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Synopsis

Senior Advocate Neeraj Kishan Kaul appearing for the Eknath Shinde faction submitted before the Supreme Court today that the impression is being given that it was the murder of democracy. "However, when the leader has lost the majority, how can he (Uddhav Thackeray) be allowed to act as the Chief Minister even for a single day?" Kaul added.

The constitution bench of the Supreme Court is hearing the matter pertaining to the Maharashtra political crisis referring to the varied disputes between the two factions of Shiv Sena led by Uddhav Thackeray and Maharashtra Chief Minister Eknath Shinde.

The constitution bench comprises the Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha.

Senior Advocate Kaul today submitted, "We are the ShivSena, we have an overwhelming majority. We are not talking about the free flow at all, we are talking about an internal dissent. It is the essence of democracy."

While referring to the Nabam Rebia Judgment CJI Chandrachud said that in Maharashtra's position, it allows the free flow of human capital from one party to another. 

To which, Kaul responded by stating that the politics of defection cannot be decided in the Legislative Assembly and one has to go back to the political party.

Additionally, Senior Advocate Harish Salve also appearing for the Eknath Shinde faction submitted that it was an issue of an anti-defection law and not an anti-dissent law. Thackeray was to prove the floor majority and later Sunil Prabhu moved the court to stay the session, which was refused, and looking at the situation Thackeray resigned, Salve added.

Furthermore, Salve argued before the bench that "when the Chief Minister himself moved away, how would the people have trust vote? All these questions don't arise as there was no trust vote".

Additionally, by the time Eknath Shinde was elected, the political situation had changed, people from the one side had shifted to another side, Salve added.

CJI Chandrachud then said, "The Uddhav Thackeray faction knew that without the consideration of the disqualification petitions, the fate of the trust vote was sealed."

To which, Salve responded by stating that the disqualification plea was of 16 members and they had 58 members. "First, Thackeray resigned and then Shinde became the Chief Minister and it's not the other way around," Salve added.

Salve concluded his arguments in the first half of the day today, whereas, Kaul is to continue with his arguments. The Court has asked Kaul to answer the bench as to whether prohibition is attached when the motion is under consideration, post lunch.

It may be noted that when the case was taken up last month, a CJI Chandrachud led bench was informed by Senior Advocate Kapil Sibal, that he wished to highlight the need for referring the case to a larger bench in light of the case "Nabam Rebia & Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1" (Nabam Rebia case).

Notably, in the Nabam Rebia case, the top court had held that the constitutional purpose and constitutional harmony would be maintained and preserved, if a Speaker refrains from adjudication of a petition for disqualification under the Tenth Schedule, whilst his own position, as the Speaker, is under challenge. This would also, allow the two provisions [Article 179(c) and the Tenth Schedule] to operate in their individual constitutional space, without encroaching on the other.

The current petition(s) concerning the situation which unfolded in Maharashtra, in the wake of Eknath Shinde's rebellion against the Maha Vikas Aghadi (MVA) government then led by Chief Minister Uddhav Thackeray raise important constitutional questions relating to interpretation of Schedule X of the Constitution pertaining to disqualification, as well as the powers of the Speaker and the Governor and the power of judicial review thereof.

A bench comprising the then Chief Justice NV Ramana, Justices Krishna Murari and Hima Kohli have already formulated 11 questions for consideration of a constitution bench.

In November last year, the Constitution bench had granted four weeks' time to the two factions of Shiv Sena led by Uddhav Thackeray and Maharashtra Chief Minister Eknath Shinde to file their compilations of arguments, index, case law references etc.

Then, when the matter was taken up on the next date in December, the Supreme Court had listed the case for today and had asked senior lawyer Kapil Sibal appearing for Uddhav Thackeray faction to submit a brief note on his contention of referring the matter to a seven judge bench.

Background: 

In June last year, Shinde had moved the Supreme Court seeking a direction to the Deputy Speaker to not take any action in the disqualification petition moved by the Sena, which had, in turn, sought disqualification of Shinde and other MLAs. 

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

Sunil Prabhu, the erstwhile Chief Whip of the Shiv Sena 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 last year. The Supreme Court, however, refused to stay the floor test in Maharashtra on June 30. 

After the hearing in Supreme Court on June 29 last year, Bharat Gogawale, the Shiv Sena MLA from Mahad, filed an application seeking suspension of Shinde and other 'delinquent MLAs' from the membership of the Maharashtra Legislative Assembly as an interim measure, till a decision on their disqualification petitions. The vacation bench, however, refused the urgent listing of the plea. 

Shinde took oath as the Chief Minister of Maharashtra on June 30. Subsequently, on July 3, a floor test was conducted and Shinde 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, the SC orally asked the Maharashtra Legislative Assembly Speaker to not decide matters pertaining to the disqualification of the Maharashtra Legislative Assembly members till the petitions 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: Subhash Desai Vs Governor Maharashtra