The unanimous judgment of the five-judge constitution bench of the Supreme Court of India, delivered on May 11, 2023, over the political tussle between two factions of the ruling Shiv Sena party in Maharashtra, one of India's richest states, has left a few questions unanswered and some not so correctly answered. These include 'What actually is 'defection?' Is it confined only to the narrow definition under the Tenth Schedule of the Constitution or can it include something larger than this?

 Another question that has been answered by them wrongly is what constitutes 'objective material' for the governor of the state to consider before asking an incumbent chief minister to seek a vote of confidence in the state legislature.

The brief facts on both points are that Shiv Sena political party contested the last elections to Maharashtra Legislative Assembly in alliance with their decades-old political comrades BJP ( Bhartiya Janata Party). Out of a total of 288 seats in the Assembly, BJP won 106 seats, Shiv Sena won 56 seats,  Nationalist Congress Party ( NCP) 53 and Congress 44. Besides these16 from some smaller parties and 13 Independents were also declared elected.

After the results were declared, the Shiv Sena publicly raised a controversy that before the elections a senior BJP leader, Home Minister  Amit Shah, had given his word that irrespective of the number of MLAs of both BJP and Shiv Sena who get elected, if the alliance got a majority and formed the government in the state, all ministerial berths would be shared equally and each party will hold the chief minister's post for two and a half years each. In other words, Shiv Sena publicly claimed that though they won only 56 seats against BJP's 106, in accordance with a solemn pre-poll promise given by Amit Shah, whose authority was next only to Prime Minister Narender Modi, they deserved 50 per cent of power in the new government.

Undeniable facts 

The BJP denied any such pre-poll promise by Shah or anybody else. There was no settlement. The differences became so wide that instead of settling for anything minus the post of the chief minister, the Shiv Sena decided to part company from their decades-old political ally and shook hands with their very old political enemies-- Congress and NCP --and formed a coalition government with them.  The coalition was christened Maha Vikas Agadi (MVA). Uddhav Thackeray, son of Shiv Sena's late founder,  the charismatic firebrand Bal Thackeray, was sworn in as chief minister. It is not a secret that Maharashtra's youngest and four times ex-chief minister and master strategist, 82-year-old Sharad Pawar, the president and founder of NCP, played a not insignificant role in cementing this new alliance. It is also no secret that Congress and NCP have been sworn political enemies of the Hindu nationalist BJP and Shiv Sena both for decades right from the time of Bal Thackeray. Both these parties have always taken pride in proclaiming themselves as "Hindu parties" who played an active role in the demolition of Babri Masjid in the 1990s in Ayodhya in Uttar Pradesh and the Congress and NCP have always taken a diametrically opposite ideological positions as secular parties who are against what they described as "communal parties" like BJP and  Shiv Sena.

In the above scenario, the undeniable facts are that two parties having almost identical ideologies contested elections in a pre-poll alliance. And then one of them joined hands with their sworn political enemies and formed a government. Though under the present anti-defection law, also called the Tenth schedule of the Constitution,  it is clearly not defection in the political sense. But the question is should it not amount to defection? An entire party gives up its basic ideology and joins hands with its sworn political enemies, is it not worse than a few MPs and MLAs switching sides to partake in the spoils of a government? I don't know whether politicians will ever show so much farsightedness & whether ruling and opposition parties of that time can ever come to a unanimous view because such a law will be in favour of some and against some at all times. it can never be in favour of all of them. If it cannot be done thru the legislative route, the only other route will be innovative judicial interpretation even if it amounts to 'judicial legislation' which has been done a few times in 75 years of independence by the Supreme Court.

Five circumstances before governor 

On page 122 the judgement listed five circumstances that were before the governor when he directed the then Chief Minister Uddhav Thackeray to seek a vote of confidence in the state assembly to prove that he still enjoyed majority support. The five circumstances listed are:

1. Resolution dated June 21 2022 signed by 34 members of the Shiv Sena legislative party ( out of a total of 56  members of SS) saying that they were dissatisfied with the Shiv Sena for forming an alliance with NCP and Congress parties.

As stated herein above,  NCP and Congress were always totally opposed to Shiv Sena and BJP right from the time of the formation of Shiv Sena by Uddhav's late father Bal Thackeray in the year 1966.

2. Letter sent by the then leader of Opposition in Maharashtra Assembly Devender Fadnavis who headed the largest single party in the state assembly BJP  having 106 out of 288 members in the assembly.

3. Letter was written by 7 independent MLAs requesting the governor to ask Thackeray to prove a majority in the House

If the above claims were to be believed, it would mean that out of 288 total members of the Assembly, 147 ( 106 of BJP, 34 Shiv Sena rebels & 7 Indeorndents) which was beyond the 50 per cent mark of 145 were probably against Thackeray. The governor did not decide the question of majority in Raj Bhavan as done by some governors in the past but only asked the CM to prove his majority on the floor of the House.

Cheap politics and questionable judgement

On the one side was the fact of a claimed majority and on the other the issue of defection-- whether the group of 34 MLAs who had almost clearly raised the banner of revolt against founders' family heirs presently heading the party should be the first disqualified for having defected or rule of majority should prevail. In the present Maharashtra case, the Supreme Court seems to be preferring the former against the latter giving preference to disqualification under the anti-defection law rather than the rule of the majority.

The Supreme Court also failed to appreciate that Thackeray's Shiv Sena was also playing politics. Although the resolution of June 21, 2022, was signed by 34 MLAs and later this number increased to 39, Thackeray's faction moved petitions for the disqualification of only 16 rebel MLAs and not all 34. This was obviously done keeping Assembly arithmetic in view.  If supposing all 34 MLAs it was allowed, the strength of the House would have been reduced from 288 to 254. BJP has its own 106 MLAs and 7 Independents having already come out in the open against Thackeray's MVA government,  it was split and came within striking distance of victory by 'buying' some more Independents or MLAs of small parties. With only 16 disqualifications, the halfway mark would have been 136 -- more difficult to achieve. In para 106 the judgment notes that " the resolution on which the Governor relied did not contain any indication that the MLAs wished to exit from the MVA government." How could they be explicit? The moment they expressed their desire to exit from the government in which their own party was a partner, would they not expose themselves to assault if disqualification?

There was clearly visible cheap politics on all sides but the Supreme Court seems to prefer the politics of the Thackeray faction rather than the legislative majority. I think it was not right.

We should never forget one thing -- the so-called high constitutional offices created by the Constitution of India like the governor, speakers and other presiding officers have never in the last 75 years acted impartially. They always toe their party line favouring the party which appointed/ sponsored them. The defection law can never be implemented as per the spirit of the law. There are dozens of examples of this in our current history. If the problem of defection has to be rooted out completely, it may need effective 'judicial legislation.

(The author is a former legal correspondent. Views are personal.)