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Having put Uddhav Thackeray’s chief ministership in the dock with a full-blown revolt, Shiv Sena rebel Eknath Shinde has now set sights on gaining complete control of the party. However, Shinde’s road to supremacy is fraught with complex challenges that will test his patience and his ability to keep his flock intact, suggests former Chief Election Commissioner SY Quraishi. In an exclusive interaction with Financial Express Online, Quraishi delves into the possibilities and breaks down the complexities involved in a scenario where the Election Commission of India may have the final word.
Here are edited excerpts from the interview:
Q. How do you see the anti-defection law playing out in the Eknath Shinde case?
A: Originally, the decision was that if at least one-third of the party defected, it wouldn’t be called defection. Later on, the one-third rule was dropped and if at least two-thirds of the MPs/MLAs from a party become another group, they can merge with another party. In this case, there is hardly any question of Eknath Shinde and the ‘rebel’ Shiv Sena MLAs of merging with the BJP — that is unlikely, and will be suicidal for them. They will totally get subsumed by the party.
Q. What are the options available for the Eknath Shinde camp then?
A: The route they are likely to take was a route taken by Samajwadi Party’s Akhilesh Yadav against his father Mulayam Singh Yadav when Akhilesh had the majority. The Election Commission (EC) ruled that Akhilesh is the Samajwadi Party. This is the likely scenario, as far as I see. With a majority of MLAs with him, Shinde is likely to fight for the ‘real’ Shiv Sena. Shinde can go to the EC and say that he has 38 out the 55 MLAs and claim that he is the ‘real’ Shiv Sena. The EC will subsequently pass a ruling after going through the merits of the case. Further, Shinde also has the option to say ‘recognise my faction’ – for example, Shiv Sena 1 or Shiv Sena 2.
Q. If Eknath Shinde does approach the EC on this, how long will it take for him to form a separate party or claim the ownership of the original Shiv Sena?
A. The whole process takes at least 30 to 40 days, sometimes it can stretch up to six to eight months, as you have to give notice to the other party concerned for their response. It is a quasi-judicial process, and lawyers from both sides will be roped in. When Shinde will apply to the EC claiming the support of majority members within the party, he needs to submit the names and signatures of the MLAs supporting him. The EC will also authenticate the signatures, and check whether they are genuine or bogus. That is a time-taking process. It is up to Eknath Shinde to claim whatever name he wants for his faction — whether it’s, for example, Shiv Sena (Shinde) or anything else.
Q. It seems like a long-drawn affair. Any chances of Eknath Shinde getting a new party before at least a month?
A: If the elections were due, like it happened in the Akhilesh Yadav case as UP Assembly elections were around the corner — in that case, the EC passes an interim order. Like in this case, the EC can pass an interim order saying, for example – ‘You’re Shiv Sena A, and you’re Shiv Sena B’. In that case, they will freeze the symbol of Shiv Sena, and the two separate factions will now get two different symbols. Since the original symbol is disputed, hence its frozen. So, after the EC recognises the two factions, then they can go ahead and fight the elections against each other. However, the EC passes an interim order only if elections are due in the state. Then, the EC has to decide quickly on the matter, hence the interim order.
In this case, both parties will put forth their respective claims before EC, while providing a list of signatures of MLAs supporting their factions. There is a possibility that common signatures might appear in the respective lists provided by both camps. So, the whole process is a time-taking one. If there was a compelling reason to pass a quick judgement, if an election is round the corner, then the EC passes an interim order.
Q. What will be the role of the Speaker and the process for disqualification…
A: The Speaker of the Assembly or the Election Commission has the authority to disqualify the members in this case. The party can expel the members. It can subsequently write to the Speaker to disqualify the members under anti-defection law. The Speaker will see the totality of the case, while giving a decision. The Speaker will see if the MLAs were put under pressure to join the Shinde camp and talk to each and every legislator before coming to a decision — he has to be satisfied that they are not under any threat or compulsion.
Q. In the absence of a full-time Speaker, Deputy Speaker Narhari Zirwal, who is also from the NCP, will be the deciding authority on this matter. What if Eknath Shinde is not happy with Zirwal’s ruling in this matter?
A: If he is not satisfied, Shinde can always approach the High Court or Supreme Court. Then the court will either hear the matter or it can also send it to the EC.
Q. Shiv Sena MP Sanjay Raut said that they are initiating a disqualification process against 16 MLAs…
A: According to me, they have sent the (names of) 16 die-hard supporters of the ‘rebel’ camp for disqualification. If all the 38 legislators’ names were sent for disqualification, then the possibility of others coming back to the ‘Uddhav’ camp diminishes. So, they must have distinguished between the die-hards and the ones on the fence. In a way, the ‘Uddhav’ camp believes that, the rest sitting on the fence might return after getting intimidated by the disqualification move. Also the question of a whip asking ‘rebel’ MLAs to return doesn’t apply in this case, because there was no legislative activity involved.
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