Shivsena VS Shivsena

Shiv Sena Vs. Shiv SenaSena

At present, the Supreme Court is seized of the Shiv Sena matter and the common man is eagerly waiting for the judgement. At the last hearing, the lordship commented that subject matter needed to be placed before the larger bench because the issue involved the interpretation of the constitution. I, for one, was surprised as to what the constitutional issues were. There is no constitutional issue. The issue revolves around the following questions:

The chief whip of the Shiv Sena has addressed a representation to the deputy speaker asking for the disqualification of the 16 elected members of the Shiv Sena who have defied the attendance of an important meeting. The subsequent events and facts are important as the elected members of Shiv Sena are not ready to discuss and abide by the issue involved in the agenda, which would have resulted in the issue of whip. The issue involved the working committee of Shiv Sena, which expressed that the alliance with Congress and the Nationalist Congress Party should continue, whereas the rival faction/unattended elected legislature members differed that they want the alliance with the Bharatiya Janata Party. Due to this difference, rival groups within the Shiv Sena are claiming to be the real Shiv Sena.

The second issue is that the honourable governor, looking into the situation, called upon Udhav Thackeray to prove his majority in the legislative assembly.

The third issue is under which article of the constitution did the honourable governor call upon Mr. Eknath Shinde and Devendra Phadnavis to form the government.

As regards the first issue, on behalf of the election commission, a statement is made in the Supreme Court that the commission is empowered under the symbols allotment order 1968 and as amended in 2013, the election commission is authorised to decide the split within any registered political party under section 15 of the said order. In section 15, the most important word is “SATISFIED”. In order to understand whether any split can be decided by the election commission of India, we need to examine the Representation of the People Act of 1950 and 1951. The application for registration as a political party requires any group of people or association of people who want to register as a political party to submit an application that meets the requirements of sub-sections 4 and 5 of Section 29A. After examination of the submitted document, the election commission is authorised to grant it the status of an unrecognised registered political party or reject the application for registration. Under sub-section 9 of section 29A, the decision of the commission is final. This means that no appeal can be made. The only remedy now is to file a writ petition either to the High Court or the Supreme Court against the decision of the election commission. Nowhere in the Representation of People Act 1950 & 1951, is the election commission authorised to go into dispute within a registered political party. The orders issued under the allotment of rules order 1968 as amended in 2013 are orders by the election commission and they are not legislation which is legislated by Parliament. In the said order, section 15 speaks of the election commission being satisfied with information in it's possession and, after hearing the concerned group, can allot the symbol to either of the rival groups. The question as to what orders or directions can be issued by the election commission under Article 324 was a subject matter in A. C. Jose delivered on 05/03/1984 – stated that the powers of the election commission under article 324 are to be read with article 327. While defining the powers of the election commission under article 324, the Supreme Court has laid down that "Where there is an Act and Express Rules made thereunder, it is not open to the commission to override the Act or Rule and pass orders in direct disobedience to the mandate contained in the Act and Rules. In other words, the powers of the commission are meant to supplement rather than supplant the law( both statute and rules) in the matter of superintendence, direction and control in the conduct of elections as provided by article 324. The question is, has the election commission, by incorporating judicial powers in section 15, of deciding the dispute within the party under order of 1968, crossed the Lakshman rekha laid down in the said judgment? The judgement further says that part XV of the constitution is really a code in itself, providing the entire ground-work for enacting appropriate laws and setting up suitable machinery for the conduct of elections. In the judgment, it is noted that “the powers under article 324 relating to superintendence, direction, and control was actually, vesting of merely executive powers and not legislative powers.”

On this background, the question to be framed by the original Shiv Sena should be: (A) Whether section 15 of the symbol order 1968 is beyond the powers laid down in the representation of people act 1950 and 1951? (B) Can the election commission allot the symbol to a rival group that is not registered as a political party with the commission under section 29A of the representation of the people act? (C) What is the basis or parameter for deciding that a group or a rival faction is formed? (D) is the part of Section 15 that decides the split, is unconstitutional, illegal, and goes beyond the powers granted by the Representation of the People Act.

