How Eknath Shinde Got Around Anti-Defection, Whip Dilemma With Some Help From SC

Thanks to the Court's orders, Shinde and his rebels were not at real risk from party whip and anti-defection law.

In the end, after feverish speculation over the anti-defection law and whether the Election Commission would get to decide who was the 'true' Shiv Sena, the Maharashtra political crisis was resolved with a whimper.

Uddhav Thackeray resigned as Maharashtra chief minister after the Supreme Court refused to stay the governor-called floor test on 30 June (even though, confusingly, it said the result would be subject to the pleas before it regarding disqualification of the rebel MLAs and the removal of Deputy Speaker Narhari Zirwal).

On 30 June itself, without a floor test or any long-drawn-out machinations, Eknath Shinde took oath as the new chief minister, with BJP leader Devendra Fadnavis surprisingly agreeing to become deputy CM.

But how was this possible without violations of the anti-defection law? Did this require a determination of who was the true representative of the Shiv Sena? And has the Supreme Court been rendered redundant in the midst of all this?

Schrödinger's Whip

It had become clear over the last few days that Eknath Shinde did have the support of more than two thirds of the Shiv Sena's elected MLAs, which meant that the Maha Vikas Aghadi government was not going to be able to demonstrate a majority on the floor of the house.

The one stumbling block that existed for Shinde's rebels was how to avoid the party whip, that is, directions to vote in a particular way during a motion. With the whip seeming to lie (formally) with Uddhav Thackeray's camp, this technically meant that in any vote, the rebels would nonetheless have to vote as per the former chief minister's instructions.

This would have been a stumbling block in not just a floor test to decide whether the MVA government had support, but also the subsequent floor test to prove that the new government had the requisite majority.

Even after the resignation of Uddhav Thackeray as chief minister, this remains a possibility, but it will require his faction to now take up the claim of being the real Shiv Sena, which he will find very difficult to establish.

The key moment had been right at the outset of the crisis, when the MVA government failed to immediately get disqualification notices issued to a sufficient number of rebel MLAs, before the rebels put in their request for the removal of the deputy speaker.

If there had been no cloud over the deputy speaker's ability to consider the disqualification notices, then a large chunk of the rebels would have found themselves disqualified for defection, and Thackeray might have still been able to narrowly win a floor test.

However, because the notice for removal of the deputy speaker came first (even though it was rejected), the rebels were able to say the Nabam Rebia judgment of the Supreme Court prohibited Zirwal from hearing the disqualification pleas.

There was a way for the deputy speaker to argue against this, but it required further consideration by the Supreme Court, which meant the rebels were able to secure an interim order against disqualification till the date of the court's hearing.

The rest, of course, is history, with Governor Bhagat Singh Koshyari more than happy to order a floor test even though the apex court had said it was looking at this crucial issue.

The problem was that the whip could only be tested in an actual vote, but the moment an actual vote took place without any of the rebels being disqualified, the whip would have become irrelevant.

Shinde had to make sure he and his rebels held fast to the idea that they were the Shiv Sena, make sure there were no defections to the BJP, and thus ensure at the outset of the rebellion that there was no obvious violation of the anti-defection law in advance of the floor test.

He did so, and thus was able to keep himself in a position to approach the governor as the true leader of the Shiv Sena without even having to get a ruling on this issue from the Election Commission. Now he is the one who gets to decide the whip and issue directions to Shiv Sena MLAs – including Thackeray's faction – all without a messy fight over who should be the boss.

Thackeray's faction hasn't entirely given up the fight, saying to the Supreme Court in a fresh application that Thackeray remains in control of the party, but it is difficult to see how he will prove this, especially after Shinde has been sworn in.

There are technically now two parties claiming to have the authority to issue the whip, but now that the governor has allowed Shinde to form the government, it is difficult to see how Thackeray's whip can be recognised, unless the Supreme Court overturns the decision to call Shinde to take oath.

In this, the prediction made by former Chief Election Commissioner Navin Chawla came true. Speaking to The Quint earlier, he had been firm that the issue of who the true Shiv Sena is, was not likely to reach the EC, and would be settled in the courts or before the governor.

