Camp Shinde, based in Guwahati, aims for at least 38 Sena lawmakers to declare themselves as the real Shiv Sena. This is to avoid disqualification under the Tenth Schedule of the Constitution, commonly referred to as the Anti-Defection Act, which is not invoked if at least two-thirds of the party’s current strength detaches at one time.
To this end, they have before the Bombay High Court, the Vice President and Governor of Maharashtra, declaring Eknath Shinde as the leader of the Sena at home and the rebel MP Bharat Gogavle as the party’s chief whip. Both are key positions, since their guidelines and whips would protect their MPs from disqualification, while allowing them to disqualify MPs from Thackeray’s camp. Ironically, it would also be a surreal turn of events if the MVA-Sena deputies were disqualified by the rebels for being rebels!
The Shinde camp also includes some independent MPs and those from smaller parties. The total of the group is estimated between 42 and 50 by different reports.
In the ideal case, this group would first vote against the MVA in a ground test and then ally with the BJP to form a new government.
But things are not so simple or straightforward. Pressure tactics were applied, the offices of two rebel deputies of Sena having been vandalized. At the same time, the MVA is also trying to have a number of rebels disqualified. This has three parts:
Firstare set to disqualify 12 Sena MPs who voted for the BJP in the recent Legislative Council elections (which triggered the current crisis in the first place).
Secondefforts are also being made to prevent the rebels from electing Shinde as leader of the Shiv Sena to the Maharashtra assembly and Gogavle as chief whip.
Third, efforts are underway to disqualify at least 35 of Sena’s rebels. If this happens, then even if the strength of the House diminishes, the MVA will retain a slim majority, as the BJP will be unable to muster the required numbers of independents and others (for scenario simulations).
This is where things get really interesting.
On June 24, Shinde officially served as vice president with a notice of censure. This was quickly followed by the Vice President, signed jointly by two independent MPs. This is a well-crafted letter with a curious legal point, which has the potential to upset the MVA’s apple basket.
The letter from the independents says the vice president has no right to rule on the disqualification of Sena deputies because a notice of censure has already been served on him.
The legal basis for this statement is a 2016 Supreme Court ruling. A five-judge constitution bench ruled that it is constitutionally impermissible for a president to rule on a motion for disqualification under the Tenth Schedule of the Constitution while a Notice of Resolution for his own removal from the office of President is pending.
(It was then that 20 Congress MPs rebelled against Chief Minister Nabam Tuki of Arunachal Pradesh. They were disqualified by President Nabam Rebia. The governor arbitrarily brought forward the next session of the assembly. president’s rule was imposed. And it was all overturned by a landmark judgment of the Supreme Court.)
In accordance with this, the Deputy Speaker of the Maharashtra assembly is not allowed to disqualify rebel Sena MPs as a notice of censure has already been served on him.
So is that it? Is the game over for the MVA?
No, not yet, because we can be sure that the legal eagles of the MVA will argue that the disqualification process was initiated before the notice of no confidence was served and therefore the disqualification process should be able to continue .
Or, they might even argue that the censorship notice itself is illegal. This means that any sort of certainty is always as tenuous as breaking news is fleeting.
To compound the confusion, one interpretation of the law is that the Shinde camp cannot avoid disqualification unless it merges with another party. Under this scenario, the contains no provision for the independent existence of a splinter faction, even if that faction’s strength is greater than two-thirds of the original party.
to the press, Shinde faction spokesman Deepak Kesarkar offered an innovative workaround to this constraint: why, he asked, would he want to merge his faction with another party when his faction was the Shiv Sena.
With 38 MPs out of 56 so far, Kesarkar may have been right. To quote: “We are Shiv Sena, we are elected on the Shiv Sena symbol, and we remain as Shiv Sena. We are more than two thirds.
Now, reports have emerged that the Shinde faction has officially named themselves “Shiv Sena Balasaheb”. How will it be – on the floor of the assembly or in court? We do not know, since case law says that such an act is equivalent to a voluntary abandonment by a deputy of his membership in the original party (Supreme Court, 2007). But, infuriatingly, the merits of this case are different from the current situation, which means this too is a gray area.
Also, and curiously, how many readers remember that the vice president, , was part of the NCP faction under Ajit Pawar, which helped the BJP and Devendra Fadnavis form a government for three days in 2019 before it fell? Who can rule out the dynamics of this event coming into play now?
We can therefore conclude that it was this degree of uncertainty that deterred all parties involved from furiously demanding an urgent ground test or going to court. The situation is more complicated than commonly thought and will still take some time before the MVA, the Rebels, the Opposition and even the Governor’s Office know where they each stand in this swirling scheme of things.
But all of this is clear: the Shiv Sena has split viscerally, the days of the MVA government are numbered, a resurgence of the BJP is on the cards, and Congress’s Kamal Nath will find himself with much more to his face than farce. gulal there for Holi last year.
Also Read: Maharashtra: Options, Confusions and Scenarios