A Speaker’s flawed move to determine the real faction
- The Maharashtra Assembly Speaker faces a critical decision on whether the Shiv Sena breakaway group, led by Eknath Shinde, voluntarily abandoned their party membership
- And violated the party whip, leading to potential disqualification under the anti-defection law.
Background and Legal Framework:
- Examining the Tenth Schedule of the Constitution, voluntary departure from the party or voting against its whip constitutes defection.
- The Speaker must determine if the Shinde group's actions qualify for disqualification, despite subsequent developments like Shinde becoming Chief Minister.
Petition and Allegations:
- The original Shiv Sena party files a petition seeking disqualification, citing secret meetings, non-attendance at party meetings, and forming an alliance with the opposition.
- The Speaker must assess whether these actions equate to voluntarily giving up party membership.
Legal Precedent and Criteria:
- Referring to the Supreme Court's guidance, joining the opposition and attempting to form an alternative government can be deemed voluntary abandonment of party membership.
- The conduct of the Shinde group, in light of this, suggests defection.
Flawed Judgment:
- Speaker Narwekar's nearly 1,200-page judgment is criticized as deeply flawed for attempting to avoid disqualification.
- The Tenth Schedule now lacks the provision for legislators to avoid disqualification through a party split, making the Speaker's judgment contentious.
Misinterpretation by the Speaker:
- The Speaker erroneously delves into determining the real Shiv Sena faction, a task beyond his jurisdiction.
- The Election Commission is designated to decide faction authenticity, and the Speaker's focus should be on determining the original party the legislators defected from.
Contradictions in the Ruling:
- The Speaker's declaration of the Shinde group's appointments as valid contradicts the Supreme Court's findings that recognize them as illegal.
- The court unequivocally states that the original Shiv Sena, led by Uddhav Thackeray, is the only political party, questioning the Speaker's jurisdiction to determine faction authenticity.
Conclusion:
- The controversial ruling raises questions about the Speaker's jurisdiction, misinterpretation of legal precedents, and contradictions with the Supreme Court's findings.
- The dispute underscores the complexities of anti-defection laws and the need for adherence to legal procedures in such cases.