The anti-defection law (Tenth Schedule1) was added to the Constitution of India2 through the Constitution (52nd Amendment) Act, 1985.3 At that time, the lawmakers did not foresee that it would be used as an instrument to engineer a change of Government. The efficiency of the law has been questioned by scholars from time to time. In the recent Maharashtra Assembly case, the Supreme Court intervened and referred important questions of law related to the anti-defection law to a 5-Judge Constitution Bench of the Court.4 In this article, the judicial process followed by the Supreme Court in the case is analysed wherein it firstly, extended the time provided to the legislators to furnish a reply to the notice issued by the Deputy Speaker and then, referred important questions of law pertaining to the anti-defection law to a Constitution Bench.
Interim relief granted by the Supreme Court
On 25-6-2022, the Deputy Speaker of the Maharashtra Assembly — Mr Narhari Zirwal issued notice to initiate disqualification proceedings under the Tenth Schedule to the Constitution against Mr Eknath Shinde and 15 other members (hereinafter “Shinde faction”) of Maharashtra Legislative Assembly. As there was no Speaker at the time when the disqualification proceedings were initiated, Deputy Speaker Mr Zirwal was the competent authority to initiate the proceedings. He asked the legislators to file their reply by 5 p.m. on 27-6-2022 i.e. nearly within 48 hours.5
The Shinde faction filed a petition under Article 32 of the Constitution6 on the ground that there was a notice for removal of the Deputy Speaker of the Assembly himself and argued that as per the ratio of the Supreme Court judgment in Nabam Rebia & Bamang Felix v. Dy. Speaker, Arunachal Pradesh Legislative Assembly7, the Deputy Speaker cannot initiate the disqualification proceedings when removal proceedings are pending against him. Another ground urged by them was that the Deputy Speaker was proceeding in undue haste and without following the principles of natural justice, as they were not provided with a reasonable opportunity of hearing.8
Principally, while exercising the jurisdiction under Article 32, there are certain principles which ought to be considered by the Supreme Court. First, adherence to the basic principles of administrative law. Second, disinclination to decide purely political matters. Third, the Court must be mindful of the scope of judicial intervention in political matters and precedents on the subject, specifically while framing questions to be referred to the larger Bench. In light of these requirements, the process followed by the Court in this case warrants scrutiny.
Upon the initiation of disqualification proceedings by the Deputy Speaker, the Shinde faction, was granted a time period of 48 hours to submit its reply.9 In this background, the Shinde faction moved the Supreme Court. The Supreme Court Bench of Surya Kant and J.B. Pardiwala, JJ. intervened in the matter and remarked that “haste can lead to undesirable consequences”.10 Resultantly, the Bench extended the time to submit reply to the Deputy Speaker's notice till 12-7-2022, which gave the Shinde faction “breathing time”.11
Here, the action taken by the Court warrants critical appraisal on 3 counts. First, whether the Court can intervene at a stage when the proceedings have not been finally decided by the Presiding Officer. Second, whether the Court can extend the time to file reply to notice if it thinks that the time given is not reasonable. Third, if at all it was proper for the Court intervention in the said manner at this stage, what would be the consequences of such intervention.
On the first issue, as pointed out by the counsel for Shiv Sena Legislative Party Leader, Senior Advocate A.M. Singhvi, the intervention of the Court is barred until the matter is finally decided by the Presiding Officer, as per the Supreme Court Constitution Bench judgment in Kihoto Hollohan v. Zachillhu12. The Court must have appreciated that the scope of judicial review of a decision taken by a constitutional functionary (like the Presiding Officer of a Legislative Assembly) is different from the scope of review of actions taken by purely executive authorities. Furthermore, Article 212 of the Constitution also bars the courts from inquiring into legislative procedure.13 One may argue that recently a Bench headed by Nariman, J., also intervened in a similar situation in Keisham Meghachandra Singh v. Speaker, Manipur Legislative Assembly14, and asked the Manipur Assembly Speaker to decide the disqualification petitions within 3 months. However, the factual matrix of that case was different. Some members from the opposition Benches joined the ruling party and disqualification proceedings were initiated against them. The Speaker of the Manipur Assembly sat on the proceedings and did not take a decision. The objective behind the inaction on disqualification proceedings seemed to be to render them infructuous by sitting on them long enough. The Supreme Court, by jointly reading its decision in Kihoto case15 and Rajendra Singh Rana v. Swami Prasad Maurya16, asked the Speaker to decide the petitions within 3 months so that the option of judicial review of the decision of the Speaker is open for the parties.17 In Manipur Assembly case18, one can see that the intervention of the Court was to prevent the anti-defection law from being defeated, consequent to the abdication of constitutional duties by the Speaker. Whereas in Maharashtra Assembly case19, no such circumstance of inaction or abdication of duties was prevailing, and thus, the action of the Court was in stark violation of the binding precedent in Kihoto Hollohan case.20
As I address the second issue, we must note that the Deputy Speaker, while deciding the disqualification proceedings, is performing a quasi-judicial function. Therefore, the principles of natural justice must be followed. The principle “audi alteram partem” i.e. the rule of fair hearing means that no one should be condemned unheard. In other words, the parties should be given a reasonable opportunity of being heard before deciding the issue. In the present case, there is no doubt that the time period given to the legislators to reply to the notice of disqualification could not be termed as a “reasonable opportunity”. Despite that being the case, the Court's order extending the time till 12-7-2022 is in violation of the law settled on this subject-matter. The settled law, which holds the field today, is that the judiciary while intervening in quasi-judicial functions, cannot usurp the power of the deciding body and replace the wisdom of the Deputy Speaker with that of its own. In the present case, it would have been sufficient for the Court to observe that the 48 hours' time to reply was not a reasonable time and the matter could have been remanded back to the Deputy Speaker for further consideration.
