Supreme Court to Give Judgment in Shiv Sena Case – Here Are 3 Likely Scenarios

It's a big day today for Maharashtra's politics. According to media reports, the Supreme Court is expected to deliver a judgment in the case of defection of 16 MLAs in June 2022 from the then Uddhav Thackeray-led Shiv Sena. The Thackeray faction has sought disqualification of the MLAs under India's anti-defection law.

Among the MLAs who are facing disqualification is Maharashtra's current chief minister, Eknath Shinde. Shinde's rebellion, believed to have taken place in collusion with the Bharatiya Janata Party, had toppled the then Maha Vikas Aghadi government.

The 'Group of 16' also includes cabinet ministers Abdul Sattar, Tanaji Sawant and Sandipan Bhumare.

While a total of 40 MLAs had defected from the Shiv Sena, the disqualification has been sought against the 16 MLAs who were the first ones to go incommunicado.

Sunil Prabhu, the then chief whip of Shiv Sena, had moved the Supreme Court seeking suspension of the 16 MLAs for anti-party activities.

According to Clause 2(b) of the Tenth Schedule in the Constitution, a member of the legislative house can be disqualified if

"He votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention."

A number of petitions had been filed in the Supreme Court by both the Shinde and the Thackeray factions. The matter was heard by the constitution bench of Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha.

Justice MR Shah is retiring on 15 April, which may have prompted the Court to deliver the judgment this week.

Along with the disqualification of 16 MLAs, the Court is supposed to consider following issues as well.

• Deputy speaker Narhari Zirwal's decision (the position of Vidhan Sabha speaker was vacant after the resignation of Nana Patole earlier) to send notices to rebel MLAs for alleged defection under the Tenth Schedule

• The then Maharashtra Governor Bhagat Singh Koshyari's decision to call for a trust vote without consulting the cabinet

• Swearing-in of Chief Minister Eknath Shinde with the support of the BJP

• The election of new speaker (in July 2022)

However, all of these issues are related to one another and they will ultimately decide the fate of the Group of 16. Three main scenarios are possible after the Supreme Court's judgment. Let us consider them one by one.

1. Court Refuses to Disqualify the MLAs

This is the easiest to deal with. If the Supreme Court says that the rebellion of the Shinde faction doesn't fall foul of the Tenth Schedule, the status quo will prevail in Maharashtra.

2. Court Disqualifies the MLAs

If the Court says that the MLAs have broken the anti-defection law and therefore must be disqualified, the immediate repercussion will be that Shinde will lose his CM seat.

Since Shinde is part of the Group of 16, he will lose his MLA status and in effect chief minister's position. Though, this in itself may not topple the government as the Shinde faction and the BJP would still retain the majority in the house.

Here's how the numbers are stacked:

• Total MLAs = 288

• Majority needed = 145

• BJP + Shiv Sena (Shinde faction) MLAs = 164

If the 16 MLAs are disqualified, the new numbers will be

• Total MLAs = 272

• Majority needed = 137

• BJP + Shiv Sena (Shinde faction) MLAs = 148

However, there are two additional things that we need to take into account and that may be detrimental to the stability of the current government.

If Shinde cannot be the chief minister, who will replace him? Will the new CM be from his faction only or will the BJP stake claim on the position? Further, the government may also have to face another floor test.

Secondly, if the 16 MLAs in question are disqualified, what happens to the remaining 24 who had gone with Shinde? Will they similarly not be disqualified? If that does happen, the government will surely come crashing down.

3. Supreme Court Passes the Case to Either the Speaker or the Deputy Speaker

The Court may opine that the right to take a decision on the disqualifications under the Tenth Schedule lies with the speaker of the house and may pass the case to either the current speaker or the deputy speaker.

The current Vidhan Sabha speaker, Rahul Narwekar, was appointed as Speaker after Shinde's rebellion and the BJP-Shiv Sena (Shinde faction) government was formed. Narwekar belongs to the BJP and if the case goes to him, he is likely to decide in favour of the Shinde faction.

However, the Court may also decide to give the case to Narhari Zirwal, who is the current deputy speaker but was acting speaker when the rebellion took place. Zirwal, who belongs to the Nationalist Congress Party, had issued disqualification notices to the rebel MLAs in June 2022. If the case goes to him, he is likely to give a decision against the Shinde faction. He has gone on record saying as much.