MUMBAI: Shiv Sena heavyweight Eknath Shinde on June 21 last year dropped a bombshell by initiating a coup against the parent party led by Uddhav Thackeray, who was also the chief minister of the then ruling three-party Maha Vikas Aghadi (MVA). Shinde first herded 12 party MLAs to Surat via Thane-Palghar and then flew to Guwahati, with the logistical support of the BJP, where 34 more Sena MLAs joined him. They claimed Uddhav had lost their support as he had betrayed the Sena’s core ideology of Hindutva. After trying to mollify them, the Uddhav group initiated disqualification proceedings against 16 rebel MLAs, including Shinde, and sent them show-cause notices on June 25.
The next day, the Shinde group moved the Supreme Court against the disqualification notices arguing that Deputy Speaker Narhari Zirwal - who was officiating as the Speaker - had no right to hear the petitions. The post of Speaker had been vacant since February 2021. The Shinde faction also invoked the principle of natural justice to claim that the eight-day notice given by Zirwal for their response was not enough. On June 27, a vacation bench of the Supreme Court comprising justices Surya Kant and J B Pardiwala issued an unusual order giving 12 days of breathing time to respond to the June 25 notice. The normal period for replying to a disqualification notice is seven days. The Shinde group then issued a notice for the Deputy Speaker’s removal from his post.
Parallelly, the Shinde camp informed Governor Bhagat Singh Koshyari of their withdrawal of support to the MVA and the latter ordered a floor test on June 30. The Uddhav faction challenged the floor test before the SC, citing the pending disqualification proceedings. But the court on June 29 refused to stay the floor test, stating its result would anyway be subject to the final outcome of its hearings. Sensing he would lose by a wide margin, Uddhav resigned as chief minister without facing the trust vote. Shinde was sworn in as the new chief minister while BJP’s Devendra Fadnavis took oath as his deputy the following day.
On August 22, a three-judge bench referred the matter to a five-judge bench. The Constitution bench led by Chief Justice of India D Y Chandrachud began hearing the case on February 14.
Shinde’s coup
The Shinde group staked its claim over the party name arguing they were the real Shiv Sena because they had the support of most of its lawmakers in the Assembly and in Parliament and moved the Election Commission of India (ECI). Since Uddhav was way short of lawmakers, he showed his clout to the ECI by collecting affidavits of support from the party's cadre. He submitted over 8.5 lakh membership documents and 2.62 lakh affidavits of party office bearers, to demonstrate his grip over the Sena. However, the ECI on February 17, 2023 allotted the name Shiv Sena and the party symbol of bow and arrow to the Shinde faction.
Tenth Schedule
In his disqualification petition, Uddhav cited the Tenth Schedule of the Constitution that serves as a deterrent to party hoppers. In 1967, Gaya Lal, an MLA in Haryana, changed his party thrice in a day - from Congress to Janata Party, going back to the Congress but later again defecting to the Janata Party - all within the space of nine hours. This prompted Atal Bihari Vajpayee to coin the famous phrase, ‘Aaya Ram, Gaya Ram’ for turncoats who destabilise governments. The anti-defection law was added to the Constitution in 1985 to prevent defections and eliminate political corruption. The law defines a defector as one who voluntarily leaves his party or disobeys the leadership’s directions on a vote in the House of Commons. Such legislators stand disqualified under the Tenth Schedule.
Uddhav faction's position
The Uddhav Sena claimed that the Shinde camp’s actions—disregard for the party Whip, the appointment of a new Deputy Speaker, the call for a floor test, and claims of the rebel majority— were all acts of defection. They argued that the floor test called by the Governor was illegal and that by doing so, he recognised a split in the party. They also sought reconsideration of the SC verdict in the Nabam Rebia case (2016), which held that a Speaker could not initiate disqualification proceedings against members of the House if there is a pending notice for his own removal. The Uddhav faction argued that the 2016 verdict gave those facing defection an easy tool to halt proceedings by merely filing a notice for the Speaker’s axing.
As for the Shinde faction, it argued that they were the real Sena and not defectors. In matters relating to disqualification, it was the Speaker and not the SC that had the authority to make a decision, they contended. They saw the Governor's decision to order a floor test as kosher as he had enough reasons to believe Uddhav had lost the majority in the House. Unsurprisingly, they quoted the Nabam Rebia verdict chapter and verse to say the Speaker cannot conduct disqualification proceedings if a petition to sack him/her is pending.
Supreme Court order
The unanimous 141-page judgment of the Constitution bench said the then Governor's decision to seek a trust vote, which led to the resignation of Uddhav, was illegal. But the court also said it could not reinstate Uddhav as CM because he had resigned instead of facing the trust vote. The court said it cannot ordinarily adjudicate petitions for disqualification under the Tenth Schedule, adding the Speaker must take the call within a reasonable period.
On the right to appoint a Whip, the SC said: “To hold that it is the legislature party which appoints the Whip would be to sever the figurative umbilical cord which connects a member of the House to the political party. It would mean that legislators could rely on the political party for the purpose of setting them up for election, that their campaign would be based on the strengths (and weaknesses) of the political party and its promises and policies, that they could appeal to the voters on the basis of their affiliation with the party, but that they can later disconnect themselves entirely from that very party and be able to function as a group of MLAs which no longer owes even a hint of allegiance to the political party.” Both the Whip and the Leader of the party in the House can only be appointed by the political party, the SC ruled.
Role of Speaker
As for the Whip issued by Uddhav faction MLA Sunil Prabhu in his capacity as Chief Whip of the Shiv Sena, to vote against the rebels, experts opined that Speaker Rahul Narwekar had no choice but to disqualify the 16 MLAs who violated the fiat. P D T Achary, former Secretary-General of the Lok Sabha, said, “The Speaker has no other option except to disqualify the MLAs from the Shinde faction because the Supreme Court said that the Whip can be issued by the political party, i.e. party headed by Uddhav. The Shinde faction defied the Whip, so naturally they are liable to be disqualified.” For his part, Narwekar welcomed the SC decision but sat on it for over a year. The Uddhav faction on July 4 this year moved the SC seeking expeditious disposal of the disqualification pleas by the Speaker.
Bench press
The Supreme Court on September 18 directed the Speaker to spell out the timeline within a week for adjudication of the disqualification petitions. Referring to its May 11, 2022 direction that the matter be decided within a reasonable time, it said the Speaker has to honour the dignity of the Supreme Court and abide by its verdict. Since the Speaker is a tribunal under the Tenth Schedule, it makes him amenable to the court's jurisdiction, the bench added.
Speaker finally acts
After the Supreme Court whiplash, Speaker Narwekar flew to Delhi to consult legal experts and then served notices on all 54 MLAs from both factions to explain their position. The question then was whether all disqualification petitions should be clubbed or heard individually. Uddhav’s Sena demanded clubbing because all petitions are of similar nature and hearing one by one would mean wasting time while the Shinde faction insisted on hearing them one by one.
The timeline
The Speaker set October 13 as the date by which both parties would file additional documents and citations over clubbing of hearings. On November 6, both parties will suggest which issues should be taken up for the clubbing hearing. The process of filing evidence, documents, affidavits, pleas, verification and arguments would go on till November 23. There are 38 petitions against 54 Sena MLAs. Since Narwekar is Shinde's man, he can be expected to settle for individual hearings to drag the process on. Cross-examination will begin on November 23 and shall be held twice a week. It is expected to go on for months. Narwekar could deliver his verdict by December-end or the first half of January, if he does not add a new twist to buy more time. The clock for Chief Minister Shinde is ticking. And Ajit Pawar is waiting impatiently to step into his shoes.