How The Tenth Schedule Meant All For Uddhav Thackeray’s Shiv Sena

Disqualification of members of a House on the grounds of defection are detailed in the Tenth Schedule of the Constitution, referred to as the ‘anti-defection law’.

Uddhav Thackeray at Sena Bhavan
Maharashtra CM Uddhav Thackeray arrives at Sena Bhavan to attend Shiv Sena’s meeting, in Mumbai, Saturday, June 25, 2022. (PTI Photo)

New Delhi: With the Supreme Court allowing floor test in Maharashtra State Assembly on Thursday, June 30, Chief Minister Uddhav Thackeray was left with the predicament of proving his majority in an Assembly where he has lost at least 39 MLAs – as claimed by the rebel Shiv Sena faction.

But weeks of uncertainty on the future of the Maha Vikas Aghadi (MVA) government since Thackeray’s close associate, MLA, and Minister, Eknath Shinde decided to rebel and create his own team, culminated in Thackeray’s resignation on Wednesday night after the SC judgment.

What had been Shinde camp’s claim that his rebel group of 39 MLAs are the “real Shiv Sena”, became the downfall of the MVA. This, even while Thackeray’s side had said 16 MLAs stood disqualified – on the orders of the deputy speaker Narhari Zirwal. The latter was significant for Thackeray’s Sena as their alliance was left with just 118 MLAs while the party rebels who are touted to join the Bharatiya Janata Party led National Democratic Alliance, would together stand at a majority mark of 163.

Thursday would have seen the chief minister proving the executive had the confidence of the legislature.

The Lok Sabha Rule 198 says that the Governor can ask the government to prove majority in floor test. It became applicable after the case of Shivraj Singh Chouhan v Speaker, Legislative Assembly of Madhya Pradesh And Ors, where the Supreme Court clarified that the Governor is empowered to issue direction to chief minister to hold a floor test and demonstrate the trust in their government.

In Maharashtra’s case, the Governor was down with Covid-19 and Deputy Speaker Zirwal had disqualified 16 of the 39 rebels. This was pointed out by Shiv Sena chief whip Sunil Prabhu in his petition to the SC, where he termed Governor Bhagat Singh Koshyari’s directions to MVA government to take floor test as illegal. Prabhu contended the Governor didn’t take into account Deputy Speaker’s disqualification notices and said that none of the 39 MLAs wrote to Governor withdrawing support to MVA govt.

Advocate Abhishek Manu Singhvi, appearing on behalf of Prabhu, said that in the present scenario it appears while my left hand was tied by the 10th schedule, the right hand was being asked to do the floor test. He had further argued that the floor test cannot be essential to democracy.

But the confusion still is does the 10th schedule argument hold fast in Maharashtra’s situation?

Disqualification Of Members

Disqualification of members of a House on the grounds of defection are detailed in the Tenth Schedule of the Constitution, referred to as the ‘anti-defection law’.

One of the important provisions for disqualification on ground of defection is when a member of a House belonging to any political party voluntarily gives up his/her membership of the political party.

The Shiv Sena led by Maharashtra Chief Minister Uddhav Thackeray had argued that the MLAs had voluntarily left the party. Advocate Devdutta Kamat, Shiv Sena’s Senior Counsel had said that proceedings against 16 MLAs, had been initiated “Under the provision in the Constitution which says that if a person gives up the membership of a party then he’s eligible for disqualification.”

In the Supreme Court on June 29, Abhishek Manu Singhvi argued that in three cases the apex Court had contended that the act of going to the Governor and complaining about their own party by itself was an act of voluntarily giving up membership.

Coming back to the 10th schedule, the Constitution also states when a disqualification on ground of defection would not apply. One being in case of merger, where the members original political party merges with another political party and s/he claims that he and any other members of his original political party have become members of such other political party or, as the case may be, of a new political party formed by such merger.

In case of the rebel faction, no such merger has taken place yet, and the Shiv Sena rebels led by Shinde, as mentioned above call themselves the “real Shiv Sena”.

The next section on where a disqualification on ground of defection would not apply is when a merger has not been accepted and instead the members of the House have opted to function as a separate group, and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs.

An important aspect here is, especially in the context of the Shiv Sena rebels, where the 10th declaration says that the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.

In this case the rebel Shiv Sena leaders claim to have 2/3 of the majority.