Maharashtra Political Crisis: The Strategies And Tactics At Play

The ongoing political crisis in Maharashtra, triggered by Eknath Shinde’s rebellion in the Shiv Sena, has brought Chief Minister Uddhav Thackeray’s Maha Vikas Aghadi (MVA) coalition government to the brink.

A sainik has become a senapati, and, if the press is to be believed, then Shinde has the numbers to sink his former boss’s political ambitions.

Thackeray probably senses this, which is perhaps why one of his tactics has been to make long, callow, self-pitying pleas in public, for the rebels to return to his fold. It has not worked. Instead, it has needlessly reinforced an image of clueless incompetence, aggravated by dejected incapacity. Oblivion is now staring Thackeray in the face.

The threat is equally existential for his principal coalition partners, Sharad Pawar’s Nationalist Congress Party (NCP) and the Congress, as it portends not just a return of their nemesis, the Bharatiya Janata Party (BJP), but an irremediable weakening as well, of their hard-won hold over India’s richest and most industrialised state. And with that, vital control over the country’s financial capital, too, would inevitably be lost in the soon-expected polls to Mumbai Corporation.

Maharashtra is one of the two top political prizes (Uttar Pradesh is the other), and Mumbai Corporation isn’t far behind on that list. If the BJP were to win both, and there is now a good chance that they might, courtesy Shinde’s rebellion, the political impact would make a tsunami seem like a gentle swell.

Consequently, the MVA is also playing the hard game. Veteran Congress firefighter, Kamal Nath, who had to resign from the chief ministership of Madhya Pradesh in 2020 to a somewhat similar upheaval, is camped in Mumbai. The NCP’s key is the Deputy Speaker, who belongs to their party (the post of speaker of the Maharashtra assembly is presently vacant). And the Shiv Sena’s Sanjay Raut chillingly says that they will win this fight, be it on the floor of the assembly or on the streets.

So, what are the strategies and tactics being employed by the two sides to ensure that the numbers remain in their favour?

As the table below shows, the effective house strength at present is 285, since two NCP members of legislative assembly (MLAs) are in jail and one Sena MLA passed away in May 2022. That means the floor strength is 284, since the Deputy Speaker cannot vote except in case of a tie, and the majority mark is 143.

The Shinde camp, ensconced in Guwahati, is aiming for at least 38 Sena legislators to declare themselves as the real Shiv Sena. This is to avoid disqualification under the Tenth Schedule of the Constitution, commonly known as the anti-defection law, which doesn’t get invoked if at least two-thirds of the party’s current strength breaks away in one go.

To this end, they have written to the Bombay High Court, the Deputy Speaker, and the Governor of Maharashtra, declaring Eknath Shinde as the Sena’s leader in the house and rebel MLA Bharat Gogavle as the party’s Chief Whip. Both are key posts, since their directives and whips would shield their MLAs from disqualification, while allowing them to disqualify the Thackeray camp MLAs. Ironically, it would also be a surreal turn of events if MVA-Sena MLAs are disqualified by rebels for being rebels!

The Shinde camp also includes some independent MLAs and those of small parties. The group’s total is estimated at between 42-50 by different news reports.

In the ideal case, this group would first vote against the MVA in a floor test and then ally with the BJP to form a new government.

But matters are not so simple or straightforward. Pressure tactics have been applied, with the offices of two rebel Sena MLAs being vandalised. At the same time, the MVA is also trying to get a number of rebels disqualified. This has three prongs:

First, efforts are on to disqualify 12 Sena MLAs who cross-voted for the BJP in the recent Legislative Council elections (which is what triggered the ongoing crisis in the first place).

Second, efforts are also on to prevent the rebels from electing Shinde as the leader of the Shiv Sena in the Maharashtra assembly and Gogavle as its Chief Whip.

Third, efforts are on to disqualify at least 35 of the Sena rebels. If that happens, then even if the strength of the House goes down, the MVA will retain a slender majority, as the BJP will be unable to cobble together requisite numbers from independents and others (see here for scenario simulations).

This is where things get really interesting.

On 24 June, Shinde formally served the Deputy Speaker with a no-confidence notice. This was promptly followed up by another formal letter to the Deputy Speaker, signed jointly by two independent MLAs. It is a well-drafted letter with a curious legal point, which has the potential to upset the MVA’s apple cart.

The independents’ letter states that the Deputy Speaker is barred from adjudicating on the disqualification of Sena MLAs, since a notice of no-confidence has already been served upon him.

The legal basis of this statement is a Supreme Court judgment from 2016. A five-judge constitution bench held that it is constitutionally impermissible for a Speaker to adjudicate upon a disqualification petition under the Constitution’s Tenth Schedule while a notice of resolution for his own removal from the office of the Speaker is pending.

(This was when 20 Congress MLAs rebelled against Chief Minister Nabam Tuki of Arunachal Pradesh. They were disqualified by Speaker Nabam Rebia. The Governor arbitrarily advanced the next assembly session. The President's rule was imposed. And all of that was overturned by a historical judgment of the Supreme Court.)

As per this judgement, the Deputy Speaker of the Maharashtra assembly is not allowed to disqualify the rebel Sena MLAs, since a no-confidence notice has already been served upon him.

So, is that it? Is it game over for the MVA?

No, not yet, because we can be sure that the legal eagles of the MVA will argue that disqualification proceedings were initiated before the notice of no-confidence was served, and that, therefore, the disqualification process should be allowed to continue.

Or, they might even argue that the notice of no-confidence itself is illegal. This means that any sort of certitude is still as tenuous as breaking news is ephemeral.

To compound the confusion, one interpretation of the law is that the Shinde camp can’t avoid disqualification unless it merges with another party. According to this scenario, the Tenth Schedule contains no provision for the independent existence of a breakaway faction, even if the strength of that faction is more than two-thirds of the original party.

Speaking to the press, Shinde faction spokesperson, Deepak Kesarkar, offered an innovative workaround to this constraint: why, he asked, would he want to merge his faction with another party when his faction was the Shiv Sena.

With 38 out of 56 MLAs on date, perhaps, Kesarkar had a point. To quote: “We are Shiv Sena, we are elected on Shiv Sena symbol, and we remain as Shiv Sena. We are more than two-thirds.”

Now, reports have emerged that the Shinde faction has formally named itself as the “Shiv Sena Balasaheb.” How will that play out — on the floor of the assembly or in the courts? We don’t know, since case law says that such an act is tantamount to an MLA voluntarily giving up his or her membership to the original party (Rajendra Singh vs Swami Prawad Maurya in the Supreme Court, 2007). But, maddeningly, the merits of that case are different from the current situation, which means that this, too, is a grey area.

Further, and intriguingly, how many readers remember that the Deputy Speaker, Narhari Zirwal, was part of the NCP faction under Ajit Pawar, which aided the BJP and Devendra Fadnavis to form a government for three days in 2019 before it fell? Who can rule out the dynamics of that event coming into play now?

We may, therefore, conclude that it is this degree of uncertainty that has deterred all involved parties from furiously demanding an urgent floor test or approaching the courts. The situation is more complicated than generally understood and will take some more time before the MVA, the rebels, the opposition, and indeed the Governor’s office know where they each stand in this whirling scheme of things.

But this much is clear: the Shiv Sena has split viscerally, the MVA government’s days are numbered, a resurgence of the BJP is on the cards, and the Congress’s Kamal Nath will be left with a lot more on his face than the farcical gulal he sported for Holi last year.

Also Read: Maharashtra: Options, Confusions And Scenarios