Maharashtra Politics Case: What lies ahead for Maharashtra Assembly Speaker after Supreme Court judgment

The judgment of the Supreme Court on the Maharashtra political crisis of 2022 has garnered mixed response with critics panning it for not making any changes on the ground despite the bench accepting the illegality in the actions of the then Governor which paved the way for the Shinde government to come to power. .However, one important aspect of the judgment which would be of practical relevance would be the direction by the Court to the speaker of the Maharashtra legislative assembly, Rahul Narwekar to decide the pending disqualification of members of legislative assembly belonging to Eknath Shinde and Uddhav Thackeray factions of Shiv Sena.The Constitution Bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha in its judgment on the Maharashtra politics case ruled that the Speaker of the Legislative Assembly is the appropriate constitutional authority to decide the disqualification petitions within a reasonable period.What is more important is that the apex court has also enlisted factors for Narwekar's consideration for deciding the disqualification petitions.Narwekar is presently in London and may commence hearing on the disqualification petitions in due course. .Disqualification proceedingsIn the present case, the allegation for seeking disqualification is that the members of both factions have not complied with the order of the Chief Whip of the party (persons responsible for organising party’s contribution to the parliamentary business).There are certain defences for the members to justify their actions in order to avoid disqualification which the Speaker is bound to consider. The tenth schedule of the Constitution also provides for safeguards from disqualification when a 'defection' is due to merger between parties and two-thirds of members of the legislature party has agreed to merger with another party.The other safeguard is when after abovementioned merger, members of the party do not agree to such merger and opt to function as a separate group. The factions can take advantage of these defences and in case the members are unable to establish any of the defences protecting them from disqualification, they would stand disqualified..Defence of 'split' no longer availableThere was another defence in paragraph 3 of the tenth schedule which protected defectors as long a one-third of the members of a political party formed a separate group as a result of a 'split' in the original party.This paragraph was deleted in 2003 and its impact was considered by the Supreme Court in its judgment on May 11. The question of impact of such deletion was important because both factions of Shiv Sena claimed to be the “real” Shiv Sena. In effect, this pointed to the existence of a split within the Shiv Sena Legislative Party, as per the Supreme Court. However the Court observed that the inevitable consequence of the deletion was that the ‘defence of a split’ could no longer be available to members who face disqualification proceedings.Consequently, none of the two factions will now be able to argue before Narwekar that they constitute the original political party as a defence against disqualification on the ground of defection. It is important to note, however, that the stand of the Shinde government has consistently been that the tenth schedule will not apply to them.In fact, they submitted to the Supreme Court that tenth schedule cannot be used to stifle intra-party dissent amongst members of the same political party; that intra-party dissent cannot be termed as defection. Narwekar in an interview stated that none of the members of the party had made any representation to him about the split. He claimed because of this, he could not have taken the split on record. .Determination of ‘real’ Shiv SenaThe Court nevertheless also called upon the speaker to determine the ‘real’ political party while adjudicating upon the disqualification proceedings. While doing so, the court also specified that the Speaker should not rely on the decision of the Election Commission of India on Shinde’s plea for allotment of Shiv Sena’s symbol. The Election Commission had ruled in favour of Shinde.“If the disqualification petitions are adjudicated based on the decision of the ECI in such cases, the decision of the ECI would have retrospective effect. This would be contrary to law,” the Supreme Court held. This determination, the Court clarified, was merely a prima facie determination and will not impact any other proceedings.To determine the real political party, the court asked the Speaker to consider the Constitution of the party which specifies the structure of the leadership of the party. In the event there was submission of two or more versions of the party Constitutions by rival groups, the Speaker has to consider the version which was submitted to the ECI before the rival factions emerged. This would be a little tricky in the present case, as there were in fact rival submissions made to the ECI.During the ECI proceedings, Shinde faction asked ECI to refer to the party Constitution submitted in 1999. Conversely, Thackeray faction pointed out that the Constitution was amended in 2018 which was also submitted with the ECI.The ECI in its order of February 17, however, recorded that it could not find the records of the 2018 amendment and proceeded to consider the 1999 version. However, the Supreme Court in its judgment urged the Speaker to not base his decision on a blind appreciation of which group possessed a majority in the legislative assembly and also consider the structure of leadership outside the legislative assembly. .Recognize one whip for the partyThe Supreme Court opined that the adjudication on disqualification would also depend on recognising one of the two whips between the two factions of the political party. The Constitution Bench opined that when there were two ‘whips’ of the two factions of a political party, the speaker was required to recognize only one whip.The apex court also clarified that the decision of the Speaker to recognize Bharat Gogavale as Chief Whip of Shiv Sena was illegal, because the speaker had failed to check whether Gogavale’s appointment as a whip was a decision of the political party and not merely the legislature party..Effectively, the speaker has his task cut out in deciding the disqualification petitions.How this eventually plays out could be the basis for more court battles as well. Maharashtra political drama might just not be over yet. .[Read Judgment]