From the above-mentioned judgment, it is clear that the election commission has only executive powers and not legislative powers. Section 15 deals with (1) The allotment symbol in the case of a split or rival claim. (2) The authority to determine whether a political party has split or formed a rival group. Allotment of symbols under rule 5 and allotment of symbols under section 15 are two different jurisdictions. Allotment of symbols under section 5 is under the executive powers, whereas allotment under section 15 comes under the preview of legislative/judicial powers. While enacting the representation of people Act, both in 1950 and in 1951 the central legislature did not think fit to empower the election commission with either judicial powers or executive powers to deal with matters related to internal functioning of the political parties nor into any dispute/split. Even when section Part IV-A REGISTRATION OF POLITICAL PARTIES sections 29A to 29C were added by the parliament in the year 1989, the central legislature did not include the powers of the election commission to adjudicate on disputes within the parties. The reason is very simple. Dr. Babasaheb Ambedkar, speaking in the Constituent Assembly (Vol. 8, page 905) said, “as the house has affirmed and the drafting committee is removing and transferring the superintendence, direction and control of elections from the fundamental right to the separate part so as to keep the election machinery out of the control of the executive of the day." It is this essence/direction of the constituent assembly that the parliament has kept in mind while legislating the act and saw to it that the position of the election commission should not be compromised/vilified/infamed in any sense. It is for this reason that the parliament refrained from making any provision regarding the settlement of disputes within parties registered with the election commission. If these judicial powers of adjudication are granted, the fall out is also stated in the same judgment: “ If the election commission is armed with such unlimited and arbitrary power and if it ever happens that the person manning the commission shares or is wedded to a particular ideology , he could, by giving odd directions, cause political havoc or bring about constitutional crisis, setting at naught the integrity and independence of the electoral process, so important and indispensable to the democratic system. In the judgment, it is further stated that such an absolute and un-canalised power given to the commission without providing any guidelines would itself destroy the basic structure of the rule of law. It is manifest that such a disastrous consequence could never have been contemplated by the constitution makers, for such an interpretation, as suggested by the council, would be far from attaining the goal of purity and sanctity of the electoral process”. Another fact that should be noted is that the political parties are the lifeline of the outer unity of the nation. The parties are the outer symbol of the unity and integrity of the nation. If the fate of disputed political parties is left in the hand of the election commission and as above mentioned, the words of his lordship Krishna Iyer may come true. They say “this will create a constitutional despot beyond the pale of accountability; a Frankenastein monster who may manipulate the system into elected despotism." ( Mohindra Singh Gill v/s Election commission). It is thus clear that when Parliament has not legislated on the dispute of the political parties, the question of superintendence, direction and control, as well as the conduct of all elections, begins with the publication of the declaration/notification of the election process under section 14 of the R.P.P Act by the President of India and ends with the declaration of result by the returning officer under section 66 of the Act. The executive powers of the election commission can be exercised when there is no parliamentary legislation or the rules made there under the said legislation. The election commission is free to pass any order in respect of the conduct of an election. The words “conduct of election” are the most important. The election commission does not have the power nor can it lay down rules or orders or guidelines in the case of deciding the split in any party, as deciding the split is not the essence which can come in the preview of conducting the election nor can it allot the symbol without the orders of the court as to which group has the majority of decision-making persons within the party, registered with the election commission. What needs to be examined is whether the split in the recognised political party and deciding the allotment of the symbol is a necessary element in the conduct of an election. There is also no provision in the Representation of the People Act of 1951 that allows the election commission to determine whether or not a split occurred. There being no provision for allotment of symbols in the representation of peoples acts of 1950 & 1951. But the allotment of symbols to candidates in parliamentary and assembly constituencies is provided in section 5 of the Conduct of Election Rules 1961. The election commission, under its administrative jurisdiction, issued the order of allotment of symbols in 1968 for the allotment of symbols to political parties getting the percentage of votes as mentioned in Section 6 and other sections of the said order. Thus, the administrative powers of the election commission do not extend beyond the allotment of symbols. The split and allotment of symbols after the split is not a necessary element in the conduct of an election. The issuing of orders and directions by the election commission is restricted only to the conduct of elections. As the issue of deciding the spilt and allotment of symbols is not a necessary element, therefore, the order under the symbols act has to be read in consensus with the judgement given by the Supreme Court. As the election commission has only administrative powers and in section 15 of the Symbols Act 1968, it is said that the election commission has to be satisfied whether the split has taken place or not. The word satisfied has a meaning. In law, it is judicial satisfaction and not subjective or factual satisfaction, as stated in various judgments of the Supreme Court. The question of judicial satisfaction can only be ascertained by the courts empowered under the legislation prepared by Parliament. The split in a political party being of a civil nature, it is the civil courts that are competent to ascertain, in the first place, whether the split has taken place or not. And in case a split has taken place, which group commands the majority. The election commission cannot go into parties’ disputes matter of split as the election commission will compromise its independent status as each loser will accuse the commission of nepotism, corruption, impotence and favouritism and thus vilify the independent status of the commission. The election commission, while exercising power under section 15, will have to wait for the decision of the civil court. The most important thing when deciding matters related to splits in a political party is to decide whether the decision-making body has split or not. The second issue in the split is what amounts to a split. Suppose there are a hundred members in the decision-making body, and only 10 members of the decision-making body decide to split the party. Can this be called a split? This question is wide open and parliament will have to set rules as to how many members of the decision-making body are split in party. I venture to suggest that if and only if 25% of the decision-making body splits, then it should be called a split. Other-wise, it should not be considered a split in the party. The main reason for defining or laying down the perimeter is that the outer unity of the country is reflected through the existence of the political parties. If the splitting of the parties is treated with soft hands, then the divisive forces in the country will try to split the parties and thereby split not only the polity of the country but also revive the sleeping/latent religious/regional/caste-based nationalities. Once the split is decided by the civil court and a judgement is declared, then the jurisdiction of the election commission begins. Before that, there are no powers of the election commission to decide as to which splinter group will get the granted symbol. A symbol under the symbol order is granted only to the political party that registered under section 29A and secured the percentage of votes or number of elected legislative members laid down in sections 6, 6A, 6B and 6C. By this section, the hands of the election commission are tied down to the fact that without the registration of a splinter group as a political party, no symbol can be granted. Therefore, the statement made in the Supreme Court on behalf of the election commission that they have the powers to hear and decide whether a split has taken place or not should be categorically answered by the present bench of the Supreme Court in light of the question raised above.