An unforeseen consequence of such intervention by the Court was a call for a floor test by the Shinde faction. This brings me to the third issue. The two weeks' time for replying to the notice gave enough time to the dissident legislators to convince the Governor to call upon the Government to prove its majority on the floor of the House, even though disqualification proceedings had been initiated against them. The Governor of Maharashtra, in the exercise of his powers under Article 174 of the Constitution21, called for a special session of Maharashtra Assembly on 30-6-2022 and asked the Maha Vikas Aghadi (MVA) Government to prove its majority on the floor of the House.22 In view of the fact that the Supreme Court had extended the time provided to the Shinde faction, to reply to the disqualification notice, from nearly 48 hours to 2 weeks, the Shiv Sena Chief Whip, Mr Sunil Prabhu challenged the action of the Governor before the Supreme Court on 29-6-2022. In this second round of litigation before the Supreme Court, the same Bench of Surya Kant and J.B. Pardiwala, JJ. refused to stay the floor test, as a result of which the then Chief Minister, Mr Uddhav Thackeray resigned from his position on the same day.23 As a matter of principle, the refusal of the Supreme Court to stay the floor test was the legally correct decision. It was in tune with the settled precedent as well as with the scope of judicial intervention in such matters. However, the above analysis would reveal that the intervention of the Court effectively led to the fall of a duly elected Government, which was not in consonance with the settled principles of constitutional and administrative law.
Reference to the Constitution Bench
When the matter was taken up for regular hearing, a Bench of N.V. Ramana, C.J. and Krishna Murari and Hima Kohli, JJ. referred the matter to a 5-Judge Constitution Bench on 23-8-2022. The Court framed 10 substantial questions of law pertaining to the interpretation of the Constitution.24 While referring the questions to a larger Bench, the Court must apply its independent judicial mind on the relevance of those questions. The Court should consider the applicability of the doctrine of precedent and other constitutional principles. In the instant case, some of the referred questions have already been decided by a 5-Judge Bench in Kihoto Hollohan case25. Illustratively, Question (b) is to examine the legality of a decision on a disqualification petition by the High Courts or Supreme Court under Article 22626 or Article 32 as the case may be, absent decision of the Presiding Officer on such disqualification. Question (c) is whether a Court can hold that a member is “deemed” to be disqualified, by virtue of his/her actions, absent a decision by the Speaker?
The Constitution Bench in Kihoto Hollohan case27 has already settled the above questions way back in 1992. The Court has already held that the disqualification proceedings are amenable to judicial review under Article 226 or Article 32 only when the Presiding Officer has decided the matter.28 The 5-Judge Bench categorically held that the Courts cannot intervene when the disqualification petition is pending before the Presiding Officer. As far as intervention of the Supreme Court in Manipur Assembly case29 is concerned, I have already discussed the nature and extent of intervention in that case and distinguished from the present case. Therefore, when in the present case, the Court was framing questions, they should have considered the settled position of law on this subject-matter. As and when these issues will come up for consideration before the 5-Judge Constitution Bench, the Court might even have to refer them to a Bench of larger composition than in Kihoto Hollohan case30. Similar issue could be identified in Question (i) which pertains to the extent of discretion and power of the Governor to invite a person to form the Government and scope of judicial review of such exercise of power.
As far as Question (j) regarding the scope of the powers of the Election Commission of India (ECI) with respect to determination of a split within a party is concerned, the Court could have just referred to the distinction drawn in Tenth Schedule between the “legislature party” and “original political party”. By virtue of Article 324 of the Constitution31, the Election Commission of India is a constitutional body. It also has certain statutory powers. The power to determine whether there is a split within a political party outside legislature is one such power of the ECI.32 The power to recognise the legislature party rests with the Presiding Officer of the House as per the current scheme of provisions. Therefore, statutory provisions on the scope of the powers of the ECI to determine a split within a political party are very clear and hence, there was no need to refer this issue to the Constitution Bench.