Supreme Court Proves Unwitting Assistant, Renders Its Own Proceedings Irrelevant

When the Supreme Court agreed to entertain the pleas by Eknath Shinde and the other rebels facing disqualification, it was clear as day to everyone that the time taken by the court to decide the issue would be used to push for a floor test.

On that very day, the lawyers for the Shiv Sena whip, Maharashtra government, and the deputy speaker urged the court to include an interim direction to the governor to not order any floor test while the court decided the pleas.

This was a fairly obvious request, since the court was only going to take up the pleas nearly two weeks later on 11 July. With the disqualification proceedings on hold till then, it would have made logical sense to ensure the disqualification proceedings were not rendered infructuous by a floor test where all the MLAs had a chance to vote, despite alleged 'defection.'

The court, perhaps thinking that any attempt to conduct a floor test would clearly be against the spirit of its order, declined to issue any such direction without the governor being present before it, but said the Shiv Sena could approach it in case any such floor test or other potential change to the status quo was effected.

This was why the matter ended up back in the Supreme Court on Wednesday evening, after the governor ordered a floor test for Thursday.

However, the apex court made a bizarre decision at this point. It could have held that it could not interfere with this decision of the governor and therefore refused to entertain the Shiv Sena's plea before it.

Instead, it agreed to hear the petitions filed by the Thackeray camp and issued notice on them – but refused to stay the floor test order. At the same time, it said the floor test would be subject to the decision reached in the other matters.

It is strange that the court went with this latter formulation, given how obvious it was that this would result in a fait accompli.

If Uddhav Thackeray failed the floor test, there was little realistic chance that he could hold on to power and insist that the floor test results be revised after the court made an eventual decision weeks later on whether to allow disqualification proceedings to continue against the rebels.

The combination of the court's orders, as a result, proved to be integral to the collapse of the MVA government and the elevation of Eknath Shinde to the chief minister's post.

Whoever was the Shinde faction's legal advisor ended up playing a vital role in the matter by the end.

While Shinde could have still ended up in this situation, without the court's order delaying a decision on the disqualification notices, the whole issue would have been protracted, potentially allowing the MVA to win back some of the rebels and secure its majority in a reduced Assembly.

The decision to send the notice for removal of the deputy speaker on 21 June, before the first disqualification notices were sent out, proved a masterstroke.

It also proved helpful for Shinde to not allow any actual defections to the Bharatiya Janata Party, even after he secured the support of two thirds of the legislature party, which a more callow adviser might have suggested. This meant he could go to the governor with all his MLAs and stake a claim as the real Shiv Sena on that basis.

For the Supreme Court, however, it might want to consider how it is that it played such a crucial role in the final outcome in the state, without any actual judgment being passed by it dealing with the questions of law.

The proceedings before it, which could have proved valuable precedent on ensuring the anti-defection law isn't undermined by misapplication of the Nabam Rebia judgment, or how a governor is supposed to act in such circumstances, are now utterly pointless and are likely to be dropped now.

Avoiding this outcome wasn't even a difficult thing to do. The court could have easily taken up the disqualification issues sooner than 11 July, or at least decided whether the deputy speaker had the power to reject the motion for his removal as he had done in this case.

It could have alternatively held that the deputy speaker could proceed with the disqualification notices, with his decision subject to a finding in the court's case on the validity of the motion for removal of the deputy speaker.

It may not have been able to prevent the governor from ordering a floor test, but it could have certainly put a stay on the floor test till later, or allowed the floor test to proceed without the MLAs facing disqualification and whose matters were sub judice.

With the matters still technically alive in the court despite the swearing in of Shinde, the Supreme Court could make a powerful statement by actually hearing the legal questions and then passing orders to effect them.

Uddhav Thackeray's faction is seeking this in the new application filed before the court, with requests for suspending the rebels (including Shinde) and not allowing them to undertake any business as the government of the state.

Whether the court will actually be willing to make such a statement, is a different matter altogether, and its decision-making in these issues over the last few days makes that an incredibly unlikely outcome.