Disqualification of Maharashtra MLAs Day #5: EC Argues That Political Parties and Legislative Parties Are Distinct

On August 4th, 2022, a Bench led by CJI N.V. Ramana and comprising Justices Krishna Murari and Hima Kohli continued hearing arguments over the challenge to the disqualification proceedings initiated against 13 MLAs by the Deputy Speaker of the Maharashtra Legislative Assembly. 

In the previous hearing, on August 3rd 2022, the Bench heard arguments from both sides on whether a split within a party could be considered the same as a defection. Senior Advocate Kapil Sibal, arguing for the Uddhav Thackeray faction of the Shiv Sena, claimed that the rebel MLAs had no protection under the Tenth Schedule and must be disqualified for defecting from the Shiv Sena. 

Mr. Salve, appearing for the Shinde faction, expressed concern that the present challenge might affect the party members’ inalienable right to protest within the party. The Bench asked Salve to clarify the issues raised before today’s hearing.

Mr. Salve: MLAs Are Not Disqualified Merely Because Disqualification Proceedings Are Pending

Sr. Adv. Harish Salve argued that members of a legislative assembly cannot be considered to be disqualified merely because disqualification proceedings had been initiated against them. For instance, if the Speaker of the House takes three months to arrive at the decision to disqualify a member of the House, are all actions done by that member in the House illegal?

Mr. Salve clarified that only once the Speaker decides to disqualify a member, can they be considered disqualified—not while the proceedings are pending. A disqualification proceeding when completed will apply retrospectively—the member is considered to be disqualified from the date of initiation of the proceedings. All actions done by that member between the date of initiating the disqualification proceedings and the date of arriving at a decision would be legal and valid.

Mr. Salve further argued that the Tenth Schedule was not an ‘anti-dissent’ law. It did not punish members for every instance of voting against party directions. Members of a Legislature Party often defy the directions of the whip. However, the question of disqualification would only arise if the party initiated disqualification proceedings against the member’s dissent. Every instance of dissent does not invite disqualification—it is only used if the party chooses to do so. 

The larger intent of anti-defection law, Mr. Salve explained, was to prevent ‘unwholesome defections’. This would ensure that dissent was not quelled, only ill-intentioned party defection would.

Mr. Sibal: Identity of Political Party Does Not Hinge on Assembly Majority

Mr. Sibal, raised concerns regarding the pending petition before the EC filed by the Shinde faction, requesting the EC to declare the Shinde faction as the ‘real’ Shiv Sena. CJI Ramana asked Mr. Sibal to explain why the pending Election Commission decision was relevant in this case. 

Mr. Sibal pointed out that the Shinde faction’s claim to be the ‘real’ Shiv Sena was solely based on the majority they hold with the 40 MLAs in the Legislative Assembly. If the rebel MLAs are held to have indeed defected from the political party, their claim before the Election Commission would no longer stand. 

Mr. Singhvi, highlighted that if the present case before the Supreme Court rendered the rebel MLAs disqualified, the claim before the EC would fall. However, if the Election Commission decided which faction was real before the SC’s decision, the question of defection would effectively be resolved—either way, the case before the SC would become infructuous. 

Election Commission: Political Party and Legislature Party Are Distinct

Mr. Arvind Datar, appearing for the Election Commission drew a distinction between a political party and a legislative party. 

He claimed that the EC was duty bound to investigate all claims over the identity of political parties. By making his claim, the Shinde faction had asked for political party recognition. The question of disqualification did not fall within the EC’s purview.

The Bench permitted the Election Commission to look into the claims made by the Shinde faction and allowed the Uddhav Thackeray faction to submit its response.  The Bench also directed the EC to  be accommodative of requests for more time. However, they instructed the EC not to take any precipitative action. 

The Bench reiterated that the case might need to be referred to a Constitution Bench.

The Court will hear the matter next week.