There is an expectation from the Supreme Court of the country to follow the highest standards of judicial process. In order to maintain rule of law, it is imperative that the judiciary follows the settled principles of law.
In this case, the judicial process followed by the Court, which effectively resulted in fall of the Government, and the manner in which questions which have been referred to the Constitution Bench are not commensurate with the standards which the Supreme Court ought to have maintained. The intervention of the Court must not enable horse trading. The application of judicial mind while framing questions for reference would have brought clarity to the law, apart from saving the precious judicial time of the Court. On 6-9-2022, when this matter was mentioned again by the counsel for Shinde faction, U.U. Lalit, C.J. correctly remarked that there might be no requirement for referring the question on the scope of the power of the ECI to the Constitution Bench.
† Assistant Professor (Guest), Campus Law Centre, University of Delhi and an Ex-LAMP Fellow at PRS Legislative Research. Author can be reached at email@example.com.
5. All India Radio, News Services Division, “Impasse in Shiv Sena Continues; Assembly Deputy Speaker Narhari Zirval Issues Notices to 16 MLAs of Eknath Shinde Faction”, 25-6-2022, available at <https://newsonair.gov.in/News?title=Impasse-in-Shiv-Sena-continues%3B-Assembly-Deputy-Speaker-Narhari-Zirval-issues-notices-to-16-MLAs-of-Eknath-Shinde-faction&id=443246> (last visited on 25-11-2022).
8. The Print, “Maha Crisis: SC Puts in Abeyance Disqualification Proceedings Against Rebel Shiv Sena MLAs, Relief for Shinde Camp”, 27-6-2022, available at <https://theprint.in/india/maha-crisis-sc-puts-in-abeyance-disqualification-proceedings-against-rebel-shiv-sena-mlas-relief-for-shinde-camp/1014751/> (last visited on 25-11-2022).
9. All India Radio, News Services Division, “Impasse in Shiv Sena Continues; Assembly Deputy Speaker Narhari Zirval Issues Notices to 16 MLAs of Eknath Shinde Faction”, 25-6-2022, available at <https://newsonair.gov.in/News?title=Impasse-in-Shiv-Sena-continues%3B-Assembly-Deputy-Speaker-Narhari-Zirval-issues-notices-to-16-MLAs-of-Eknath-Shinde-faction&id=44324> (last visited on 25-11-2022).
10. The Print, “Maha Crisis: SC Puts in Abeyance Disqualification Proceedings Against Rebel Shiv Sena MLAs, Relief for Shinde Camp”, 27-6-2022, available at <https://theprint.in/india/maha-crisis-sc-puts-in-abeyance-disqualification-proceedings-against-rebel-shiv-sena-mlas-relief-for-shinde-camp/1014751/> (last visited on 25-11-2022).
11. The Hindu, “SC Gives Sena Rebels Time till July 12 to Respond to Disqualification Notice for Defection”, 27-6-2022, available at <https://www.thehindu.com/news/national/sc-gives-sena-rebels-time-till-july-12-to-respond-to-disqualification-notice-for-defection/article65570536.ece> (last visited on 25-11-2022).
Courts not to inquire into proceedings of the legislature.â€”(1) The validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
17. Charith Reddy & Shagun Bhargava, “For Laws May Come and Laws May Go, But Defections Go on Forever: A Critical Analysis of the Role of Speaker in the Indian Anti-Defection Laws”, (2020) 10(1) NLIU Law Review 345.
22. The Indian Express, “Maharashtra Political Crisis: Governor Calls for Floor Test on Thursday”, 29-6-2022, available at <https://indianexpress.com/article/cities/mumbai/uddhav-thackeray-floor-test-trust-vote-maharashtra-assembly-eknath-shinde-governor-7997567/> (last visited on 25-11-2022).
23. Sunil Prabhu v. Governor of Maharashtra, 2022 SCC OnLine SC 776; also see “Maharashtra Political Crisis| Supreme Court Refuses to Stay Trust Vote; Uddhav Thackeray Resigns as CM”, (30-6-2022), <https://www.scconline.com/blog/post/2022/06/30/maharashtra-assembly-trust-vote-udhhav-thakrey-political-crisis-supreme-court-legal-research-updates-news/> (last visited on 25-11-2022).
It aims to “to provide for specification, reservation, choice and allotment of symbols at elections in Parliamentary and Assembly Constituencies, for the recognition of political parties in relation thereto and for matters connected therewith”.