The Supreme Court judgment, ruling on a batch of
petitions arising out of the intra-party rift in the Shiv Sena, made a detailed
analysis of the Tenth Schedule of the Constitution (or the anti-defection law)
to draw a distinction between a legislative party and a political party.
A five-judge bench, headed by Chief Justice D.Y.
Chandrachud, said the Tenth Schedule would become unworkable if the term
'political party' is read as the 'legislature party'.
The bench -- also comprising Justices M.R. Shah,
Krishna Murari, Hima Kohli, and P.S. Narasimha - said that the Parliament, in
its constituent capacity, was conscious of the necessity of not allowing
anti-defection laws to stifle intra-party dissent and the freedom of expression
of legislators.
"When the anti-defection law seeks to curb
defections from a political party, it is only a logical corollary to recognize
that the power to appoint a whip vest with the political party," it said.
The bench observed that to read the term 'political
party' as 'legislature party' would be contrary to the plain language of the
Tenth Schedule. It said that to hold that it is the legislature party which
appoints the whip would be to sever the figurative umbilical cord which
connects a member of the house to the political party.
The bench said "that a whip be appointed by the
political party is crucial for the sustenance of the Tenth Schedule. The entire
structure of the Tenth Schedule which is built on political parties would
crumble if this requirement is not complied with. It would render the
provisions of the Tenth Schedule otiose and have wider ramifications for the democratic
fabric of this country. Thus, the courts cannot be excluded by Article 212 from
inquiring into the validity of the action of the Speaker recognising the
whip".
The bench said the Speaker, on taking cognizance of
the resolution passed by the faction of Shiv Sena Legislative Party (SSLP) led
by Eknath Shinde, did not attempt to identify which of the two persons who were
nominated (Sunil Prabhu or Bharat Gogawale) were authorised by the political
party.
"In a contentious situation such as this, the Speaker
should have conducted an independent inquiry based on the rules and regulations
of the political party to identify the whip authorised by the Shiv Sena
Political Party."
"The Speaker must only recognise the Whip
appointed by the political party. The decision of the Speaker recognising Mr.
Gogawale as the Chief Whip of the Shiv Sena is illegal because the recognition
was based on the resolution of a faction of the SSLP without undertaking an
exercise to determine if it was the decision of the political party".
The bench noted that the leader of the legislature
party is the link between the political party and the legislative Assembly.
"If the interpretation of the respondents is accepted, the action of the
leader condoning an MLA's prohibitory conduct would not reflect the voice of
the political party and would instead reflect the voice of the legislature
party. This would be contrary to the manner in which the Tenth Schedule is
intended to operate. The manner in which the Tenth Schedule would then operate
would not effectively prevent or provide a solution to the constitutional sin
of defection," said the bench.
The top court concluded that the political party and
not the legislature party appoints the whip and the leader of the party in the
House. "Further, the direction to vote in a particular manner or to
abstain from voting is issued by the political party and not the legislature
party," it said.