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Introduction:

In an era where political complexities dominate the discourse, the recent landmark verdict on the contentious Shivsena case in Supreme Court has sent shockwaves through the nation. The ruling, handed down by the judiciary, carries far-reaching implications for the political landscape, raising questions about power dynamics and democratic principles. This comprehensive analysis dives deep into the intricacies of the verdict, shedding light on the untold insights that could reshape the course of Indian politics. Brace yourselves for an in-depth exploration that will leave you enlightened and craving for more.

Unravelling the Historical Context; Disqualification Looms for Shinde, Uddhav’s Return as CM Denied

In a jaw-dropping ruling, the Supreme Court Constitution Bench has dropped a bombshell on Maharashtra’s political landscape. The bench unanimously declared that Governor Koshyari’s calls for a trust vote lacked crucial ‘objective material’ proving a loss of support for Uddhav Thackeray’s government. The Court’s scathing verdict has opened the floodgates to a potential downfall for Shinde.

While Governor Koshyari’s moves to invite Shinde to form the new government were deemed right, Uddhav Thackeray’s dreams of regaining power have been shattered. The Court’s ruling clarifies that Thackeray’s resignation before the floor test will keep the Shinde government in power.

Governor’s Blunder Exposed!

According to the Court’s observations, the Governor acted without concrete evidence when casting doubt on the incumbent government’s confidence. A floor test cannot be weaponized to settle internal party disputes, a fact the Governor failed to comprehend. The repercussions of this glaring mistake are immense, shaking the foundations of the political arena.

Government Formation Justified!

A landmark decision in the Shivsena case in Supreme Court has validated Governor Koshyari’s inviting Mr Shinde to form the new government, considering the circumstances surrounding Mr Thackeray’s resignation. After Mr Thackeray’s resignation on June 29, 2022, the position of Chief Minister in Maharashtra became vacant. The party that had secured the highest number of candidates in the State Assembly demonstrated their support for Mr Shinde, leading to the Governor’s decision to invite him. Additionally, the Court rejected any notion of invalidating Speaker Rahul Narwekar’s election solely because some participating MLAs faced disqualification proceedings.

Speaker’s Court to decide now

The responsibility of deciding the disqualification petitions pending before the Court did not grant Speaker Rahul Narwekar to the Thackeray faction, as their plea was not accepted. Chief Justice Chandrachud, who authored the unanimous verdict on behalf of the five-judge bench, emphasized that unless there are exceptional circumstances, it is the Speaker who holds the authority to adjudicate petitions for disqualification under the Tenth Schedule (anti-defection law). The Chief Justice acknowledged the Speaker’s embodiment of propriety and impartiality, deeming it inappropriate to express distrust in the Speaker’s office. However, the bench also recognized that any decisions made by the Speaker while acting as a tribunal are still subject to judicial review.

Defection, not a Split

The Shivsena case in Supreme Court provided a detailed framework for the Speaker to consider when adjudicating the disqualification petitions. Firstly, the Court ruled that the Shinde group’s argument of a mere “split” from the Shiv Sena party, rather than a defection, could not be accepted by the Speaker as a valid defence. This was due to the amendment made by the Constitution (Ninety-first Amendment) Act in 2003, which removed Paragraph 3 from the Tenth Schedule, rendering the defence of a “split” no longer applicable to the Shinde group.

Clarifying the Selection of Whips: Determining the Appropriate Whip to Recognize

In a significant ruling, the Court emphasized that in cases where multiple Whips are appointed by different factions within a political party, the Speaker must consider which Whip represents the party. The Court further declared certain decisions by Mr Narwekar, a prominent figure within the Shinde group, as “illegal.” Specifically, the Court found Mr Narwekar’s recognition of Bharat Gogawale as the Chief Whip of Shiv Sena and Mr Shinde as the “Leader of the Shiv Sena Legislative Party” to be unlawful. Consequently, the Court nullified Mr Narwekar’s decision made on July 3, 2022, which appointed Mr Gogawale as Chief Whip in place of Sunil Prabhu and Mr Shinde as Leader instead of Ajay Choudhari from the Thackeray faction.

