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The bench was 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.
Senior Advocate Kapil Sibal on the second day of arguments before the Supreme Court in the Shiv Sena political crisis case argued that 40-odd members sitting in Assam converted themselves into the party, which is illegal. They destabilize the government and have their own Chief Minister, Sibal Added.
A Constitution Bench of Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha was hearing the overall merits of the case concerning the Maharashtra Political Crisis (Shiv Sena Rift).
Sibal referred to the note to the Speaker of 2019 Assembly to show that Uddhav Thackeray had been elected as the party head and Eknath Shinde as the group leader.
Justice Shah raised the issue of whether resolutions were not passed in the party meeting and in the legislative party meeting. Sibal responded by stating yes. The Legislative party has to choose the leader, he said.
Ultimately a group leader has to be chosen. They call members to say who they would like to be the leader, Sibal said.
He added that members of the legislature cannot pass such a resolution and remove the whip.
Given the above, CJI Chandrachud said, "So, if you like it or not, at that time Uddhav Thackeray was the party, members don't matter. Thackeray was acting as a party." CJI Chandrachud also said that it seems that the party nominates the person and the defection lies in voting or abstaining, on the direction of the party.
Pointing out the issues, Sibal submitted that "one issue is Nabam Rebia and the second one is whether X number of members form a separate identity and say we'll not listen to the party. That your Lordships has to decide." "Here, the hard facts are, their vote topples the Government," Sibal added.
Concluding the above, CJI Chandrachud said that the party is supreme and the members are only elected. They are the only group of legislators and can't determine the party's decision.
Additionally, Sibal argued that the political party relates back to the original party and not the legislative party. 38 members cannot be a political party, they are the members of the legislative party.
"There is an umbilical cord between the political party and the legislative party. The actions of the legislative party cannot be against the objective of the political party," Sibal added.
Over the issue of differences in the party, Sibal argued that "there was not even a single statement before June that their (Eknath Shinde faction) voices are not being heard. Then he (Shinde) goes to Assam, not to cleanse his conscience but for some bigger issues".
Due to paucity of time, the court couldn't hear the matter any further and Sibal will continue with his arguments tomorrow morning.
Earlier, Sibal had argued that there was not even a single statement before June that their voices are not being heard. Then he goes to Assam, not to cleanse his conscience but for some bigger issues.
It may be noted that recently the Supreme Court had decided that it will hear the overall merits of the case concerning the Maharashtra Political Crisis (Shiv Sena Rift) and then decide whether to refer the matter to a larger bench.
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 the 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 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 the Uddhav Thackeray faction to submit a brief note on his contention of referring the matter to a seven-judge bench.
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 the 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
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