Shiv Sena Judgment: Slap on the wrist but with lessons for the future

Supreme Court's decision on the Eknath Shinde (right) Uddhav Thackeray row.

Yesterday, the Supreme Court delivered the much-awaited judgment in the Shiv Sena dispute. The genesis of the dispute was the rebellion against Maharashtra Chief Minister Uddhav Thackeray by a faction of his own political party the Shiv Sena led by Eknath Shinde. Ultimately, Thackeray resigned, and Shinde was sworn in as the Chief Minister.

The judgment deals with significant issues concerning anti-defection law, role of the governor, and power of the Speaker of the legislative assembly to adjudicate disqualification proceedings. The judgment holds key lessons for similar disputes in the future but unfortunately falls short on reprimanding the erring constitutional functionaries.

The Role Of The Speaker

One of the key contentions before the Court was the correctness of the decision in Nabam Rebia v. Deputy Speaker. In Nabam, the Supreme Court held that when the position of a Speaker is challenged, they must not adjudicate disqualification petitions till the time the Speaker demonstrates the right to continue on the post by winning the support of the Assembly.

Nabam was central to the Shiv Sena dispute. The Deputy Speaker (office of the Speaker was vacant) appointed by the Thackeray faction had issued disqualification notices under anti-defection law to the Shinde faction, and the latter had filed a notice for removal of the Deputy Speaker instead. Going by the judgment in Nabam, the Deputy Speaker could not adjudicate the disqualification proceedings until he proved his majority in the assembly.

In an assembly, the Speaker is elected through voting by the members and usually the candidate with the support of the political party with a majority of seats is elected. Importantly the Speaker is the sole adjudicatory body that decides whether a member should be disqualified for violating an anti-defection law.

Recognising Nabam Rebia’s Flaw

The decision in Nabam allows for an unfortunate scenario wherein unchecked horse trading can happen which anti-defection law otherwise aims to prohibit. Let me explain with the Maharashtra example. By defying the dictates of the Thackeray led Shiv Sena, the Shinde camp arguably violated the anti-defection law under which one is bound by the directives of your party. The natural consequence of this is a disqualification notice issued by the Speaker.

However, the Shinde camp arguably anticipated such a move and evaded disqualification by simply issuing a notice for the removal of the speaker. Due to Nabam, the Speaker was barred from adjudicating on their disqualification till he proved his majority. In the meanwhile, the Shinde camp with the support of the BJP formed the government and replaced the Speaker. The new Speaker elected with their support is unlikely to disqualify them.

In the present case, the Supreme Court has taken this possible misuse into account and doubted the correctness of Nabam. As a result, the Court has rightly referred the case to a larger bench for reconsideration. The Court has also passed an interim direction stating that in a similar situation in future, the Speaker can examine whether the said application for his removal is bona fide or intended to evade adjudication, subject to judicial review by the Court. This is an important direction that will prevent horse-trading in future and attempts to topple a duly elected government on one hand, and also prevent misuse of power by the Speaker.

Governor In The Political Arena

The Governor of Maharashtra played a key role in the Shiv-Sena dispute. In the midst of the internal party turmoil, he swiftly acted on the respective resolutions passed by the Shinde groups and the opposition parties indicating their no-confidence in the government, and asked Thackeray to prove his majority in the House.

The Court has termed the Governor’s behaviour against the law. It observed that although the Governor has discretion to call for a floor test, this discretion must be based on objective criteria and not his subjective satisfaction.  In the present case, the discretion was improperly used as there was no evidence to indicate that the government had lost the confidence of the House.

Instead, the floor test was used as a medium for resolving internal party disputes. These are important observations especially at a time when Governors have played the role of kingmakers, especially in states ruled by the Opposition parties.

Setting No Precedent

The Court’s judgment, although a lodestar for the future, is a mere slap on the wrist of constitutional functionaries who violated the law and reaped political benefits. For instance, in the Court’s opinion, the Governor erred by calling a floor test. However, the Court refused to stay the test at the time and as a result, Mr. Thackeray resigned, and the Shinde faction was able to form a government in the state.

Similarly, the Court cautioned that the dictum in Nabam can be misused by MLAs anticipating disqualification petitions. However, it failed to stop the same from happening in this case, when it was approached at the time.

It is hoped that in future, the Court follows the letter and spirit of this judgment and timely intervenes when a similar petition presents itself in future. Timely action by the judiciary can prevent horse trading and save a rightly elected government from being toppled.

Swapnil Tripathi is a lawyer and tweets at S_Tripathi07. Views are personal and do not represent the stand of the publication.