Supreme Court on the Political Upheaval in Maharashtra

The Supreme Court yesterday rendered a path-breaking decision on the role of the Speaker of the Legislature, Governor, Election Commission of India and interpretation of Tenth Schedule laying down disqualifications on the ground of illegal floor-crossing. As usual, Supreme Court has delivered a prolix judgement running into hundred and forty-one pages and it is humanly not possible to capture all its nuances in a short article like this one.

In order to fully comprehend what has been held by the Court in this significant case, we adopt an inverse approach. First, we clarify what the Judgement does not decide; thereafter, we provide a brief sketch of important features of this judgement and conclude the article with our observations on implication of this case on Maharashtra politics.

What the Judgement Does Not Decide

To begin with, it must be made very clear that the Judgement does not explicitly declare the present government formed by Mr. Shinde either as unconstitutional or contrary to the norms of constitutional morality. The judgement also does not recognise the contention of the petitioners that appointment of Mr. Shinde as Chief Minister of Maharashtra by the Governor is in violation of Article 164 (1B) (para 203) and that the Governor exceeded his authority by recognising one of the factions as the real ‘Shiv Sena’ (paras 204 & 205).

While deferring the correctness of the law laid down in Nabam Rebia & Bamang Felix v.
Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016) 8 SCC 1, to the wisdom of a larger constitution bench of seven judges, the Court is categorical in holding that the present case is not in the mould of the ratio of Nabam (para 67). In this connection, it is worth submitting that the law declared by Supreme Court under Article 141 is binding not only on all other courts but also on the smaller and co-ordinate benches of the Supreme Court. Clearly, therefore, the Bench while passing the interim order dated June 27th 2022 must have been mindful of Nabam. Moreover, rejecting the contentions of the petitioners, the Court does not direct the Deputy Speaker, Mr. Zirwal, the speaker prior to 3 July 2022, to decide the disqualification petitions (para 85).

Key Features of the Judgement

This leads us to briefly delve into important findings of the Court:

a. Most vitally, the Court categorically holds:

 “…the Speaker by recognising the action of a faction of the SSLP without determining whether they represented the will of the political party acted contrary to the provisions of the Tenth Schedule, the 1986 Rules, and the Act of 1956. The decision of the Speaker recognising Mr. Shinde as the Leader is illegal.”(para 123)

The same led the Court to direct the Speaker to “…recognize the Whip and the Leader who are duly authorised by the 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 judgement.” (para 124)

Seen in this light, though, the appointment of Mr. Shinde as Chief Minister by the Governor is not under fire, his recognition as “the leader” by the Speaker has been held to be unconstitutional.

b. The Court further observes:

“In the present case, the Governor did not have any
objective material before him to indicate that the incumbent government had lost
the confidence of the House and that he should call for a floor test. Hence, the
exercise of discretion by the Governor in this case was not in accordance with law.” (para 193)

In other words, the gubernatorial conduct in directing the Chief Minister to floor test was not actuated by objective material. However, the fact that the Court does not lay down any parameters for determination of objectivity of materials is also evident.

c. The Court also declares the decision of the Speaker to appoint a new whip as illegal in absence of holding of any objective enquiry. (para 119)

d. The Court refuses to be drawn into political thicket and leaves the crucial question of enquiry into disqualification of members to the constitutional obligations of the Speaker. (para 85) By holding so, the Court also anchors its reasoning in the doctrine of separation of powers.

e. On the same plank, though the Court recognises the constitutionally distinct role of Election Commission of India to decide the disputes of factions of political parties over symbols under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order 1968, it guards the Commission against being exclusively swayed by the consideration of a faction having majority in legislature party.

f. The Court is also categorical in casting serious aspersions on blowing out of proportion the intra-party wrangling between the factions of Shiv Sena and laments over politicisation of office of the Governor. (para 188)

g. The Court also clearly recognises the significance of the notion of political party and cautions against conflating the distinction between legislature party and political party. In other words, overlooking the role of political party would provide legislators free licence to disconnect their cords from the very political party on the strength of which they enter the legislature.

h. Last but not the least, the Court categorically holds that outside the five defences prescribed under the Tenth Schedule, factions of a political party satisfying the conditions in Paragraph 2(1) fall foul of anti-defection and any inroads, however indirect, would introduce the collateral defence of split in the anti-defection regime from the back door.

The Impact of the Judgement

This leads us to examine the implications of the above findings on the stability of the government of Maharashtra. In our opinion, the Speaker must conduct enquiry in accordance with the parameters of this judgement to determine the legality of the Chief Whip as well as the party leader. Further, he must expeditiously decide disqualification petitions before him. If, upon the conclusion of the enquiry, Speaker were to disqualify the defecting members along with the Chief Minister, though there may be change in the Chief Ministership, there will not be any threat to the stability of the government as the present coalition would still have sufficient numbers. However, the political ramifications and embarrassment caused by such a result may be too bitter a pill to swallow against the momentary celebrations of having saved the government.

To sum up, though Chief Justice D. Y. Chandrachud has admonished both the Speaker as well as the Governor for having faltered in the discharge of their constitutional duties, he blends pragmatism with idealistic constitutionalism by extending invitation to the Speaker to comply with his constitutionally mandated role as an impartial adjudicator of anti-defection proceedings. This judgement assumes significance for its candid reminder to the Constitutional authorities to live up to the constitutionally generated legitimate expectations held by the people of the Republic of India.

Dr. Sanjay Jain is a Professor at NLSIU, Bengaluru. Ms. Malika Jain is an LL.M. Candidate at NLSIU, Bengaluru