Being in majority does not legitimise the constitutional sin of defection: Dr.Abhishek Manu Singhvi appearing for Uddhav camp tells Supreme Court

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Singhvi submitted that the gameplay of the Shinde camp is to not just run the government but also to gain legitimacy by obtaining orders from the Election Commission of India and to delay the current proceedings.

Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the Uddhav Thackeray camp in the batch of petitions pertaining to the Maharashtra political crisis, argued before the Top Court today that the constitutional sin of defection is so great that even the majority cannot legitimise it.

Arguments by Uddhav Camp:

Kapil Sibal, Sr. Adv, representing Uddhav camp, opened the arguments today. He argued that the anti-defection law as per the tenth schedule of the constitution, will not apply, if  2/3rd members of a political party merge with another party or form a new party. He submitted that this was the only defence available to the Shinde camp.

It was further argued that the 2/3rd members, cannot claim to be the original party under the given circumstances and the stand of Shinde camp, that they are the original camp is not sustainable under law. Sibal submitted that when the Shinde camp was called for a meeting, they went to Surat and subsequently to Guwahati, from where they wrote to the deputy speaker that they do not have confidence in him.

Sibal submitted that by their conduct, the Shinde camp has given up the party membership and cannot claim to be original party. It was argued that once a person is elected, whip acts as the link between the political party and the legislature party. Sibal argued that even though the Shinde camp claims to be the majority, it is not recognised by the tenth schedule and any kind of split is violative of the tenth schedule.

Dr.Abhishek Manu Singhvi, Sr. Adv, appearing for the Uddhav camp, argued that the only defence available to Shinde camp is merger. He said, “The constitutional sin of defection is so great that even the majority cannot legitimise it."

Singhvi submitted that the gameplay of the Shinde camp is to not just run the government but also to gain legitimacy by obtaining orders from the Election Commission of India, thereby delaying the current proceedings. He alleged that the present speaker has not acted on the petitions for disqualification filed by the Uddhav camp but has acted on complaints by the Shinde camp.

Arguments by Shinde camp:

Senior Advocate Harish Salve, appearing for Eknath Shinde, argued that anti defection law is not a weapon for a leader who has lost the majority within the party to hang on to power, by locking up its members. More on Salve's argument here

Senior Advocate Neeraj Kishan Kaul, appearing for the MLAs in Shinde camp, submitted that the Supreme Court is being asked to bypass all other constitutional bodies. To this, the CJI said, “You (Eknath Shinde) came to the court first. The petition was entertained despite the Karnataka High Court Judgment, which said that the High Court has to be approached.” Kaul replied to this stating that the MLAs were constrained to move the Supreme Court owing to the threat. He added that the protection was ordered to be given to them as a result of this. The CJI however asked Kaul not to mix up the issue of protection and constitutional issues before the court.

Kaul submitted that an application has been moved by Uddhav camp before Supreme Court to restrain the EC from hearing petitions on the party symbol, however the subject matter is exclusively the jurisdiction of the election commission. He argued that disqualification proceedings before the Supreme Court and the issue pertaining to the party symbol are unrelated.

Mahesh Jethmalani, Sr. Adv, appearing for the Shinde Camp argued that the legal propositions of the Uddhav camp are based on the theory of deemed disqualification. He submitted that the new government was formed not because Uddhav was defeated in a floor test, but because he resigned. It was Jethmalani’s argument that if a Chief Minister refuses to take the floor test, it is presumed that he does not have the majority.

Jethmalani argued that the present speaker, was elected on the floor of the house by a majority and the decision of a full house cannot be reviewed judicially. He submitted that a constitutionally elected speaker must decide on the disqualification and not the court.

Solicitor General’s questions of law:

Solicitor General of India Tushar Mehta put forth certain questions of law for the court’s consideration. He clarified that he was assisting the court as the canvass of constitutional questions arising in the dispute is broad.

  1. Whether the action of the Governor in inviting a person to form the Government, who claimed and then demonstrated a confidence of the majority members of the House, consisting of the parties having an undisputable pre- poll alliance and who does not suffer from any disqualification in law, can be subjected to judicial review.
  2. Whether the Xth Schedule is framed to curb the evil of unprincipled defection and not to be misutilised to annihilate intra-party democracy and healthy discussion and not to curtail freedom of expression by elected members within the party.
  3. Does the Xth Schedule permits en mass defection of the entire political party defying the wish of the electorate and prohibit even majority members of such defected party to exercise their freedom of expression against such defection within a party itself?
  4. Does the Xth Schedule offends Article 19(1)(a) if it is read to curb expression of views democratically within the fold of the party against the confidence or no-confidence of leaders of such political parties?
  5. The questions of disqualifications are to be adjudicated based upon mixed questions of law and facts by a constitutional functionary i.e. the Speake who is expected to know on-ground political situation. Can the constitutional court, either under Article 226 or under Article 32 read with Article 142, directly take up such adjudication by passing the constitutional functionary itself?

The bench, headed by Chief Justices of India and consisting of Justices Krishna Muruai and Hima Kohli have asked Senior Counsel Harish Salve to re-draft their submissions countering the petitions filed by the Uddhav camp by tomorrow. The matter will now come up for hearing tomorrow (August 4, 2022) 

In June, Eknath Shinde had moved the Supreme Court seeking direction to the Deputy Speaker to not take any action in the Disqualification Petition moved by Shiv Sena, seeking disqualification of Shinde and other MLAs.

A vacation bench of Justices Surya Kant and Pardiwala had extended the time granted by Deputy Speaker to  Eknath Shinde and other MLAs to file their response in their disqualification petition. 

Sunil Prabhu, the erstwhile Chief Whip of Shivsena and a Member of the Maharashtra Legislative Assembly had moved the Supreme Court under Article 32 of the Constitution challenging the Governor's communication to hold a floor test on June 30, 2022. The Supreme Court, however, refused to stay the floor test in Maharashtra on June 30, 2022. 

After the hearing in Supreme Court on June 29, 2022, Bharat Gogawale, the Shivsena MLA from Mahad, filed an application seeking to suspend Eknath Shinde and other 'delinquent MLAs' from the membership of the Maharashtra Legislative Assembly, as an interim measure, till their disqualification petitions are finally decided. The vacation bench, however, refused the urgent listing of the plea. 

Eknath Shinde took oath as the Chief Minister of Maharashtra on June 30, 2022. Subsequently, on July 3, 2022, a floor test was conducted and he emerged successful. His camp moved a plea for disqualification of Shiv Sena MLAs, who did not vote for Shinde at the floor test. 

On July 11, 2022, Supreme Court orally asked the Maharashtra Legislative Assembly Speaker to not decide matters pertaining to the disqualification of the Maharashtra Legislative Assembly Members till the petitions that were filed by the delinquent MLAs of Shiv Sena challenging the disqualification proceedings are pending before the Apex Court. The Uddhav camp has also challenged the decision of the Governor to appoint Shinde as the Chief Minister. 

Case title: Sunil Prabhu Vs Principal Secretary, Governor of Maharashtra and a batch of petitions