[Shiv Sena Vs. Shiv Sena] Tenth Schedule is not for stifling legitimate dissent: SG Mehta submits before Supreme Court

Solicitor General Tushar Mehta while making his submissions today in the matter pertaining to the Maharashtra political crisis told a Constitution bench of the Supreme Court that the tenth schedule of the Constitution of India does not aim at stifling legitimate dissent.

"The tenth schedule is not for stifling legitimate dissent, but for anti-defection... I am the speaker, I have the power to remove and I will decide the electoral college, his is not the purpose of the schedule...", SG told a CJI Chandrachud led bench.

SG Mehta further argued that a person elected in the house, as a leader of the legislature party, has a duty to earn their confidence throughout.

At the beginning of his submissions, SG told the constitution bench comprising the Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha that India is a multiparty democracy, and we live now in the era of alliances, which is of two types, pre-poll and post-poll.

In a pre-poll alliance, as in the instant case, between BJP and Shiv Sena, the leader of the stable, took the stable away and formed government with the opposition, the court was further told.

SG further argued that Nabam Rebia is the correct law and no reference was required to a larger bench to review it.

In the first half today, Senior Advocate Neeraj Kishan Kaul appearing for the Eknath Shinde faction had submitted before the Supreme Court 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 had added.

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

To which, Kaul had 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 had 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 had added.

Furthermore, Salve had 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".

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).

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