Understanding the Shiv Sena Conflict

How did the case come about?

On November 28th, 2019, Shiv Sena leader and head of the Maha Vikas Aghadi (MVA) Mr. Uddhav Thackeray was sworn in as the Chief Minister of Maharashtra. MVA is an alliance between the Shiv Sena, the Nationalist Congress Party, and the Indian National Congress.

On June 21st, 2022, Mr. Eknath Shinde, the leader of the Shiv Sena in the Legislative Assembly, went missing with a number of other Shiv Sena MLAs. The ‘rebel’ group first moved to Surat, and then to Gauhati. They claimed that the MVA alliance was against the Shiv Sena ideology and that they did not have confidence in the MVA alliance and in CM Thackeray. 

The Thackeray group initiated disqualification proceedings against the rebel group and sent a notice on June 25th, 2022, for acting against party interests. The rebel group was given 48 hours to respond to the notice. On June 26th, 2022, Mr. Shinde moved the Supreme Court of India to dispute the disqualification proceedings initiated against him and the other ‘rebel’ MLAs. 

On June 27th, 2022, a Vacation Bench of the SC comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order. The Bench gave the rebel group 12 days of ‘breathing time’ to respond to the disqualification notice issued on June 25th, by the Deputy Speaker (Acting Speaker). The normal time to respond to the notice of disqualification is 7 days. The Court’s intervention was unexpected. Usually, the Court does not intervene in ongoing proceedings of the House and waits for the Speaker’s decision, which it may later review. 

The Shinde group also issued notice for the Deputy Speaker’s removal from his post.  At the same time, the Shinde group also approached Governor Bhagat Singh Koshyari. They expressed their withdrawal of support for the MVA alliance. The Governor directed that a floor test be conducted on June 30th to see if the Uddhav Thackeray government still commanded the support of the Maharashtra Legislature. 

The Thackeray faction challenged the floor test before the SC in light of the pending disqualification proceedings against the rebel MLAs. However, the Court refused to stay the floor test on June 29th 2022, stating that the results of the floor test would be subject to the outcome of the hearings before the SC. Soon after the SC’s Order, CM Thackeray resigned without facing the floor test. 

On August 22nd, 2022 a 3-Judge Bench comprising former CJI N.V. Ramana and Justices Krishna Murari and Hima Kohli referred the case to a 5-Judge Constitution Bench. 

A 5-Judge Constitution Bench led by CJI D.Y. Chandrachud began hearing the case on February 14th, 2023. During this hearing, the Thackeray side requested the case to be referred to a 7-Judge Bench. After hearing the parties, the Bench on February 17th, 2023, decided to not transfer the case to a larger Bench before hearing it in detail. 

On February 17th, 2023, the Electoral Commission of India (ECI) allotted the name Shiv Sena and the party symbol of bow and arrow to Shinde’s faction.

On February 21st, 2023, the Thackeray side began arguing that the Shinde faction must be disqualified as their actions amounted to defection.

What is Defection?

Defection, under the 10th Schedule of the Constitution, refers to the act of a legislator changing his/her political party after winning an election. Legislators who have defected from their party are disqualified from their seats under the 10th Schedule. 

Why is it necessary to have anti-defection laws?

In 1967, a Haryana-based MLA named Mr. Gaya Lal changed his party 3 times in a single day. This gave birth to the popular phrase ‘Aaya Ram, Gaya Ram’. These kinds of defections destabilise governments. The anti-defection law was added to the Constitution in 1985 to prevent defections and eliminate potential political corruption. This law values the voters’ choice and maintains the sanctity of free and fair elections. 

What are the main arguments of the Thackeray faction?

The Thackeray faction claimed that the Shinde faction’s actions—disregard for the party Whip, the appointment of a new Deputy Speaker, the call for a floor test, and insistence of the Shinde faction’s majority—are all acts of defection. They also argued that the floor test called by the Governor was illegal and that by calling for the floor test, the Governor essentially recognised a ‘split’ in the party. Once an exception to the defection law, splits no longer protect elected members from being disqualified for defection.

Further, they argued that the SC must reconsider its decision in the Nabam Rebia case (2016). This Judgement held that a Speaker could not initiate disqualification proceedings against members of the House if there is a pending notice for his own removal. The Thackeray faction argued that members facing defection had an easy solution to halt proceedings. They could merely file a notice for the Speaker’s removal.

What are the main arguments of the Shinde faction?

On the other hand, the Shinde faction of MLAs claimed that they did not defect from the Shiv Sena. Their actions resulted from internal dissent and they represent the ‘real’ Shiv Sena. Further, in matters relating to the disqualification of MLAs, it was the Speaker of the House and not the SC that had the authority to make a decision. 

They also argued that the Governor was within his rights to order a floor test as he had enough reason to believe that Mr. Thackeray did not enjoy the majority of the House. 

Moreover, they argued that Nabam Rebia (2016) made it clear that when a notice for removal of a Speaker is pending in the House, he cannot conduct disqualification proceedings against other members of the House. 

What next?

On March 16th, 2023, the 5-Judge Constitution Bench reserved Judgement in the case.

The SC has three ways forward:

1. Recognise the Shinde faction’s actions as defection under the 10th Schedule and restore the Uddhav Thackeray government.
2. Uphold the Eknath Shinde faction’s claim that they are the real Shiv Sena and that they formed the current Maharashtra government legitimately.
3. Refer the case to a 7-Judge Constitution Bench.

Why does this case matter?

The SC’s decision will clarify the contours of the 10th Schedule of the Constitution. Specifically, the decision is expected to address the powers of the Speaker, Governor and the SC itself in matters pertaining to internal dissents, splits and internal party rebellions. 

If the Bench decides that the Shinde faction defected from the Shiv Sena, they effectively favour the importance of party identity in crucial decisions in the House over individual member autonomy. This means that individual members of the party cannot disobey the party’s Whip and vote or abstain from voting against the wishes of the party under the guise of ‘internal dissent’. 

Further, if the actions of the Shinde faction amount to defection, it will mean that the Governor was wrong to call for the floor test on June 28th, 2022 and the SC’s June 29th Order refusing to stay the floor test was also wrong. This means that in matters of disqualification (for defection), the Governor cannot order a floor test before a no-confidence motion is passed in the House. 

Moreover, a decision in favour of the Thackeray faction will also clarify the ECI’s role. It will indicate that the ECI incorrectly granted the Shiv Sena party symbol and name to the Shinde faction. The ECI’s decision cannot be based merely on which faction had the majority support in the Legislature. 

On the other hand, if the Bench holds that the Shinde faction did not defect from the Shiv Sena, then individual member autonomy takes precedence over the identity of the party. This would uphold the Governor’s call for a floor test and establish that when the Governor has reasonable grounds to suspect that a party leader does not enjoy the majority of the House, he can call for a floor test before a no-confidence motion is passed in the House.

Moreover, it will conclude that the ECI was right in granting the Shiv Sena’s bow and arrow symbol to the Shinde faction. 

Unless the case is referred to a larger Bench, this Judgement will decide which faction will walk away with the title of ‘the real Shiv Sena.’