In this matter, the question as to who can issue the whip to the elected members is also at issue. Let us not forget that the 10th schedule was added for the reason that the politics of Ayaram and Gayaram was sought to be put to rest. Sub-clause 4(g) of Section 29A representation of the People's Act 1951 only requests the names and numbers of elected members. This means that Parliament has not recognised the legislature party as a separate but integral unit within the party. The 10th schedule, paragraph 1(b), legislature party means all the members belonging to that political party in accordance with that provision. What is to be noted is that Parliament has not made the legislature party of every political party a distinct unit but has treated the legislature party as an integral part of that party. That is, the legislative party, as defined in the 10th schedule, is subject to and bound by the decision of the decision-making body, including the election/nomination of the leader of the house, as defined in rule 8(b). Since the powers to appoint are with the decision-making body, the corollary is that it has the power to withdraw the appointed leader and, in his place, appoint a new leader of the legislature party. There is no question of a constitutional issue, as the appointment and removal of the house leader is an internal matter of the party. The only questions which remain are: (1) whether at the time of removal of the earlier leader of the legislature house, it is the decision of the decision-making body, and (2) whether the appointment of the new leader is also taken by the decision-making body. This aspect is clearly within the preview of the hon’ble speaker or chairman of the house as under paragraph 8 sub-rule b and c.

