Shiv Sena MLA Disqualification Case: An Analysis of Anti-Defection Law

Context:

This editorial is based on the news “The Speaker’s court: On the Maharashtra Assembly Speaker’s ruling” which was published in The hindu. The Maharashtra Assembly Speaker has recently ruled that the faction led by Chief Minister Eknath Shinde was the “real Shiv Sena” when the rival groups emerged on June 21, 2022.

Maharashtra Speaker’s Ruling: Defiance, and Whip Controversy within Shiv Sena

• Speaker’s Verdict: According to the speaker, the former Chief Minister Uddhav Thackeray had no authority to remove Eknath Shinde from the party leadership.
• Rejected Petitions: The speaker dismissed petitions filed by the Uddhav Thackeray faction seeking the disqualification of members from the Shinde faction under the anti-defection.

• • The speaker also rejected petitions seeking the disqualification of Shinde faction members for defiance of the party whip.
  • Speaker also dismissed petitions filed by the Shinde faction and other members seeking the disqualification of members from the Uddhav faction, citing inconsistencies in the response to the service of the whip.
• 10th Schedule and Intra-Party Disputes: The speaker observed that the tenth schedule is not devised for intra-party disputes. It is not a deterrent to stifle the collective dissent of large members. 

Timeline of the Issue: Leadership Struggles, Legal Battles, and the Anti-Defection Dilemma in Maharashtra

• November 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.

• Shiv Sena Split: The Rebellion, Legal Maneuvers, and Political Turmoil in June 2022

• • Mr. Eknath Shinde, the leader of the Shiv Sena in the Legislative Assembly, along with several other Shiv Sena MLAs rebelled against the Shiv Sena.
  • The Thackeray group initiated disqualification proceedings against the rebel group for acting against party interests. 
    • Mr. Shinde moved the Supreme Court of India to dispute the disqualification proceedings. 
  • A Vacation Bench of the SC gave the rebel group 12 days of ‘breathing time’ to respond to the disqualification notice issued by the Deputy Speaker (Acting Speaker). 
    • The normal time to respond to the notice of disqualification is 7 days. 
  • The Shinde group approached Former Governor of Maharashtra Bhagat Singh Koshyari to express their withdrawal of support for the MVA alliance. The Governor directed that a floor test be conducted 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, but the Court refused to stay the floor test. CM Thackeray resigned soon after the SC’s Order without facing the floor test. 
• August 2022: A 3-judge Bench referred the case to a 5-judge Constitution Bench. 
• February 2023: The Electoral Commission of India (ECI) allotted the name Shiv Sena and the party symbol of bow and arrow to Shinde’s faction. 
• July 2023: Thackeray’s Shiv Sena approached the Supreme Court seeking direction from the Maharashtra Assembly Speaker to decide the pending disqualification petitions in a time-bound manner.
• December 2023: The Supreme Court granted the Maharashtra Assembly Speaker an extension of 10 days in deciding the disqualification petitions. 
• January 2024: Maharashtra Assembly Speaker declared that the faction led by Chief Minister Eknath Shinde was “the real political party” with an overwhelming majority of 37 of the 55 MLAs when rival factions emerged. 
  • While adjudicating the petitions, the speaker had to rely on three parameters: the Shiv Sena Constitution, its leadership structure, and the legislative majority.

This case raises legal questions about the effectiveness of the anti-defection law and the significance of speaker’s neutrality.

Legal Framework and Evolution of India’s Anti-Defection Law

• Defection: Under the 10th Schedule of the Constitution, it refers to the act of a legislator changing his/her political party after winning an election. 
• Punishment for Defection: Legislators who have defected from their party are disqualified from their seats under the 10th Schedule. 
• Constitution (52nd Amendment) Act, 1985: The Constitution of India was amended by the Constitution (52nd Amendment) Act, 1985 to include the 10th Schedule. 
  • In 1967, a Haryana-based MLA changed his party 3 times a day, giving birth to the popular phrase ‘Aaya Ram, Gaya Ram’. 
  • The anti-defection law was added to the Constitution in 1985 to prevent defections and eliminate potential political corruption. 

