Context

• The article highlights that the ‘Maharashtra political controversy cases’ is an opportunity with the Supreme Court of India to plug all the loopholes in the anti-defection law and in its earlier judgements on the issue.

The Story So Far

• These “Maharashtra political controversy cases” arose out of the events in 2022, when the ruling Maha Vikas Aghadi (MVA) coalition (the Shiv Sena, the Nationalist Congress Party and Congress) lost power after an internal splintering of the Shiv Sena party.
• A rebel faction led by Eknath Shinde then joined hands with the BJP to form the new ruling coalition.
• The Deputy Speaker (there was no Speaker at the time) disqualified the “rebels”, who then appealed in SC, arguing that there was a pending no-confidence motion against the Deputy Speaker.
• The rebel MLAs thus emphasized that as per SC’s judgment in Nabam Rebia case (2016), the Deputy Speaker cannot decide on the disqualifications while his own removal was pending.
• The SC’s vacation Bench in an “interim” order stayed the Deputy Speaker’s action but also directed a floor test.
  • The upshot of this was that the “rebel MLAs” participated in that floor test, and voted to bring the government down.
  • The new government was swiftly sworn in (by the Governor), and appointed its own Speaker.
• The dispute has been continuing since then, with the most recent development being an Election Commission of India’s (ECI) order declaring that Eknath Shinde’s faction is entitled to the party name and symbol of the Shiv Sena.

What are the Submissions in SC by Two Rival Groups of the Shiv Sena?

• The Uddhav Thackeray faction had sought a re-examination of the principle laid down in the Nabam Rebia judgment.
  • They submitted that the Constitution does not envisage any restraint on the functional autonomy of the speaker from deciding disqualification petitions, even at a time when a notice for motion for his removal is pending.
  • They thus argued that the Nabam Rebia judgment left the anti-defection law redundant.
  • They further held that SC’s 2022 decision granted an extension of time to the rebel Shiv Sena legislators who were facing disqualification notice to file their replies before the then deputy speaker.
• The rival Eknath Shinde-led faction however urged the bench not to review the judgment.
  • They argued that the absence of a restraint on speaker, could change the composition in the assembly by disqualifying members, allowing a leader without majority to continue as the CM of the state.
  • They also submitted that a reference to extension of time is unnecessary and purely “academic” as the rebel MLAs never got to vote and Uddhav Thackeray resigned as CM a day before a proposed floor test.

Obstructive Outcomes Likely by the Nabam Rebia Case

• The SC’s 2016 judgment in Nabam Rebia vs Deputy Speaker case held that a speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending.
  • It also held that a floor test can be ordered in the interim (by the Governor or the court) in that case.
  • Under Article 179 of the Constitution, a speaker (or Deputy Speaker) can be removed by a resolution of the Assembly passed by a majority of “all the then members of the Assembly”. The process begins with a notice of at least 14 days.
• The SC’s decision aimed to ensure that the Speaker who disqualifies legislators must enjoy the confidence of the Assembly.
• However, this ruling could have unintended consequences as follows:
  • A “rebel MLA” can move a notice for removal, incapacitate the Speaker from acting, and hence leave rebel MLAs free to bring down the government without consequence.

The Tenth Schedule

• Background: The Tenth Schedule, popularly known as anti-defection law was introduced by the 52nd Amendment Act 1985 to prevent legislators from regularly switching party affiliations in the house and bringing down governments with them.
  • Its purpose was to check increasingly frequent floor-crossing; lured by money, ministerial berths, threats, or a combination of the three.
  • Hence, Tenth Schedule sought to put a stop to this by stipulating that if any legislator voted against the party whip, he or she would be disqualified from the house.
  • This empowered party leadership, weakened the prospect of intra-party dissent, but checking unprincipled floor-crossing.
• Working of Tenth Schedule: In the last few years, there have been innumerable instances of governments being “toppled” mid-term after a set of the ruling party or coalition’s own members turn against it.
  • This is a demonstration of power-politics and not an expression of intra-party dissent as evident from the well-documented rise of “resort-politics”.
  • In this, party leaders hold their “flock” more or less captive within expensive holiday resorts, so as to prevent the other side from getting at them.
• Ways to circumvent Tenth Schedule: The Tenth Schedule has been reduced to a nullity owing to the following tactics of the legislators:
  • Mass resignations instead of defections to force a fresh election
  • Partisan actions by State Governors (who are nominees of the central government) with respect to swearing-in ceremonies and the timing of floor tests
  • Partisan actions by Speakers in refusing to decide disqualification petitions, or acting in undue haste to do so.

Challenge Before the Court

• The role of the SC is crucial as disputes over government formation and government toppling invariably end up before the highest court.
• It is an equally challenging task due to the following reasons:
  • The Court has to adjudicate the actions of a number of constitutional functionaries like Governors, Speakers, legislative party leaders, elected representatives, many of whom, may have acted dubiously.
  • The Court also must maintain an institutional arm’s-length from the political actors, and adjudicate according to legalities, even as political actors in anti-defection cases do their best to undermine legality.

Conclusion

• Despite the fact that the Court’s intervention has been sought in almost all anti-defection cases, and SC delivering multiple substantive judgments on anti-defection in recent years, the toppling of governments has remained as frequent as ever.
• It also reflects how judicial interventions (if not carefully thought), can hasten the toppling of a government and contribute to turning the Tenth Schedule into a dead letter.
• The Maharashtra political controversy presents an interesting case study and the judgment will have consequences not merely for State politics in Maharashtra but far beyond as well as it raises certain fundamental issues about the working of India’s “anti-defection law”.