The Court’s judgment highlighted that the Speaker’s recognition of a particular faction within the Shiv Sena Legislative Party (SSLP) without determining whether they represented the collective will of the political party was in direct violation of the provisions outlined in the Tenth Schedule. According to the Court, the Speaker must acknowledge the Whip and the Leader duly authorized by the political party, considering the provisions stated in the party’s constitution. The Speaker’s actions were deemed contrary to the established regulations by disregarding these principles.

Speaker’s Office & ECI Office are Independent Forums Operating on Separate Parameters

The bench expressed its disapproval of Mr Narwekar’s decision to suspend the disqualification proceedings “in anticipation” of the Election Commission of India’s (ECI) verdict on the rightful political party of the Shiv Sena, considering it unreliable. The Shivsena case in Supreme Court emphasized that relying on the ECI’s decision for adjudicating disqualification petitions would be problematic as it would have a retrospective effect, which goes against the law.

The Court clarified that the ECI’s recognition of the Shinde faction as the authentic Shiv Sena would only take effect “prospectively,” meaning it would come into force after the Speaker decides on the pending disqualification petitions. Should the Speaker disqualify members of the faction awarded the party symbol, the remaining group members in the House would need to follow the prescribed procedure outlined in the Symbols Order and any other relevant laws to obtain a fresh symbol for their group.

Additionally, the Court decided to refer the question of whether a Speaker facing removal can decide disqualification petitions against MLAs under the Tenth Schedule to a larger Bench comprising seven judges. This matter of procedural importance will be further deliberated upon for a comprehensive resolution.

Bench laid down the framework for Speaker to decide

According to the Bench, the defence invoked by the Shinde group must align with the current provisions of the Tenth Schedule. The Court emphasized that this referred explicitly to the 2018 party constitution, which witnessed the election of Mr. Thackeray as the party president. Secondly, the Court instructed the Speaker to consider the version of the party constitution submitted to the Election Commission of India with the mutual consent of both factions. By examining this particular version of the party constitution, the Speaker could determine which faction should be recognized as the genuine representation of the Shiv Sena. Chief Justice Chandrachud articulated that the evaluation should consider the power configuration within the Assembly and the intricate fabric of leadership outside its confines.

Opinion on Shivsena Case in Supreme Court

It is obvious, as per the explanation to paragraph 2 of the 10th schedule, that the original political party is the party that set up the candidates for election.

Explanation of Paragraph 2 of the 10th Schedule: ” Furthermore, it has been clarified that an individual is considered affiliated with a political party if they had been a candidate representing that party prior to the elections for that particular position.“

Therefore the bench did not have to provide a framework for the Speaker to focus on the party constitution and which faction to recognize, as the Shivsena case in the Supreme Court highlights that the original version of paragraph 3 of the Tenth Schedule stated that disqualification would not be applicable in the event of a political party experiencing a division, provided that at least one-third of the members from the original party joined the newly formed faction.

However, the 91st Amendment Act 2003 deleted Paragraph 3, leaving no scope for deliberation on any split or faction. Therefore, this kind of judicial overreach, especially regarding the recognition of faction, was not warranted given the clear, unambiguous provision of explanation to paragraph 2 of the 10th schedule of the Indian Constitution as it stands today.

Time Limit within which Speaker must decide

Party affiliations often hinder the Speakers, impeding their ability to make timely decisions, particularly when the accused member switches to a party aligned with the Speaker’s allegiance. This renders the 10th schedule completely ineffectual. In the case of S.A. Sampath Kumar v. Kale Yadaiah (2016), a Constitutional Bench was called upon to determine whether Courts could compel the Speakers to reach decisions on disqualification cases within a specified timeframe.

However, in the 2020 case, Justice Nariman asserted that such a reference was unnecessary and proceeded to establish a three-month time limit, emphasizing the expectation for Speakers to endeavour to resolve cases within a “reasonable period.” Therefore, if the Speaker doesn’t decide on the disqualification cases within three months, the latest legal position option of judicial intervention by the top Court may be a definite option.