Autorickshaw driver Eknath Shinde took oath as Maharashtra Chief Minister after toppling the Uddhav Thackeray-led government because the Tenth Schedule introduced by the Congress government in 1985 has proved to be effete in preventing splitting of political parties like the Shiv Sena. The Election Commission cannot prevent Shinde and his 39 MLAs from staking his claim to be the “real” Shiv Sena after toppling the Maha Vikas Aghadi government proving the existing anti-defection law must be drastically overhauled. Uddhav never ever had the numbers.
Devendra Fadnavis, who could easily have returned as the chief minister with 106 MLAs, dramatically declared his BJP would support Shinde’s government to return to Balasaheb Thackeray’s Hindutva ideology allegedly jettisoned by Uddhav Thackeray. Fadnavis pointed out that Anil Deshmukh and Nawab Malik were jailed for money-laundering and the latter’s links with Dawood Ibrahim. Fadnavis appears to be a hardcore Hindutva protagonist because he announced he went to jail after joining others to raze the Babri Masjid at Ayodhya in 1992.
The 2003 amendment to the Tenth Schedule of the Constitution has facilitated rather than thwarted the toppling of governments which it sought to prevent. This proves the dictum that “The Shiv Sena was not born for power but power was born for the Shiv Sena,” as Sanjay Raut, described as the “Shakuni Mama” of Uddhav Thackeray, boasted even after being ousted. Shinde has proved that.
Uddhav Thackeray resigned on Wednesday with all his options closed minutes after the Supreme Court ordered a floor test in the Maharashtra legislative assembly. He lost his chief ministership, his government and may lose his political party to Shinde.
With just 16 MLAs backing him, Uddhav rendered the floor test ordered by the Supreme Court verdict infructuous. It was first Governor Bhagat Singh Koshyari and later the Supreme Court order which precipitated his resignation by refusing to give him a breather. The Supreme Court refused to accept that Governor Koshyari was partisan because he met Fadnavis before taking a decision to hold the floor test. Ironically, he had just recovered from Covid just as Uddhav Thackeray has recuperated from spinal surgery. The fact that over 100,000 are hit by Covid in Maharashtra appears not as important as government formation by those who should have prevented it from spreading.
Under the Constitution, it is the Governor’s prerogative to decide whether a government enjoys the trust of the legislature or not. And because Governor Koshyari met Fadnavis before calling for a trust vote, his action does not vitiate his decision to call for a trust vote on the floor of the House. The powers of the governors of states are enunciated between Articles 151 and 367 of the Constitution.
Article 163 declares that Governor Bhagat Singh Koshyari must act on the advice tendered to him by Uddhav Thackeray and his cabinet. This was Abhishek Manu Singhvi’s argument in the Supreme Court which provoked Justice Surya Kant to ask: “Why should we doubt the bona fides of the governor?”
Not many may know this, but all governors of states rank above the Chief Justice of India in the order of precedence, which shows sequential hierarchy of nominal importance but is not a legal document. The Supreme Court is slow to review decisions of the governors because, like judges, they are supposed to be above partisan politics although ironically they are appointed by political parties whose ideology they profess.
Governor Koshyari espouses Hindutva as he has always been an RSS veteran like President Ram Nath Kovind, Prime Minister Narendra Modi and Home Minister Amit Shah. By not striking down Governor Koshyari’s decision to hold a floor test, the Supreme Court has indirectly confirmed that his decision was tenable even under Article 163. Notwithstanding the argument that the Governor has to act on the advice of the council of ministers headed by the chief minister and not an opposition leader like Devendra Fadnavis, Governor Koshyari was free to use his discretion to call for a floor test.
The 1985 Anti Defection Act emerging from the 52nd Constitutional amendment was the result of 116 defecting law-makers out of 210 being rewarded with vital portfolios in the new governments they helped form after toppling previous governments. In the 1967 and 1971 elections, over 50 per cent of the MLAs and MPs were made ministers as quid pro quo for toppling their earlier governments.
The Tenth Schedule, known as the Anti-Defection Law, allowed splits in political parties like this, with 1/3rd MLAs allowed to rive the Shiv Sena for not adhering to Hindutva, and 2/3rd allowed to merge their factions with other political parties which will not take place. The late Prime Minister Rajiv Gandhi tried to give more teeth to the law by bringing in the 91st amendment to the Constitution but this too has not prevented splits of political parties such as the one which led to the ouster of the Uddhav Thackeray government.
In 2021, the former Mumbai police chief Parambir Singh levelled extortion charges against NCP minister Anil Deshmukh for allegedly extorting Rs 100 crores per month from liquor dens and restaurants in Mumbai, leading to Thackeray’s government being described as the “most corrupt” till date. Singh alleged that Uddhav Thackeray, NCP chief Sharad Pawar and his nephew, former deputy chief minister Ajit Pawar, took no action about his complaints that the NCP home minister Anil Deshmukh was extorting Rs 100 crore per month.
Singh alleged to the Enforcement Directorate that Uddhav and his son Adity,a with Anil Deshmukh, wanted renegade cop Sachin Waze reinstated, perhaps to do the dirty work which he was forced to carry out. Parambir Singh told the Enforcement Directorate that Anil Parab and Anil Deshmukh both received Rs 40 crores in bribes from ten DCPs in Mumbai for lucrative postings. Hounded and terrified, Parambir Singh will now get a reprieve from Devendra Fadnavis for helping to topple the Uddhav Thackeray government -- whether he did so voluntarily or not.
Another interesting legal question is whether the disqualification notices issued by the deputy speaker is legally valid when the renegade MLAs issued a vote of no-confidence to him, trying to oust him from the chair. These disqualification notices appear to be void right from the beginning because these MLAs did not attend the meeting convened by Uddhav Thackeray. But this whip is limited to the meetings called to transact official business of the legislature.
Uddhav Thackeray’s parting gift to the Hindutvawadis was to rename Aurangabad and Osmanabad as Sambhajinagar and Dharashiv respectively, whereas the Navi Mumbai airport was named after DV Patil. This was done to counter Eknath Shinde’s allegation that Uddhav Thackeray had abandoned Hindtuva. Though a minority government, this renaming is legally valid. When he said that whatever decisions he took while he was the chief minister were taken for the Marathi-speaking people and for Hindutva, he was promoting regionalism.
The law has to keep changing with changing political circumstances, and the Supreme Court has moulded the law to adapt to tenuous circumstances.
Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay high court.
