The hearing in the Supreme Court in the counter petitions moved last year by the rival factions of the Shiv Sena can now only be of academic interest. For, the split is an accomplished fact and cannot be undone by a court order. Nor can the judicial intervention supplant the on-going political process which crucially entails the Eknath Shinde and Uddhav Thackeray factions ultimately settling the issue by proving their strength at the ground level. Only time or elections, or maybe both, will tell as to who is the final victor. In any case, the apex court can clarify the legal position in regard to the power of the Speaker in case of a split in a political party as reflected in its legislative wing.
The facts of the case are straightforward. Last year when a number of Sena MLAs went underground, then Chief Minister and the Sena President Uddhav Thackeray removed Eknath Shinde as the leader of the Legislative Party. Shinde claimed the support of 40 MLAs, arguing that Thackeray was no longer the party’s leader. Thackeray then asked Deputy Speaker Narhari Zirwal to disqualify the rebel Sena MLAs led by Shinde. Before the Deputy Speaker could proceed against the rebels, a motion was moved by two independent MLAs for his removal which was promptly dismissed by him. He then gave the Shinde faction two days to respond to the disqualification notice. Shinde now challenged the Deputy Speaker’s notice on the grounds a) that he had no locus since a motion of his removal was pending, and b) that it was mandatory to give at least seven days to respond to the notice while they were given two. Meanwhile, a vacation bench of the apex court gave 12 days to Shinde to respond to the Deputy Speaker’s notice.
However, events in the Maha drama moved with greater speed from here on. Then Governor Bhagat Singh Koshiyari directed the Uddhav Thackeray government to conduct a floor test. It was now Thackeray’s turn to seek SC intervention. However the court refused to stay the floor test. As expected, within hours Thackeray resigned. Even as the Shinde faction and the BJP teamed up to form the government the counter petitions in the SC were yet to be disposed of. At a later hearing, the rival parties were asked to frame the issues. In September last year a five-member constitutional bench headed by the present Chief Justice D Y Chandrachud was constituted to hear the counter petitions. The resumed hearing in the case on Tuesday saw the advocate for the Uddhav faction arguing against the position he had taken in what is known as the Nabam Rebia case. In that case, it was successfully argued that once a notice for the removal of the Speaker is given he is barred from adjudicating under the anti-defection law. In that case, by a controversial order the SC had restored the Congress government in Arunachal Pradesh.
On Tuesday, the Thackeray lawyers argued that disqualifying the Speaker automatically on receipt of notice for his removal was open to grave misuse. Political morality was summoned to amplify the argument that the Speaker always supports the ruling party. Also, lacking trust in the Speaker’s impartiality, it was suggested that the High Court or the Supreme Court should step in to adjudicate the legality or otherwise of a split in a legislature wing of a political party at short notice. Of course, this would tend to drag the higher judiciary further into partisan political matters and is better avoided being institutionalised as a matter of course. As it is, a feeling is growing in the country that the courts tend too easily to resolve all manner of disputes, some which are clearly in the domain of either the legislature or the political executive. Today the court hears the lawyer of Thackeray openly displaying lack of faith in the independence of the Speaker while adjudicating under the defection law. If the High Courts or the Supreme Court were to become the first port of call for resolving disputes arising under the anti-defection law, will it not needlessly open the court to avoidable charges of partiality from the losing group? Political morality will come with time. It cannot be judicially administered.
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