On May 11, the Uddhav Thackeray-led Shiv Sena won a moral victory after the judgment of the Supreme Court in Subhash Desai v Principal Secretary, Governor of Maharashtra. The Supreme Court was tasked with deciding whether Eknath Shinde’s rebellion within the Shiv Sena amounted to defection under the Constitution’s Tenth Schedule. The Constitution Bench of the Supreme Court, comprising Chief Justice of India D Y Chandrachud and Justices M R Shah, Hima Kohli, Krishna Murari, and P S Narasimha, also addressed the question of whether the Speaker of a House may dismiss members, notwithstanding the fact that the members issued a removal notice for him.
In 2019, Thackeray led the Shiv Sena to form a post-poll alliance with the Nationalist Congress Party and the Indian National Congress. Later, in 2022, Shiv Sena legislator Eknath Shinde rebelled and formed a separate faction within the party and supported the Bharatiya Janata Party to become the chief minister.
The question of law the court faced was based upon the Tenth Schedule of the Constitution, the anti-defection law. The Tenth Schedule was inserted into the Constitution in 1985 as an anti-defection measure. It details the procedure for excluding parliamentarians from serving on a legislative body due to defection. A legislator is regarded as having defected if he either freely leaves his party or rejects the leadership during a vote. This implies that a legislator who abstains from voting or votes against the party whip on any issue risks losing his House seat. The Act applies to Parliament and the state legislatures. Procedures for disqualifying lawmakers who disagree with their party’s leadership or its position on a particular issue may be used. This Act provides two alternatives that can enable a group of MPs to abstain from voting without facing consequences: First, if one-third of the legislators in a political party resigned from it; second, if two-thirds of the legislators in a party merged with another party. These would not be seen as defections.
The anti-defection law was amended in 2003 to improve its effectiveness. This is because the provisions for exemption from disqualification in case of a split as provided in paragraph three of the Tenth Schedule, in particular, come under severe criticism on account of its destabilising effect on the government.
The anti-defection Act has also curbed speakers’ ability to maintain their non-partisan constitutional stance. The speakers are the last adjudicator in instances of defection, according to the legislation. It was thought that giving the speaker such powers would speed up the judgement process. During the debate over the measure, several members pointed out that including speakers in defection cases would put their office in needless conflict. In this matter of the Shiv Sena, the Court said the actions of the speaker in considering Bharat Gogawale as the leader of the Shiv Sena Legislative Party was illegal and the Court also stated that it was the responsibility of the speaker to act constitutionally and identify which whip was from the political party, as the legislative party is a subset of the political party.
Speakers frequently belong to the ruling coalition or political party. Looking at the speakers’ actions during defection trials over time has strengthened the notion that they act as party members rather than as impartial arbiters. When speakers excessively drag out defection proceedings, courts usually criticise their behaviour. In Manipur, a Congress MP was made a BJP minister and disqualification proceedings were before the speaker for three years, as the speaker was a member of the ruling party and never decided on the matter. The Supreme Court in this matter affirmed that the speaker should decide on matters of disqualification under the anti-defection law in three months.
Moreover, in Nabam Rebia vs Deputy Speaker (2017), the Supreme Court answered various concerns about the jurisdiction of speakers and governors in defection procedures. According to the Court, Article 163 of the Constitution requires the governor of a state to confer with the council of ministers. He may only exercise his judgement when required. The Court held that the governor is always bound by constitutional constraints and has limited discretion.
Uddhav Thackery and his faction of the Shiv Sena have raised a question regarding the Nabam Rebia judgment stating that it curbs the power of the speaker of the House and asked a seven-judge Constitution Bench to review the matter on merits which was accepted by the bench as a “tough constitutional question”. In Subhash Desai, the Court also said that the governor erred in taking the resolution of the Eknath Shinde faction to decide that Uddhav Thackery has lost the majority. The Court also said that the governor had no objective material to doubt the confidence of Uddhav Thackery. It concluded that the governor was right in calling Eknath Shinde to form the government with the BJP, as the BJP is the largest political party in the state. The SC said that even though the call for a floor test was illegal, it cannot establish the status quo, as Uddhav Thackery resigned from the position of chief minister.
At the time of polls, voters do not know whether the politicians they are voting for will switch parties. The anti-defection law has been unsuccessful in eliminating political defections, and has failed to provide a stable government to the voters. If political parties want their leaders to toe the party line, they must invest more in internal party democracy. The real question is whether the Constitution should assist political parties that are struggling to keep their members together. The anti-defection law continues to jeopardise the effective operation of our legislatures, making this a critical issue.
The Constitution Bench judgment paves the way for the disqualification of the Eknath Shinde-led Shiv Sena MLAs as per the anti-defection law and with one year left in assembly elections, there is going to be turmoil in Maharashtra politics.
The writers are Delhi-based legal researchers
