The crisis in the Shiv Sena — which is taking place across two states, Maharashtra and Guwahati — has now reached the doors of the Supreme Court.
After Maharashtra assembly deputy speaker Narhari Zirwal on Saturday began the process of disqualification of rebel legislators and issued summons to 16 MLAs, including Eknath Shinde to file a written reply by Monday evening, the breakaway gang has taken the matter into the legal zone, saying they would challenge the summons.
Reacting to the news, Deepak Kesarkar, an MLA belonging to the Shinde camp, said, “The decision taken by the deputy speaker will be challenged in court as we don’t accept it. As per the constitutional provisions, a group having two-thirds of the MLAs has all the right to choose its own leader. Shinde is leading the legislative party of Sena and no one has left the party.”
He further added that they would seek more time to reply to the notices. “We will respond to the notices. Knowing well that it is the weekend, we have been asked to respond within 48 hours. But keeping the principles of natural justice in mind we will seek an extension of a week. There is no urgency.”
The breakaways’ plea will be heard today by vacation bench of Justices Surya Kant and J B Pardiwala. It has been reported that former Solicitor General of India Harish Salve will represent the Shinde camp. Former Congress leader Kapil Sibal will appear for the Deputy Speaker, and Congress MP Abhishek Manu Singhvi for the Shiv Sena.
Here’s a closer look at what the anti-defection law states and whether the breakaway MLAs can, in fact, be disqualified.
What is the anti-defection law?
This legislation was passed and implemented in 1985 by the Rajiv Gandhi government via the 52nd constitutional amendment.
Its intent was to deter “the evil of political defections” by legislators motivated by the lure of office or other considerations and set out provisions for disqualification of elected members on the grounds of defection to another political party.
The 10th Schedule of the Parliament clarifies the rules and regulations around it.
In 2003, the Atal Bihari Vajpayee government made a change – requiring at least two-third of the party members to avoid facing anti-defection charges during a split.
The law states that a member of the House shall be disqualified if, after getting elected, s/he gives up the membership of the party or joins another political party. S/he will also be disqualified if s/he votes or abstains from voting in contradiction to the directions issued by the party.
It further says that the question of whether a legislator is disqualified because of defection has to be referred to the Speaker or the Chairman of the House, whose decision shall be final. The jurisdiction of the courts was completely barred as per this schedule.
However, in 1992 the Supreme Court held that judicial review, though limited, is permitted in cases where the Speaker has decided on a member’s disqualification on account of defection.
Thackeray camp moves to disqualify MLAs
On Saturday, the Shiv Sena sent the names of 16 MLAs to the Maharashtra Assembly deputy speaker for initiating action of disqualification against them.
Sena MP Arvind Sawant said, “Despite issuing a letter to them, none of them attended the party meeting on Wednesday evening here in Mumbai.”
“Now, only Chief Minister Uddhav Thackeray can decide about allowing their return to Sena, otherwise party doors are closed for them forever. They have betrayed the saffron flag,” he added.
Sena contests disqualification
Soon after, the disqualification action was taken, Eknath Shinde hit back at the Thackeray camp in a tweet, saying, “Who are you trying to scare? We know your make-up, and the law too!”
कोणाला घाबरवण्याचा प्रयत्न करताय?
तुमची बनवाबनवी आणि कायदा आम्हालाही कळतो!
घटनेच्या 10 व्या परिशिष्टाप्रमाणे (शेड्युल) व्हीप हा विधानसभा कामकाजासाठी लागतो, बैठकीसाठी नाही.
यासंदर्भात सुप्रीम कोर्टाचे असंख्य निकाल आहेत.#RealShivsainik
— Eknath Shinde - एकनाथ शिंदे (@mieknathshinde) June 23, 2022
The Shinde camp over the weekend has also been strengthened over the weekend as more leaders have joined him. It is believed there are 40 MLAs out of the Shiv Sena’s 55 strength owing allegiance to Eknath Shinde.
On Sunday, Cabinet Minister Uday Samant reached Guwahati to join the Eknath Shinde-led faction, making him the ninth minister of Shiv Sena to join the Eknath Shinde camp.
— ANI (@ANI) June 26, 2022
The other Cabinet ministers of Sena currently camping in Guwahati are Eknath Shinde, Gulabrao Patil, Sandipan Bhumre, Dada Bhuse, and Uday Samant.
Now, as all eyes turn towards the Supreme Court, it will be interesting to see how the law will be interpreted.
The Shiv Sena camp is adamant that the disqualification is legal until the legislators currently housed in a Guwahati five-star hotel merge with another party.
Supreme Court lawyer Devdutt Kamat, who is representing Thackeray's camp, said, “Until they merge into another political outfit, disqualification applies to them.”
The concept of 2-3rd (to surpass anti-defection law) apply only if there is a merger. Until the MLAs don't merge with another party, disqualification applies. Till today there's no merger, they have voluntarily given up membership: Adv Devdutta Kamat, Shiv Sena's Senior Counsel pic.twitter.com/lGRlhFazDq
— ANI (@ANI) June 26, 2022
He said, “There are several judgments in the Ravi Naik case, as well as the latest judgment in the Karnataka case, which favour our side. The rebel MLAs have claimed that a legislator can face action for acts only inside the House. However, the law and even the Supreme Court has held that if the MLA commits anti-party activities outside the House he is liable to be disqualified.”
Constitutional expert and former Advocate General of Maharashtra Shrihari Aney said the disqualification process would be “void” legally as not attending the meetings would not amount to quitting the party. Lack of attendance at meetings “cannot be taken into the realm of legislature’s action and the Speaker has no authority over the matter.
He added that the constitutional machinery has not been disrupted in the state of Maharashtra yet. If such a situation arises, the Governor of the state can get involved. Till then the deputy speakers will function as the court between the Shiv Sena group and the rebel MLAs from Guwahati.
With inputs from agencies