The latest Supreme Court verdict comes nearly after eleven months post the political imbroglio in the State Legislature of Maharashtra. A new government was formed in Maharashtra by a coalition consisting of a faction of the Shiv Sena and the Bharatiya Janata Party with Eknath Shinde of the Shiv Sena at the helm of this second government.
This political coup of the BJP over the existing MVA coalition government of Shiv Sena, Nationalist Congress Party and the Indian National Congress was a shining drama (though unworthy) of money, muscle and de-constitutionalised politics.
The apex court castigates the two constitutional authorities, namely the Speaker of the Maharashtra Assembly and the Governor of Maharashtra for unjustified and illegal recognitions and directions. However, the verdict offers no reliefs to the petitioners, imposes no penalties and causes no damage to the Eknath Shinde government.
Will this 141-page judgement penalise and act as a deterrent against the constitutional sin of defections? Are there any directions offering clarity on the ‘merger’ of a political party? Does the verdict assure that the Office of the Speaker acting as a tribunal would decide on disqualification petitions within a reasonable time?
Normlessness
The verdict could better be described as exposing the normlessness in today’s parliamentary politics and abuse of constitutional positions by the incumbent in office. To this extent, the apex court does not say anything new then what is already in public knowledge. The Supreme Court bangs the former Governor B S Koshyari for directing the then Chief Minister Uddhav Thackeray to seek the vote of confidence on the floor of the House stating that there was no “objective material” before the Governor to conclude that the MVA government had lost majority support. At the same time, the same apex court itself had refused to stay the convening of the Assembly only to seek the trust vote.
There should be no doubt that Governor Koshyari was on board when the BJP attempted the political game of engineering split in the Shiv Sena. This is not the first time that this rooted Sewak is abusing the constitutional position.
The Supreme Court has also termed the recognition given to the Chief Whip of the Shinde-Sena faction and to Eknath Shinde as the leader of the Legislature party by the Speaker as illegal. The contention here is that these appointments should have the approval of the political party. The legislature party or the majority MLAs in legislature party cannot determine the Chief Whip and the legislative party leader is a clear direction of the apex court.
As expected, the Supreme Court has declined to issue any directions to the government. It is loathsome and detestable that the Chief Minister of Maharashtra reads this as the stamp of certification by the apex court to the formation of government. The court has decided to adopt the “Hands-off” approach to keep away from the political games of the Sena factions.
Speaker first
The Supreme Court has once again stood firm on the principle that the office of the Speaker should be the tribunal at the first instance to adjudicate on disqualification petitions. This is despite the fact that Speakers have been almost sleeping over these petitions.
The disqualification petition of 16 MLAs is pending before the Maharashtra Speaker. Petitions of similar nature are also pending before the Goa Speaker.
The Office of the Speaker does not have to entertain any other legal proceedings other than those under the tenth schedule. Higher judiciary has laid down that the “reasonable time” for finally disposing such petitions by the Speaker is three months from the date of filing such matters. We have seen in the past that such petitions are allowed to gather dust for over three years in the Speaker’s Secretariat. In the Supreme Court itself, there is a petition pending in respect of disqualification of 10 MLAs of the Goa assembly whose term expired in 2022.
It is a unique feature of BJP ruled states that Speakers do not recluse themselves from active party work during their tenure. They take pride in their partisan working and yet they expect that people should repose confidence in their impartiality as Speaker. The judiciary has held the Speaker in the highest esteem describing the Speaker as an embodiment of propriety and impartiality. To quote from a judgement—“The robes of the Speaker do change and elevate the man inside”.
The courts cannot express distrust in the office of the Speaker. But, the Speaker does everything to play with the trust reposed and has never shown any respect to dispose the disqualification petitions in “reasonable time”. Hence, nothing substantially will change because of the fresh directions from the apex court in the Maharashtra case.
Political party v/s Legislature party
What could be the new take away is the strong observation that a political party and the legislature party are distinguishable concepts. The apex court has clearly stated that the political party and the legislature party cannot be conflated or blended together. They are not intertwined and knotted. To elaborate further, the “Symbols Order” of the ECI recognises a political party and not the legislature party. A political party fields the candidates for elections, the legislature party cannot set up a person as a candidate. A political party cannot be read as the legislature party.
In Maharashtra, the Shinde-Sena asserts as the real Sena indicating a split in the party. But, the defence of split is deleted from the tenth schedule and hence cannot be a defence against disqualification. In Goa, the Congress MLAs claim merger into BJP. But, the legislature party or the major faction of the legislature party cannot be considered to be the political party. This could mean that the legislature party, solely, cannot claim a valid merger. This would be significant material for the Goa Disqualifications.
(The writer is an
educationist and
political commentator)
