As Supreme Court Mulls Referring Shiv Sena Dispute to a Constitution Bench, Tenth Schedule’s Relevance Comes under Scrutiny
V Venkatesan (The Leaflet) 21 July 2022
On Wednesday, counsel articulated two rival contentions before the bench: While the Udhav Thackeray faction described Eknath Shinde faction’s majority in the assembly as ‘contrived’, the Shinde faction claimed that the Tenth Schedule cannot be applied to disputes involving inner-party democracy. 
ON Wednesday, Round-3 of the ongoing struggle for supremacy between the rival factions of Shiv Sena might have just begun with the Supreme Court asking the parties on how it should go about hearing the rival petitions on disqualification of rebel MLAs under the Tenth Schedule to the Constitution, dealing with defection.
If Round-1 went in favour of the Eknath Shinde faction, with the then chief minister, Udhav Thackeray submitting his resignation ahead of the floor test in the Maharashtra assembly, after failing to secure a stay on it from the Supreme Court, Round-2 also ended up favouring the Shinde faction, with Eknath Shinde’s coalition government with the BJP securing majority in the floor test held on July 4.
Although there is no indication of which faction will be favoured in Round-3, it is clear that the hearing of the case in the Supreme Court will bring the Tenth Schedule under closer scrutiny than ever before.
On Wednesday, the bench comprising the Chief Justice of India, N.V.Ramana and Justices Krishna Murari and Hima Kohli, after a preliminary hearing of the issues involved, mulled over referring the dispute to a larger bench, as in its view, several Constitutional issues are likely to arise for adjudication.
Reference to a larger bench
While the Thackeray faction favoured such a reference, the Shinde faction opposed it saying it could persuade the bench that such a reference is not required,  as the very relevance of the Tenth Schedule to the facts of the case is in doubt.  The bench, thus, directed the parties to frame their issues by July 27. The bench will then hear the matter, and take a call on referring it to a larger bench, before the next hearing on August 1.
Kapil Sibal, appearing for the Thackeray faction,  submitted that under the Tenth Schedule, there is no constitutional protection provided to any member of the political party who seeks to separate from the ‘recognised’ political party within the Legislative Assembly. The only protection provided under paragraph 4, is a merger of the political parties, Sibal told the court.  Since this is not a merger, no protection is available under the Tenth Schedule, he asserted.
Sibal vehemently contended that democracy is in danger if governments of any state can be toppled despite the bar under the Tenth Schedule. According to him, all the 40 MLAs who joined the Shinde faction are deemed to have incurred disqualification under the Tenth Schedule by voluntarily giving up party membership by their conduct, as defined by paragraph 2(1)(a) of the Schedule.
Sibal submitted that the Governor could not have sworn in an individual who along with others had chosen voluntarily to separate themselves from the recognised political party in Maharashtra Legislative Assembly.  He urged the court to call for the records of the legislative assembly.
Contrived majority
Abhishek Singhvi, also appearing for the Thackeray faction, called the majority attained by the Shinde faction as a “contrived majority”. He submitted that under the Tenth Schedule, merger with another party is a must to avoid disqualification.
Singhvi further submitted that the Supreme Court has described defection as a constitutional sin in successive judgments. He told the bench that while the courts have repeatedly strengthened the anti-defection law, it has been weakened by the recent events in Maharashtra.
On the disqualification proceedings initiated by the then Deputy Speaker, Singhvi submitted that the letter sent to the Deputy Speaker stating no confidence in him was sent from an unauthorised email and the second email was forwarded by an advocate.
“The Deputy Speaker takes it, seizes it, and records the finding that he is not taking it on record because no Member of the Legislative Assembly has come to him physically. However, a non-genuine situation was created to disable the deputy speaker from deciding the disqualification petitions before him”, Singhvi added.
“Ingenuity knows no bounds”,  Singhvi told the court while referring to Supreme Court’s Nabam Rebia versus Deputy Speaker.  Singhvi interpreted this judgment to mean that if there is a genuine situation of lack of confidence in the Speaker, he is disabled from deciding the disqualification petitions before him till the no-confidence motion is settled. He then stated that in the present case, a non-genuine situation has been created by sending something which was not even taken on record. However, this was the entire basis for disabling the Deputy Speaker, he told the court.
“On the one hand, you are defecting and on the other hand, the Speaker cannot even decide against you because you have disabled him. This situation is unheard of, Singhvi claimed before the bench, while stating that the Deputy Speaker should have been allowed to decide the disqualification petition or the floor test should not have happened.
Inner-party democracy
However, Harish Salve, counsel for the rebel MLAs, told the court that this situation cannot be referred to as defection.  Disqualification does not apply to inner-party democracy, he told the bench. “The moment you question the authority  of the leader not by leaving your party but by staying and saying they will gather enough strength to defeat them in the floor test is not defection”, Salve said.
Furthermore, he requested the court to not become a Tenth Schedule tribunal and decide the issue which involves the working of political parties. “Milords have never interfered in the working of  any partyy” , he said.
Referring to para 2(1)(a) of the Schedule,  Salve explained thus: “If a person elected under  the symbol of party A, goes out to the Governor and says I am supporting  party B, you can say he has voluntarily  given up membership. … This is not applicable  when a member of a political  party  goes to the Governor  and says, “The chief  minister  is not enjoying  the confidence  of the House”. This, Salve said, is not voluntarily giving up membership of the party which fielded him in the elections.
(with inputs from Gursimran Kaur Bakshi) 
(V.Venkatesan is Editor, The Leaflet.)
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