Disqualification of Maharashtra MLAs Day #4: Shinde Faction Questions Whether the SC is the Right Forum

On August 3rd 2022, a Bench comprising Chief Justice N.V. Ramana, and Justices Krishna Murari and Hima Kohli heard the challenge to a slew of issues in the Maharashtra political crisis. This includes the disqualification proceedings filed against the MLAs of both Shiv Sena factions, the election of BJP’s Rahul Narvekar as the Speaker, the appointment of a new Chief Whip, the floor test for the Shinde Government and Mr. Shinde’s request to the Election Commission to declare his faction as the ‘real’ Shiv Sena. 

Senior Advocates Kapil Sibal and Dr. Abhishek Manu Singhvi argued for the Thackeray camp of the Shiv Sena. Senior Advocates Harish Salve, Mahesh Jethmalani and Solicitor General Tushar Mehta argued for Mr. Eknath Shinde and the rebel MLAs.

In the previous hearing, the Bench had asked the parties to submit a list of issues so that the Court may have a better understanding of the case at hand. Further, this would help the Bench decide if the matter required the consideration of a larger Bench. 

Today, the Bench asked the parties to explain their key issues. The Thackeray faction argued that the rebel MLAs had no protection under the Tenth Schedule—their conduct indicated defection, even though they did not actively separate from the Shiv Sena. The Shinde faction argued that the rebel MLAs were merely replacing a leader who no longer enjoyed the support of the party—this was an exercise of inner-party democracy. 

Is the Supreme Court the Correct Forum to discuss the Case?

Senior Advocate Harish Salve arguing for the Shinde faction pointed out that the Speaker is meant to hear the disqualification proceedings initiated against the 14 MLAs of the Thackeray faction. Approaching the Supreme Court directly, out of a lack of trust in the Speaker, is not a legitimate reason to bypass procedure. The challenge must first be heard before the Speaker, the Bombay High Court, and finally the Supreme Court. 

Chief Justice Ramana appeared displeased. He pointed out that it was in fact the Shinde faction that had first approached the Court challenging the disqualification proceedings initiated against them on June 24th, 2022. Now, the same faction was arguing that the Supreme Court was not the right forum. 

Mr. Salve offered an explanation. Initially, the Shinde faction approached the Court to stay the disqualification proceedings because the Deputy Speaker had a pending no-confidence motion against him when he issued the proceedings. Mr. Salve emphasised that this time, the Thackeray faction was approaching the Supreme Court challenging a disqualification proceeding issued by a Speaker who was elected by a majority of the house. He issued the disqualification proceedings while enjoying the confidence of the House. This petition is not maintainable before the Court.

Mr. Sibal: The Conduct of the Rebel MLAs Indicates Defection

Reading out Para 2 of the Tenth Schedule of the Constitution, Mr. Sibal, arguing for the Thackeray faction, stated that the paragraph specifically refers to the entire political party—not the legislature party—in determining whether members have defected. Para 2 explains the grounds on which a member is considered to have defected from a party. Mr. Sibal stated that since the Shinde faction went to Surat, Gujarat, their actions have indicated a move away from the political party. He pointed out that since June 21st, 2022, the rebel MLAs have consistently acted against the Shiv Sena. They missed a meeting called by the Shiv Sena, filed a motion to disqualify the Deputy Speaker, and appointed a new Chief Whip as well as a new party leader. Therefore, despite their claim that they still belong to the Shiv Sena, the MLAs appeared to have defected from the political party. 

Mr. Salve for the Shinde faction argued that anti-defection was not a tool that a leader, who has lost the confidence of his party, can use to ‘lock in his party members’. The Shinde faction merely changed their party’s leadership, as the majority no longer supported Mr. Thackeray. This action was not ‘anti-party’, but an exercise of the right to ‘intra-party dissent’. Mr. Salve insisted that the premise of the petitions—that the Shinde faction defected from the group—is itself incorrect. Therefore, the issue of defection that the Thackeray faction is arguing has no bearing in this case.

The Bench requested Mr. Salve to submit a clear list of issues by August 4th, 2022. The Bench will hear the matter then.