Disqualification on Ground of Defection: Power, and Judicial Scrutiny under India’s 10th Schedule

• Ground for Disqualification: The 10th Schedule provides two grounds for disqualification:
  • If the member voluntarily gives up their membership of a political party.
  • If a member abstains from voting or votes against their party’s directions without the party’s consent. 
• Power to Disqualify: The question of disqualification under the 10th Schedule is decided by the Chairman in the case of the legislative council and the Speaker, in the case of legislative assembly (and not by the governor).
• Disqualification under Judicial Review: In 1992, the Supreme Court in Kihoto Hollohan vs Zachillhu and Others ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

Evaluating Impartiality, Judicial Roles, and Loopholes in India’s Anti-Defection Legislation

• Speaker’s Role: The Speaker is usually a ruling party member, and there have been concerns about impartiality. The delay in making decisions or perceived bias can undermine the effectiveness of the law.
  • The Maharashtra Assembly Speaker’s ruling on the disqualification petitions filed by rival factions of the Shiv Sena demonstrates that the adjudicatory function under the anti-defection law should not be in the hands of Presiding Officers in the legislature.
• Court’s Intervention: In some cases, the existence of multiple authorities involved in the disqualification process can create confusion as the decision-making power is vested in the Speaker initially, but judicial intervention is also possible, leading to conflicting decisions.
  • For example, the Court does not intervene in ongoing proceedings of the House and waits for the Speaker’s decision, which it may later review.

• Loopholes in the Law: The Anti-Defection Law has certain loopholes that can be exploited. 

  • For instance, in March 2020, due to the resignation of more than 20 sitting MLAs of the Indian National Congress party from the state’s Legislative Assembly led to the fall of the government.  The MLAs later joined the BJP government after winning by-elections. Resignation is how to circumvent the Anti-defection law and attract prescribed punishments.
• Lengthy Process: Disqualification proceedings can be lengthy, and during this period, the legislator in question may continue to participate in the proceedings and vote, potentially influencing decisions. 

Way Forward: Proposals for Reforming India’s Anti-Defection Framework 

• Ensuring Speaker’s Neutrality: Ensuring that the Speaker is impartial and free from personal bias may involve a more transparent and consensus-based process for selecting the Speaker to enhance the perception of neutrality in disqualification proceedings.
  • Dinesh Goswami Committee (1990) suggested that the power of deciding the legal issue of disqualification should not be left to the Speaker or Chairman of the House but to the President or the Governor shall act on the advice of the Election Commission can impartially decide cases of alleged defection.
  • Further, an advocate, Arvind P Datar, suggested that the Speaker of the Legislative Assembly should not decide the disqualification proceedings for anti-defection. Instead, the matter should be decided by the dedicated judge/bench in the respective High Court assigned to hear election petitions.
• Review and Amend the Anti-Defection Law: Conduct a comprehensive review of the Anti-Defection Law to identify and rectify loopholes. Consider eliminating provisions that allow members to escape disqualification by voluntarily giving up party membership and forming a new party.
  • For instance, Dinesh Goswami Committee (1990) recommended limiting disqualification provisions to cases of voluntarily giving up membership of the political party, voting or abstention from voting by a member contrary to the party direction or whip only in respect of a motion of vote of confidence or a motion amounting to no-confidence or Money Bill or motion of vote of thanks to the President’s address.
• Strengthen Ethics: Empower and strengthen the existing Ethics Committees within legislative assemblies which can play a proactive role in scrutinizing cases of defection, thereby reducing the burden on the Speaker and expediting the process.
  • Further, barring defectors from holding public office and invalidating their votes in toppling governments, as recommended by the Constitution Review Commission (2002), may help reinforce these public ethics.
• Time-bound Proceedings: Introduce mechanisms to ensure timely resolution of disqualification proceedings. Set specific timelines for the Speaker to decide, and if not adhered to, allow for expedited judicial review to prevent undue delays.

Conclusion

Shiv Sena MLA Disqualification Case highlights challenges in the anti-defection law, emphasizing the need for impartiality, streamlined processes, and judicial reforms. Moving forward, implementing transparent Speaker selection, involving external bodies in disqualification decisions, and revisiting legislation can fortify democratic values and legislative integrity in India’s political landscape.

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