Open Access Research Article
ANTI-DEFECTION: SHIV SENA CASE
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Article Details
ANTI-DEFECTION:
SHIV SENA CASE
AUTHORED BY - MAHI
DHAKAD
Schedule 10
of the Constitution
52nd Constitutional Amendment Act, 1985 added Schedule
10 in the Constitution which talks about Anti Defection. It provides Grounds
for Disqualification, its exception and procedure.
History
of Anti-defection Law in India
In 1967, an MLA, Gaya Lal, changed his party 3 times in a single
day. A saying became famous
at that time: “Aaya Ram Gaya
Ram”. Due to such acts, corruption was encouraged among members. Thus, Anti-Defection Law became necessary.
Grounds Of Disqualification
?
If an elected member willingly gives up his membership in a political
party.
?
If an elected member
votes in the house against
any instructions given
by his/her political party or abstains
from voting.
?
If any independently elected
member joins any political party.
?
If any nominee joins a political
party after a period of 6 months.
Exceptions
?
If
a person’s original party combines with another(applicable only if more than ?
of the party’s members have approved
the merger), they are not automatically banned
from running for office.
?
Any person
elected as chairman
or speaker can resign from his party and rejoins
the party if he demits
that post.
Procedure
?
Defection
cases can be only taken if the presiding officer of a house receives a
complaint. The Presiding Officer of a house is empowered to make rules to give effect to provisions of the 10th schedule.
All rules must be placed before the house for 30 days.
?
Before taking
the final decision, the officer must give the member a chance to submit his explanation.
Presiding Officer can also refer the matter
to the committee of privileges for inquiry.
The decision
can be questioned in a court of law, as while deciding
a question under Schedule 10th the presiding officer acts as a tribunal.
Shiv Sena Case
Facts:
Uddhav
Thackeray, a leader of the Shiv Sena and the Maha Vikas Aghadi (MVA), was sworn
in as Maharashtra's chief
minister on November
28, 2019. The Shiv Sena,
Nationalist Congress Party,
and Indian National
Congress have joined forces to form MVA.
According to a number of Shiv Sena MLAs led by Eknath
Shinde, Uddhav Thackeray's choice to associate himself with Congress and the
Nationalist Congress Party was contrary to the party's Hindutva doctrine. This rebellion occurred
in June 2022.
On
June 25, 2022, the Thackeray group delivered a notice for acting against party
interests and began disqualification procedures against the dissident
group. The notification was handed to the rebel group with 48 hours
to reply.
On June 26th, 2022, Mr Shinde filed a petition
with the Supreme
Court of India disputing the actions taken to remove
him and the other "rebel" MLAs from office.
On June 27, 2022, the highest court extended the deadline for filing answers
to the disqualification letters, providing
interim respite to Shinde.
Later, on June 29, it approved the governor's request for a floor test.
Uddhav Thackeray resigned as chief minister
because the Maha Vikas Aghadi
administration lacked the necessary support.
With the support
of the BJP, Shinde took the oath of office
as chief minister.
The Thackeray camp subsequently petitioned the Supreme Court.
According to Bar and Bench,
one of them contested the governor of Maharashtra's summons to the
legislature. It has also contested the speaker's
decision to remove Ajay Chaudhary and Sunil Prabhu from their positions as the
leader and chief whip of the Shiv Sena Legislative Party.
Issues:
1. Can a court rule that a member is
presumed to be disqualified by virtue of his or her acts without a decision
by the Speaker? Does the Speaker's notice
of removal prevent
him from continuing the disqualification process
under Schedule X of the Indian Constitution?
2.
What authority does the Speaker
have to choose
the whip and leader of the parliamentary party's house?
3.
Does the governor have the authority
to invite someone
to form the government and is this decision subject
to judicial review?
4.
How far does the Election Commission of India's authority extend in terms
of preventing an ex-parte split within a party?
Arguments:
By
Uddhav Thakrey’s Faction
The Thackeray team maintained that the June 27 and June 29 court rulings
had led to the election of the new administration. In accordance with its ruling
from June 27, the Apex Court awarded
Eknath Shinde temporary relief
by extending the deadline for submitting his reply to the disqualification letters.
Later, on June 29, the court approved the governor's request for a floor
test. The Thackeray faction requested the restoration of the status
quo ante as of June 27, 2022, arguing that if there was one initial error in a court order, all subsequent
consequences would be nullified. This would put the parties back in the same situation as they would have been had it not been for the court's interim
orders.
Additionally, it was asserted that ECI had noted a rift inside the party.
The only defence against disqualification under
the Tenth Schedule, which excluded split as a defence, was a merger
with another party.
It was suggested that such appointments should be made by the Party Chief rather than the Speaker.
The Speaker has demonstrated clear prejudice in making these nominations.
Additionally, it was contended that the Election
Commission, rather than the Governor, was the entity
with the legal authority to recognise and legitimise the conduct of renegade MLAs of political parties.
By
Eknath Shinde’s Faction
The Shinde side asserted that once the Ministry's help ended, the
governor was left with little alternative
except to conduct a floor test. Given that a sizable number of MLAs had written
to him to inform him that the Ministry no longer had a majority, the Governor was correct to ask for a floor
test.
As long as the Shinde side claimed to represent the authentic Shiv Sena,
which the Indian Election Commission had formally recognised, there were no conversations about
a "split" within
the party, according
to them.
Because Uddhav Thackeray never underwent the floor test and left office before
the same thing could happen, it was contended that the
"floor test"—used by the Thackeray side to argue that the new administration would not have been elected
but for the court orders—could not apply in the current situation.
Additionally, it was asserted that disagreement within
parties was not only lawful but also a necessary component of democracy and the constitutional system.
The Shinde group also argued that politicians, not the courts, should have
jurisdiction over the situation. It
was contended that the Speaker could not identify which group was the actual
political party while using his or her authority under
the tenth schedule
since the Election
Commission should be the one to make such a determination.
Judgement:
The
bench issued a warning, stating that the governor could not have intervened in
the intra-party conflict by ordering the floor test,
especially in the lack of any "objective material" to undermine the House's inherent faith
in a democratically elected administration. It said that letters from several MLAs (or even the then-Leader of the
Opposition in this case) asking the Chief Minister to demonstrate his majority do not when considered individually,
amount to a valid cause to call for a floor test.
The MP Political Crisis case, which ruled that the choice to call for a
floor test should be based on objective information and reasons that are pertinent
and relevant to the exercise
of discretion and not unrelated
to it, was often cited
by the Court.
The Governor
should not use their discretionary authority to topple
or undermine democratically elected governments, the Court underscored.
Because he lacked
evidence supporting his assertion that Mr Thackeray had lost the confidence of the House, the Governor was not justified in
asking Mr Thackeray to demonstrate his majority on the House floor.
The Governor was right to ask Mr Shinde to form the government, but the status quo ante cannot be returned because
Mr Thackeray did not submit
to the floor test and resigned his resignation.
According to the ruling
in Shrimanth Balasaheb
Patil, activities or occurrences that occur after the commission of the behaviour forbidden by
the Tenth Schedule do not have an exonerating impact since disqualification is based on the date on which the act of defection
occurs.
In other words, future behaviours or occurrences do not absolve the actor
of the repercussions that result from their actions.
This is in accordance with the ruling
in Rajendra Singh
Rana (previous). The nomination of Mr Shinde
is thus not prohibited by Article 164(1B)
of the Constitution.
Sources:
Article Information
ANTI-DEFECTION: SHIV SENA CASE
Authors: MAHI DHAKAD
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/18
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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