The main fulcrum around which the judgment of the Maharashtra legislative assembly speaker, Rahul Narwekar, revolves is that the Constitution of the Shiv Sena is provided by the Election Commission of India and not the original one of the party.
Eknath Shinde Faction has majority of 37 MLAs
The Speaker said the Shinde faction had an overwhelming majority of 37 of 55 MLAs when rival factions emerged and that Shinde was validly appointed as the leader of the legislature party. Both factions had filed 34 cross-petitions against each other seeking the disqualification of 54 MLAs, with the Shinde faction claiming 67 per cent of the Shiv Sena MLAs in the assembly and 75 per cent of the party's MPs in the Lok Sabha.
The speaker of the Maharashtra assembly is on the same footing as a high court or Supreme Court judge while deciding disqualification petitions, which is why it was improper for the current speaker, Rahul Narwekar, to have met Shinde prior to delivering his judgment.
Rahul Narwekar meeting CM Shinde before the verdict lowers its credibility
As far as numbers go, there can be no doubt that the Shinde faction holds a majority. But Narwekar's decision to meet the chief minister just before delivering the verdict lowers the verdict's credibility.
The Supreme Court will definitely make observations on this issue while deciding the appeal filed by the UBT faction. Narwekar had got an extension till January 10 after the first deadline of December 31 lapsed.
The speaker's reasoning that the party chief, Uddhav Thackeray, had no power to remove Shinde and, consequently, the party whip, Sunil Prabhu, appointed by Thackeray, had no authority to call for a meeting on June 21, appears to be technically correct. Not attending the meeting called by Prabhu was an act of dissent within the party and was protected by the right to freedom of speech and expression, according to the judgment of Narwekar.
It is true that acts of dissent fall within the broad gamut of the right to freedom of speech and expression so that the high office of the speaker cannot be used to stifle dissent within the party. This dissent is a species of the right to freedom of expression, according to this judgment. But the right to free speech must be read in conjunction with the Tenth Schedule, which aims to disincentivise and penalise the sin of defection. Hence, the aim of the Tenth Schedule has been defeated by the speaker's ruling because those elected represent the voice of those citizens who elected them and have a higher obligation to the electorate than the ordinary citizen.
Rahul Narwekar's verdict needs to be re-evaluated
There are many loopholes in the judgment of the speaker, which need to be evaluated again. This is why the appeal filed by the Uddhav Thackeray faction in the Supreme Court may culminate in a modification of the speaker's judgment, even if it is not quashed outright.
