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Synopsis

Senior Advocate Kapil Sibal on the first day of arguments in the Shiv Sena political crisis case argued that one cannot destabilize an elected government. "If acts are upheld by judicial order, then defection is promoted. It'll have far-reaching consequences on the Country," 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 submitted that, "Bulk defection has to be prevented. If it's allowed by the Court then any government will be easily toppled."

It was argued that nothing in the 10th schedule of the Constitution of India should be interpreted to legalise or give credence to defection as the objective of the act is not for unprincipled defection. It is not a split in the legislative party but in the political party.

Sibal raised the issue of whether the other side can say that there is a split in the party. MLAs are elected on the party symbol, there is an umbilical cord attached to the political party. Furthermore, Sibal argued that "When there is a split in a party, which faction would get the party symbol? What is the role of the Election Commission? They cannot decide when the matter is pending before the Court."

Sibal also alleged that nowadays the Governors have acted far beyond their constitutional responsibilities. It is unfortunate that the Governors are actively involved in the politics of the Country. Sibal made the above-mentioned argument while raising the issue, "How can the governor swear in someone without knowing if they have the majority, and then he resigns, this shows how constitutional functionaries are acting off lately."

Sibal also submitted that in this case, a legislator majority is treating itself as a political party and passing orders for its own benefit. "How does a majority in a legislative assembly become the Shiv Sena," Sibal added.

Given the above, it was argued that there is a symbiotic relationship between the legislative party and the political party, they (the Eknath Shinde faction) cannot vote against the intention of the political party. The direction has to be taken by the Political party.

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 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