A five-judge bench of the Supreme Court of India is currently hearing a set of cases known as the “Maharashtra Political Disputes Cases”. These matters stemmed from the events of June last year, when the ruling Maha Vikas Aghadi (MVA) coalition (Shiv Sena, Nationalist Congress Party and Congress) lost power following an internal split in the Shiv Sena party. A faction led by Eknath Shinde then joined hands with the Bharatiya Janata Party (BJP) to form a new ruling coalition. Since then disputes between the various parties have continued, with the most recent development being the Election Commission of India’s (ECI) order that Eknath Shinde’s faction is entitled to the party’s name and symbol.
While questions have been raised about whether the position is now complete, and whether the Court could “turn back the clock” if it wanted to, the outcome of the decision in this case will not only affect state politics in Maharashtra. It will be taken, but it will be much more than that. , This is because the case raises some fundamental issues regarding the working of India’s “anti-defection law”.
Tenth Schedule, past and present
The anti-defection law was introduced in the Constitution in 1985 through the Tenth Schedule. Its purpose was to rapidly investigate frequent floor-crossings; Lured by money, ministerial posts, threats or a combination of the three, legislators were regularly changing party affiliations in the House (and toppling governments with them). The Tenth Schedule sought to put a stop to this by stipulating that if a legislator voted against the party whip, he would be disqualified from the House. While this empowered the party leadership against the legislative backbenches, and weakened the possibility of intra-party dissent, the Tenth Schedule saw this as an acceptable compromise in the interests of checking non-principled floor-crossing.
Fast forward 40 years to date, we find that the Tenth Schedule has worked at best. Over the years, there have been numerous examples of governments being “toppled” in the mid-term after the ruling party or coalition came out in opposition to a group of its members. That this is power-politics and no high-minded expression of dissent within the party is evident from the well-documented rise of “resort-politics”, where party leaders herd their “flock” more or less within expensive holiday resorts. Have been taken prisoner, so that the other side cannot dominate them.
In fact, politicians have adopted various tactics to nullify the anti-defection law. Recent examples include mass resignations (rather than defection) to force a new election, partisan action regarding the timing of swearing-in ceremonies and floor tests by state governors (who are central government nominees). , and equally prejudicial actions by Speakers (refusing to decide disqualification petitions, or acting in undue haste to do so). The result is that, in effect, the Tenth Schedule has been nullified: governments that do not have a clear majority are vulnerable to being “toppled” in this way at any point.
Court has a challenging task
This is where the role of the Supreme Court becomes important. Disputes about the formation of the government and the fall of the government always end up before the Supreme Court. It must be acknowledged at once that such cases put the Court in an unacceptable position: the Court has to decide the actions of a number of constitutional functionaries: Governors, Speakers, Legislature Party Leaders, Elected Representatives, many (if all) of whom No), to put it charitablely, has acted questionably. But the Court is not at liberty to presume dishonesty: it must maintain an institutional arm’s length from political actors, and decide according to legalities, even if political actors in anti-defection cases do their best to undermine legality. Are. It is a challenging task.
But it is a challenge that the Court has not always heeded with due respect. This is one of those situations where the pudding is proof: despite the fact that each of these cases has called for court intervention, and despite the fact that the Supreme Court has passed several concrete orders in recent years There are anti-defection decisions, the fall of governments happens again and again as usual. While one can (partially) put it down to shrewd politicians finding loopholes in Supreme Court rulings, just as they find loopholes in the Tenth Schedule, that is not all there is to the situation: some of these loopholes was easily observed at the time, but, unfortunately, was not addressed by the Court.
An example of this is the Court’s ruling in the Karnataka political dispute, which effectively sanctified resignation as a way around the anti-defection clause. But it is the present case (Maharashtra political controversy) which presents an interesting case study. One would remember that the crisis, so to speak, began when a group of Shiv Sena MLAs rebelled against Uddhav Thackeray, and soon took refuge (with allegations of state political interference) in a resort in Guwahati. Taken. The Deputy Speaker (there was no Speaker at that time) moved to disqualify the “rebels”, who in turn moved the Court, arguing that a motion of no confidence was pending against the Deputy Speaker, and therefore, before the Supreme Court. According to the judgment in Nabam Rebia, he was disqualified from adjudicating on the disqualification while it was pending.
The vacation bench of the Supreme Court stayed the hand of the deputy speaker, but in what can only be described as very peculiar orders, also directed a floor test. The result was that “rebel MLAs” (who may or may not have disqualified themselves) were able to vote in this floor test, and voted to bring down the government (in turn turning a volatile political situation and skewed the balance of power). The new government was swiftly sworn in (by the governor), and appointed its own president, thus effectively creating a loophole with respect to the pending disqualification petitions. Above all, the orders of the Supreme Court were “interim” in nature, and hence, no reasons were assigned.
in approach
These orders, the correctness of which is now being considered by a five-judge bench, though in the context of a changed political situation, which is itself a consequence of the same orders, show how judicial interference, if not carefully thought out If he goes, he can make haste. Toppling a government and contributing to turning the Tenth Schedule into a dead letter. If, for example, it is held that a Speaker cannot decide a disqualification petition under a notice to remove himself, and a floor test may be ordered in the interim (by the Governor or the court), then The consequences are clear: “rebel MLAs” can issue notices for removal, incapacitate the Speaker from taking action, and leave rebel MLAs free to topple the government without consequence.
How the Supreme Court will sort out or cut this Gordian knot in the Maharashtra political dispute is anybody’s guess. But ultimately, the Court will be subject to the judgment of history: the use of money and the threat and inducement of prosecution or immunity to actually “change” legislators is a truth plain for all eyes to see. The judgment of the court can act as a counterweight to political power, and can add a dose of constitutionalism to the politics of forming and toppling governments. But equally, the Court’s ruling could make it even easier to topple governments for those who have the means to do so. Only time will tell who will be out of the two.
Gautam Bhatia is a lawyer based in Delhi