - Which is The Real Party?

Jyoti Basu was one of India’s longest serving Chief Ministers. For much of his time, substantial power was wielded not from Writers building, the seat of the state government, but from the headquarters of the CPM, at 3 Alimuddin street. 

There, the Chairman of the party, Comrade Pramod Dasgupta treated the legislature party as but a unit of the party machinery. Similarly the first Shiv Sena government of Manohar Joshi, used to take its orders from the Sena Pramukh Balasaheb Thackeray who ruled from Matoshree in Bandra East. 

Now, the unanimous Supreme Court judgment has ruled that the party referred to in the schedule is the actual political party and not the legislature party alone. The whip that binds the legislators comes not from within the legislature, but from outside it. 

The court ruled:

“The political party and not the legislature party appoints the Whip and the Leader of the party in the House. Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party."

What Will Constitute As Defection?

The decision of the Speaker as communicated by the Deputy Secretary to the Maharashtra Legislative Assembly dated 3 July 2022 is contrary to law. 

“The Speaker shall recognise the Whip and the Leader who are duly authorised by the Shiv Sena political party with reference to the provisions of the party constitution, after conducting an enquiry in this regard and in keeping with the principles discussed in this judgment," the order read.

The principles stated are:

• "The Speaker must consider the constitution of the party as well as any other rules and regulations which specify the structure of the leadership of the party." 

• "If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the ECI before the rival factions emerged."

•  "In other words, the Speaker must consider the version of the party constitution which was submitted to the ECI with the consent of both factions. This will obviate a situation where both factions attempt to amend the constitution to serve their own ends." 

• "Further, the Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly."

• "This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue."

It is only if the parent party splits, and such split is assented to by two thirds of the legislature party and such a party faction merges with another political party, that the defence comes into play. 

The pertinent part reads, “ The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings."

The order clarifies that in cases "where a split has occurred in a political party or in a legislature party, members of neither faction may validly raise the defence that they are the political party in the event that each faction files petitions for the disqualification of members of the other faction."

"Members of multiple groups or factions can all continue as members of the House if the requirements of Paragraph 4(1) of the Tenth Schedule are satisfied," it adds, thereby clarifying that two (or more factions) of a political party can both remain in the House if one of the factions has opted to merge with another political party (in terms of Paragraph 4(1)(a)) and the other faction has chosen not to accept the merger.

Wholesale Buying of MLAs May No Longer Suffice

So far the defection games that accompanied a change of government, hinged greatly on the decisions of the Speaker.

Often the Speaker was a person who was chosen by the incumbent government. Challengers to the status-quo paid great attention to neutralising the Speaker, either by winning him over or by replacing him.

The fall of the Uddhav government is also owed to the fact that the original speaker Nana Patole, resigned to become a cabinet minister and the deputy speaker was technically knocked out by a faxed motion of no confidence.

The primacy of the office of the speaker in motions of disqualification, had rendered the speaker himself as a wielder of power and protection.

This judgement has now thrown the Chairman of the party as another pivotal pillar of the process.

Thus any question of whether a party whip was disobeyed by a Congress or BJP legislator, would necessarily involve the question of who was appointed a whip, by Mr Kharge or Mr Nadda.

While National parties may have well defined processes and personalities, the real problem would be in smaller legislatures with smaller parties.

In a 40 member Goa assembly for instance, the support of the president of the Maharashtrawadi Gomantak Party or the Goa Forward Party, might end up being more crucial than the support of the MLAs of the party.

(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)