Now the second issue the orders issued by the honourable governor of Maharashtra, relates to the chief Minister Mr Uddhav Thackeray to prove his majority on the floor of the house. This direction/ order of the honourable governor is in its discretionary powers under Article 163 sub clause 2 of the Constitution. Since this direction being under the discretionary powers, the said direction cannot be questioned in the court of law. This direction given by the honourable governor is absolutely legal and valid in view of the fact that it was brought to the notice of the honourable governor, that many elected members of his ruling political party are not with party. In these circumstances the action of the honourable governor is legal and valid. On the failure of the ruling party to prove the majority, there was no option than to submit the resignation letter by the then chief Minister Mr Thackeray. Upon the receipt of the letter of resignation the honourable governor had to decide as to: whether there is a breakdown of constitutional machinery. In the present case, it was very clear that against the rebel Shiva Sena elected members of the legislative assembly, an application was submitted for their disqualification by the chief whip of Shiv Sena for defying the whip. Under the 10th schedule of the Constitution, authority is given to the speaker, and in the absence of the speaker, the deputy speaker is to preside and adjudicate the application of disqualification. It is very amazing that one of the judgements of the Supreme Court has equated the Hon’ble Speaker to be a tribunal while deciding disqualification under the 10th schedule, and therefore, the Supreme Court held that they have the jurisdiction to decide whether the honourable speaker's decision is legal and valid. The Constitution speaks of a separation of powers between the judiciary and the legislature. The legislative body is a supreme body and, in a way, a controlling body of all the wings of the Constitution. But it makes it very clear that the legislative body will not interfere in the working of the judiciary. The legislative bodies have till now not crossed this Lakshman rekha. But time and again, the Supreme Court has not abided by this intention of the Constitution. Articles 122 and 212 say that the proceedings of the Parliament and state legislature shall not be questioned in the court of law. What does this mean? It means that, whatever happens in the house, the courts established by the Constitution have no power to interfere, look into it, or legally examine it. The judiciary has yet to accept that internal sovereignty does not reside in the constitutional bodies, Parliament, or the legislature. The internal sovereignty, as stated in the constitution's preamble, resides in the citizen. External sovereignty does reside in the Parliament. Once this principle of internal sovereignty and external sovereignty is accepted, then the principle of sovereignty within sovereignty becomes clear. This principal is behind articles 105, 122, and 212, which bar the court from calling the proceedings of the Parliament and legislature and even entertaining any challenge in any court of law. The reason being, within the premises of the Parliament and legislature, the sovereignty resides in the elected and nominated members of both the houses. Since both the Parliament and the legislature members are sovereign, it cannot be subjected to the outer sovereignty for the reason that, without this right/freedom, the members can’t freely, frankly and without fear discharge their duties saddled upon them, and hence the subjudication to the legislative elected sovereign is barred by articles 105, 122, and 212. The courts do have jurisdiction over the area that is outside the campus of Parliament and the legislature. Therefore, the judgement delivered in the above-mentioned matter needs to be reviewed and this principle of sovereignty within sovereignty needs to be embraced. The 10th schedule stated that the proceeding of disqualification shall be deemed to be proceeding in Parliament within the meaning of article 122 or, as the case may be, proceeding in a state legislature within the meaning of article 212. This being the constitutional position, the Supreme Court should abide by the constitutional mandate and leave the consequences to the citizens. As a result, the Supreme Court lacks the authority to intervene in the matter of the 10th schedule.

The real question is whether the direction of the governor in inviting Mr. Eknath Shinde and Mr. Devendra Phadnavis of the BJP for the formation of a government is within the parameters of the Constitution and, in particular, Article 356. After the completion of the election process and the winners are declared in the gazette notification by the election commission, the roll of the governor begins for the formation of the government. Once the government is formed and the said government is unable to function or carry out its duty, the constitution confers the duty upon the governor under Article 356 to decide for him whether the constitutional machinery in the state has broken down or not. Once the governor comes to the conclusion that the elected government cannot carry out its constitutional duties, the honourable governor, under article 356(1), is duty bound to convey to the President of India whether the constitutional machinery in the state has broken down or not. In any case, after the formation of a government and before it completes its five years of rule, a government in power resigns or, for any other reason, is unable to govern, a report under 356(1) is not only necessary but mandatory to the eyes of the President of India. It is only after receipt of advice from the President that the governor can take a decision. In this case, knowing fully well that an application for disqualification of 16 members of the ruling party Shiv Sena is pending before the learned deputy speaker, the Governor was duty bound to submit a report to the President of India. And only after getting guidelines from the President of India should the governor have acted. As the governor has acted in his own in regards to the formation of the government, the Supreme Court has to decide whether this action of the learned honourable governor is within the four walls of constitutional provision. In my opinion, the governor has the right under Article 356 (1) to use the discretionary powers vested in the governor at the time of form of government and to invite the largest party or the largest coalition, after the election is over and the results are declared in the gazette by the election commission. But once the government is established, and in between it loses its majority in the house and submits the resignation to the honourable governor, the governor is duty bound to consult and submit a report under article 356 to the President of India. Without submitting the report to the President, the governor cannot call on any other group of legislatures to form the government. It is only on the submission of the report to the President of India that the necessary direction and orders will follow. Until the advice is received from the President, the governor does not have the powers. It is only upon receipt of the advice, direction, or orders that the honourable governor can invite those parties who are directed by the President of India to form the government. In the constitutional setup, no constitutional head is supreme. The beauty of the constitution is that each constitutional head is dependent upon the other constitutional head in the exercise of its constitutional powers. In other words, the constitution has taken care that no constitutional despot is created. In the present case, what appears in the newspapers and channels is that the honourable governor has not sent a report to the President of India. Therefore, the question of waiting for directions does not arise.

