Why Ajit Pawar바카라�s Coup In NCP Is Not As Legally Sound As Eknath Shinde바카라�s Shiv Sena Mutiny, How Court Might See It Differently

The recent events in Maharashtra reverberate with echoes of the turbulent events of 2022.

In 2022, Shiv Sena leader Eknath Shinde had rebelled along with the majority of the party MLAs against the then-Maharashtra Chief Minister and party leader Uddhav Thackeray. The party was split into two factions and Shinde became the CM of Maharashtra after toppling Thackeray바카라�s coalition government with Congress and Nationalist Congress Party (NCP).

Earlier this month, like a sudden crack in fragile porcelain, the NCP found itself split into two factions like Sena. The political cunning gave Maharashtra its third Deputy Chief Minister in the form of Ajit Pawar.

Tracing the quick and sudden revolt by Ajit Pawar

More analogously, Ajit Pawar seems to be treading an eerily familiar path as Eknath Shinde.

Shinde, opting for a safer legal route, had refrained from devising a new party or merging with the Bharatiya Janata Party (BJP). Cunningly manoeuvring in a bid to wrest control of the Sena바카라�s political heft at the behest of the BJP succeeded. Ajit, nephew of NCP patriarch Sharad Pawar, similarly stakes his claim on commanding the 바카라�original NCP바카라�.

Demonstrating the original party is half the victory in conquering the anti-defection law. An exemption from it requires three elements:

Two-thirds of the MLAs from the party, when it was whole, must severe themselves and support the rebel faction.
This fraction of two-thirds must represent the original party.
It must merge with another party present in the legislature.

Shinde ensured more MLAs than required before cleaving the Sena. In parallel, the Election Commission (EC) declared his group as the authentic party while deciding the allotment of the Sena바카라�s symbol. While disqualification proceedings languish in the Speaker바카라�s chambers, the likelihood is favourable for Shinde. Albeit, the victory before the EC now hangs in the balance, awaiting scrutiny by the Judiciary. Shinde, however, may bask in the intervening triumph by calling his wing the 바카라�Shiv Sena바카라�, as long as both cases remain unresolved until the next elections in 2024. The younger Pawar appears to be engineering a similar case.

Altered situation, revised norms

While the situations of Shinde and Ajit might appear to be same, there exist inevitable variations that Shinde did not encounter. These emanate from the Supreme Court바카라�s decision in May.

The SC, grappling with Thackeray바카라�s resignation, declared its inability to reinstate a legal government. Yet, it altered the standards for discerning the 바카라�original party바카라�.

The Apex Court declared that originality need not be ascertained through a mere numerical assessment of each faction. The finality of such figures is fickle if they face disqualification proceedings. Instead, the appropriate test involves assessing the factions바카라� adherence to the party constitution. Ajit바카라�s adherence to the party바카라�s ideals was always flimsy, evidenced best by his attempt to rebel in 2019. He was promptly punished by way of dismissal from the sole party-post he then occupied.

Of greater significance is that the Sena saga witnessed Thackeray바카라�s defeat before the EC due to a crucial factor. During the debate on the retention of symbols, the EC discovered that the Sena lacked a consensus-driven atmosphere. An amendment to the Sena바카라�s party constitution concentrated decision-making powers in the hands of the party president. If a party lacks a democratic constitution with ample room for deliberation, the legal test to determine the original party becomes the 바카라�majority test바카라�. A disqualification proceeding sorts the applicable legal test accordingly.

In the present case, the NCP바카라�s internal document bears no such ills. While Sharad Pawar has held the presidency for a considerable time, the party does not suffer from the same authoritarianism as the Sena바카라�s amended constitution enabled. All decisions require ratification by the NCP바카라�s working committee as opposed to the party chief바카라�s alone (Chanchal 2023). Even more decisive is the rebel Pawar바카라�s claim that he officially secured a majority within the NCP, well before his mutiny (TW Web Desk 2023). This highlights the inner democracy within the NCP. Thus, the application of the 바카라�adherence test바카라� becomes decisive, which demonstrably disfavours the nephew.

With the originality pre-condition missing, the exemption from anti-defection evaporates. However, the anti-defection rule will only dismantle the recent revolt if it applies. Vitally, the Supreme Court has made the rule trigger-happy, leaving it poised to strike without hesitation.

Previously stout, the legal bar entered the fray only when the insurgency was borne out of a 바카라�split바카라�. This split occurred when the original party was ruthlessly hacked down the middle, as opposed to wilful shedding as a party strategy. Only in the former case defection was recognised, since, it denoted a fundamental overhaul in the party바카라�s identity. This is precisely why it was a sound legal strategy for the likes of Shinde to deny a split and present themselves as custodians of the original party. However, the revision in May introduces a pivotal change: now, the shift in identity occurs even if both factions claim to be authentic and deny any schism. So while both factions of the NCP deny a split, the law on defection shall apply regardless. As proposed, the odds favour the elder Pawar when the test indeed transpires.

The potential judicial intervention in Pawars바카라� feuds

There exists another variable that may not directly dissipate the rebels바카라� defence from anti-defection, but is vital nevertheless. In May, the Supreme Court declined to assume the Speaker바카라�s jurisdiction over disqualification proceedings, citing the absence of extraordinary circumstances.

In Pawar바카라�s case, compelling exigencies exist. To begin with, Shinde바카라�s disqualification hearings have not moved an inch, contradicting the directions in May. Moreover, the Speaker seems to have passed a pre-judgment on the absence of any split. The court may weigh all this crucially and short-circuit the Speaker바카라�s office this time around. Furthermore, Pawar바카라�s manoeuvring comes as the Maharashtra Assembly바카라�s term is closer to its end. Following precedent, the Court may now deny any interim benefit of the doubt to Pawar바카라�s MLAs and instead determine it promptly.

Ajit바카라�s ascent to number two position in the state may ultimately fail due to these factors. Despite his efforts to retain the NCP바카라�s symbol, the disqualification proceedings may precede them and ruin his coup.

(Yash Sinha is a Delhi-based advocate. Views expressed are personal.)