The Supreme Court on Thursday delivered the much-awaited verdict on the petitions related to the in Shiv Sena that led to a change of regime in Maharashtra last year.
The Constitution Bench headed by Chief Justice of India D.Y. Chandrachud observed that the 2016 Nabam Rabia case, which held that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal was pending, required reference to a larger bench.
The Apex Court laid down the procedure, directing that until the reference was decided; the Speaker has been given the authority to decide whether or not to go ahead with the disqualification petitions, subject to judicial review.
The Constitution Bench, while noting that a Whip was appointed by a political party and not a legislative party, rejected the contentions made by the Eknath Shinde faction on this count.
It said the Speaker was aware of the two factions of Shiv Sena, but did not make any further enquiry.
The Constitution Bench held the appointment of Shinde-camp’s Bharat Gogawale as new whip was illegal.
It said the disqualification petitions before the Speaker cannot be linked with proceedings before the Election Commission of India (ECI).
The defence of split was not available anymore and therefore, it was for the Speaker to recognise the real legislative party inside the House.
It pointed out that the Governor has no objective material to conclude that Shinde and his MLAs were to exit the Mha Vikas Agadi Alliance (MVA) and the Governor couldn’t have asked for a Floor Test.
The CJI ruled that this cannot mean that the MLAs had withdrawn support from the Floor of the House. Nothing showed the members withdrew support and communication showed it disagreed with some policy decision of the Udhhav Thackeray government. Whether there would be deliberation or will merge with another party was unclear. Therefore, the Governor was wrong to conclude that Uddhav Thackeray had lost majority.
The Supreme Court had earlier reserved its verdict on the matter on March 16.
a bunch of petitions related to the rift within the Uddhav Thackeray and Eknath Shinde groups of the erstwhile Shiv Sena party, which led to a change in the government in Maharashtra in July last year.
The five-Judge Constitution Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice P.S. Narasimha had commenced hearing the matter on February 14. Both the parties concluded their arguments today.
Representing the Thackeray faction, Senior Advocate Kapil Sibal contended that this was a moment in the history of this Apex Court, where the future of democracy would be decided as without the intervention of the Supreme Court, the democracy would be in danger and no government would be allowed to survive.
As per Sibal, the Maharashtra Governor had interfered with the internal dispute of a party. A Governor was not supposed to look into the dispute within a party. He was only required to deal with a Legislature Party. The Governor could not have picked up Eknath Shinde and told him to become the Chief Minister.
He argued that neither the Governor nor this court could encroach on the functions of the Speaker. The Speaker’s work should continue independently. The Constitution did not give recognition to any such group, even if it was a minority.
When a candidate was seeking votes from the public during an election, he was doing so on the symbol of the party and not in his personal capacity. In the relationship between the legislature and the political party, the political party has primacy, he added.
The CJI told Sibal that he claimed that there has been a split in the party, which has not been recognised. However, there was a group of MLAs which said that they had withdrawn their support. Now they will have to face disqualification.
The CJI asked Sibal whether the Governor could say by looking at the number of MLAs that this conduct also affected the strength of the House?
Sibal replied in negative. He contended that such a thing used to happen when there was no Tenth schedule. It was like going back to a time when there was no Tenth Schedule.
The CJI asked Sibal whether he meant that the Governor could not demand a trust vote by ignoring the provisions of the Tenth Schedule.
Sibal said the Tenth schedule should be forgotten for the time being. The Governor could not ask for a vote of confidence on the basis of any faction. The call for a trust vote was based on an alliance. Sibal said that this mistrust was for the vote, which got Eknath Shinde the Chief Minister’s post.
Responding to arguments put forward by Senior Advocate Abhishek Manu Singhvi, also appearing for the Uddhav Thackeray group, the CJI noted that merger meant that the political identity of Shiv Sena had been lost. He told Singhvi that as power the lawyer, if there were differences, then a person must leave the party, however, the Shinde faction has said that it did not want to leave the party as they were all Shiv Sainiks.
He asked Singhvi, “How can you even demand the restoration of Uddhav Thackeray government?”
Justice Shah, while responding to the demand made by Singhvi, asked how could a Chief Minister who resigned without facing the trust vote, be restored to his post?
The CJI said if the Thackeray faction had lost the trust vote, then it could have been a logical thing. He told Singhvi that Uddhav Thackeray was not ousted by the government, rather, he did not face the trust vote.
Singhvi argued that Thackeray resigned as the Governor had called the Floor Test illegally. Even today, the illegal government was running. There was no election here, he further argued.
The first petition in the matter was filed by Maharashtra Chief Minister Eknath Shinde in June, 2022, challenging the notices issued by the then Deputy Speaker against the rebels under the 10th schedule of the Constitution over alleged defection.
The Thackeray camp later filed petitions against the decision of the Maharashtra Governor to call for a trust vote, the swearing-in of Eknath Shinde as Chief Minister of Maharashtra with the backing of BJP and the election of new Speaker.
After hearing arguments from both the Shinde faction and the Thackeray camp over a range of issues today, the Apex Court reserved its verdict.
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