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Shiv Sena Issue: Delving into the verdict

The article highlights the Supreme Court’s judgment on the Shiv Sena issue, addressing the legality of the Governor’s floor test, the role of alternative government formation, the validity of whips and disqualification, and the interpretation of the Tenth Schedule   ( Source: The Hindu,16th May 2023)

Shiv Sena Issue: Delving into the verdict
What is the Context?

The Supreme Court of India’s judgment on the Shiv Sena issue pertains to a legal dispute. It involves the Maharashtra Governor’s actions and the validity of whips issued by different factions within the Shiv Sena political party. The judgment addresses the legality of the Governor’s floor test and the disqualification of MLAs who defied party whips.

Conclusion on Floor Test

The Supreme Court deemed the floor test called by the Maharashtra Governor as illegal. The Court criticized the Governor for lacking objective material to justify the test, emphasizing that the Governor should refrain from involving himself in inner-party disputes. Although Uddhav Thackeray’s resignation as Chief Minister before the floor test prevented his reinstatement, the Court affirmed that the Governor’s decision to call for the test was legally incorrect.

View on Alternative Government

The Supreme Court recognized the Governor’s constitutional responsibility to explore the formation of an alternative government when the incumbent government falls. It acknowledged the Governor’s authority to invite a member of the same political party as the resigned Chief Minister to form the government. However, the Court expressed concern about the Governor’s “illegal” act of calling for the floor test. As a result, it triggered the Chief Minister’s resignation and led to the formation of an alternative government. The Court emphasized the significance of addressing the impact of this illegality, suggesting the Governor’s involvement in the inner-party conflict.

Validity of Whips and Disqualification

The Supreme Court clarified that the political party, rather than the legislative party, holds the authority to appoint the whip and the legislative party leader. It ruled that the Speaker of the Assembly should be responsible for deciding disqualification petitions. The Court also highlighted that in the event of a party split, two factions emerge, and no single faction is considered the party.

Interpretation of Tenth Schedule

The Supreme Court clarified that under the Tenth Schedule, there is always an original political party serving as the reference point for determining disqualification. The explanation to paragraph (2)(1) of the Tenth Schedule states that elected members belong to the political party that nominated them as candidates. Accordingly, all members of the faction led by Uddhav Thackeray belong to the original political party, the Shiv Sena. Thus, the original political party alone has the authority to issue a valid whip, and those who defied Uddhav Thackeray’s whip may face disqualification.

Clarity on Factional Split

The Supreme Court’s judgment lacked clarity on the issue of factional splits within the political party. While acknowledging that the deletion of Paragraph 3 of the Tenth Schedule implies that both factions cannot be considered the original political party, the Court did not specifically address the explanation to paragraph (2)(1) that clarifies party affiliation and the authority of the original political party to issue the whip.

Conclusion and Way Ahead:

In conclusion, the Supreme Court’s judgment highlights the illegality of the floor test called by the Maharashtra Governor and the need to avoid interfering in inner- or intra-party disputes. The Court recognized the Governor’s constitutional responsibility to explore alternative government formation but expressed concerns about the consequences of the Governor’s “illegal” actions. Moving forward, it is crucial for political parties, constitutional authorities, and the judiciary to ensure a clear and consistent interpretation of laws and provisions regarding party affiliation, whip validity, and disqualification. This will promote clarity, prevent confusion, and foster a more stable and transparent political environment.

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