The Maharashtra Speaker discerned from the “legislative majority” held by the faction led by Chief Minister Eknath Shinde that they were the “real” Shiv Sena.
However, a Constitution Bench of the Supreme Court, deciding the Shinde versus Uddhav Thackeray dispute, had directed in a May 2023 judgment that the “Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly”.
Also Read | A Speaker’s flawed move to determine the real faction
Shinde had most MLAs
A summary of the Speaker’s decision shared with the media said “which faction is the real political party is discernible from the legislative majority which existed when the rival factions emerged”.
It went on to say that the “Shinde faction had an overwhelming majority of 37 out of 55 MLAs when the rival factions emerged. The Shinde faction was the ‘real Shiv Sena Political Party’ when the rival factions emerged on June 21 2022”.
The Constitution Bench led by Chief Justice of India D.Y. Chandrachud had said the Speaker would have first to find out which faction was the real party to decide the question of ‘split’.
The court had said that deciding which camp represented the real Shiv Sena was more than about numbers.
“This is not a game of numbers, but of something more. The structure of leadership outside the legislative assembly is a consideration which is relevant to the determination of this issue,” the Constitution Bench had pointed out.
Split is no defence
The court had said the strength in numbers of a faction was of no consequence if the legislators were found guilty of defection by splitting the party. They would be surely disqualified under the Tenth Schedule (anti-defection law) of the Constitution.
“The percentage of members in each faction is irrelevant to the determination of whether a defence to disqualification is made out,” the Constitution Bench had clarified.
A ‘split’ from the original political party without a subsequent merger with another party or the formation of a new faction is no longer a defence for legislators facing disqualification for defection. The Constitution (Ninety-first Amendment) Act, 2003 deleted the provision of ‘split’ in Paragraph 3 of the Tenth Schedule.
“The inevitable consequence of the deletion of Paragraph 3 from the Tenth Schedule is that the defence of a split is no longer available to members who face disqualification proceedings. To hold otherwise would be to permit the entry of the defence of ‘split’ in the Tenth Schedule through the back door. This is impermissible and would render the deletion of Paragraph 3 meaningless. It is trite law that what cannot be done directly cannot be permitted to be done indirectly,” the court had said.