Article 356 in the past has been misused by the Congress. But the present situation is totally different. I believe that we should not be captives of the past. It is true that, in Maharashtra, one government has gone, and one group from the ruling party wants to ally with the B JP in defiance of the main Shiv Sena party. Against this breakaway group, there is an application under the 10th schedule for disqualification. This is not the simple case as in Bihar, where one alliance was called off, which expressed that it was unable to continue in power, and another alliance of two or more parties was formed, claiming that it had the majority. Even in this case, what is most important is the act of the chief minister, Nitesh Kumar, informing the governor that, as a chief minister, I am unable to run the government. The question is, does this amount to a declaration by the chief minister to the governor of the break-down of constitutional machinery at that moment, and does the situation continue till the new government is formed? Yes, this is, in my opinion, a breakdown of constitutional machinery. This is the situation which is covered by article 356. In the Shiva Sena matter, a constitutional issue is involved; the disqualification of those ruling members who have defied the whip issued for attending the legislative party meeting. Secondly, another issue involved is that some legislators have expressed their no-confidence in the deputy speaker. Related to this is the issue of whether the letter of no-confidence is in proper order or not. This constitutional issue was not anticipated in the Bommai case by the Supreme Court. However, the judgement provides a broad outline of what constitutes a breakdown of constitutional machinery and what does not constitute a breakdown of constitutional machinery. Secondly, the beauty of the constitution is that none of the constitutional heads are independent. Each constitutional head is dependent on the other for the exercise of his power. The same principle applies in the present case. A constitutional convention has evolved that, after the general election, the largest party or the largest alliance is to be called for the formation of a government. The same situation does not prevail once the government in power submits the resignation to the governor. The resignation itself amounts to a declaration of the break-down of constitutional machinery. What is envisaged in article 356 is a report by the governor to the president on the evolving situation of the state and a possible solution. Every report will not lead to a proclamation of emergency. The powers of the governor under article 163(1), which are discretionary in nature, cannot be exercised once the government in power has submitted its resignation. It is the duty of the governor to appraise the situation and the nature of the proposed change to the knowledge of the President of India. What is the method? The method is article 356. For the governor's unchecked powers will result in a democratic despot in the state. To avoid this situation, the report will provide an opportunity to examine whether the legislative majority is not converted into a caste legislative majority or any other unholy alliance or any other such intention that harms the parliamentary democracy and nation. Another issue is that the constitution is silent on the subject as to the procedure to be followed once the government expresses its inability to continue in power. In most democracies of the world, a fresh mandate is ordered. This should be the policy/constitutional convention in the case of Parliament. But the same policy should not be for the states, as the constitution has provided article 356. Dr. Babasaheb Ambedkar described this article as a "dead article" in the constitution. But, it comes to life when the ruling government expresses its inability to maintain power. Once the article becomes alive, it should be allowed to play its part. It should be noted that the discretionary powers under article 163 need to be tempered. Except for article 365, which deals with the situation when the chief minister resigns due to inability to continue in government, there is no provision or direction in the constitution.

On the abovementioned analysis, the action of the Governor in inviting Mr. Eknath Shinde and Mr. Devendra Phadnavis of the BJP without the advice or direction of the President of India goes against the grain of the Constitution and hence it is illegal, void, without jurisdiction and hence unconstitutional.

Prakash Ambedkar,

President, Vanchit Bahujan Aaghadi.