New Delhi, (Samajweekly) The Supreme Court judgment, ruling on a batch of petitions arising out of the intra-party rift in the Shiv Sena, made a detailed analysis of the Tenth Schedule of the Constitution (or the anti-defection law) to draw a distinction between a legislative party and a political party.
A five-judge bench, headed by Chief Justice D.Y. Chandrachud, said the Tenth Schedule would become unworkable if the term ‘political party’ is read as the ‘legislature party’.
The bench — also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli, and P.S. Narasimha – said that the Parliament, in its constituent capacity, was conscious of the necessity of not allowing anti-defection laws to stifle intra-party dissent and the freedom of expression of legislators.
“When the anti-defection law seeks to curb defections from a political party, it is only a logical corollary to recognize that the power to appoint a whip vest with the political party,” it said.
The bench observed that to read the term ‘political party’ as ‘legislature party’ would be contrary to the plain language of the Tenth Schedule. It said that to hold that it is the legislature party which appoints the whip would be to sever the figurative umbilical cord which connects a member of the house to the political party.
The bench said “that a whip be appointed by the political party is crucial for the sustenance of the Tenth Schedule. The entire structure of the Tenth Schedule which is built on political parties would crumble if this requirement is not complied with. It would render the provisions of the Tenth Schedule otiose and have wider ramifications for the democratic fabric of this country. Thus, the courts cannot be excluded by Article 212 from inquiring into the validity of the action of the Speaker recognising the whip”.
The bench said the Speaker, on taking cognizance of the resolution passed by the faction of Shiv Sena Legislative Party (SSLP) led by Eknath Shinde, did not attempt to identify which of the two persons who were nominated (Sunil Prabhu or Bharat Gogawale) were authorised by the political party.
“In a contentious situation such as this, the Speaker should have conducted an independent inquiry based on the rules and regulations of the political party to identify the whip authorised by the Shiv Sena Political Party.”
“The Speaker must only recognise the Whip appointed by the political party. The decision of the Speaker recognising Mr. Gogawale as the Chief Whip of the Shiv Sena is illegal because the recognition was based on the resolution of a faction of the SSLP without undertaking an exercise to determine if it was the decision of the political party”.
The bench noted that the leader of the legislature party is the link between the political party and the legislative Assembly. “If the interpretation of the respondents is accepted, the action of the leader condoning an MLA’s prohibitory conduct would not reflect the voice of the political party and would instead reflect the voice of the legislature party. This would be contrary to the manner in which the Tenth Schedule is intended to operate. The manner in which the Tenth Schedule would then operate would not effectively prevent or provide a solution to the constitutional sin of defection,” said the bench.
The top court concluded that the political party and not the legislature party appoints the whip and the leader of the party in the House. “Further, the direction to vote in a particular manner or to abstain from voting is issued by the political party and not the legislature party,” it said.
