Maharashtra Political Crisis Day#4: Sr. Adv. Sibal Argues Shinde Faction Must Be Disqualified

Disqualification Proceedings Against Maharashtra MLAs

Judges: D.Y. Chandrachud CJI, M.R. Shah J, Krishna Murari J, Hima Kohli J, P.S. Narasimha J

Today, Senior Advocate Kapil Sibal, before the CJI D.Y. Chandrachud-led Constitution Bench, argued that the Shinde faction of the Shiv Sena must be disqualified from the Maharashtra Legislative Assembly. He claimed that the Shinde faction had no defence against defection, did not enjoy the political party’s support, and that the Speaker of the Assembly acted partially.  

Previously, the SC heard arguments on whether the case must be referred to a 7-Judge Bench before deciding to hear arguments on merits before taking a call on reference. 


On June 21st, Shiv Sena party member Mr. Eknath Shinde,  went missing, along with several Shiv Sena MLAs. On the same day, Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party leader. Mr. Shinde responded claiming that he had the support of over 40 MLAs, and represented a significant portion of the party. He further said that, with a dwindling group of supporters, Mr. Thackeray was no longer the party’s chosen representative. 

On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath Shinde, for defecting from the Shiv Sena. On the same day, two independent MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal, stultifying his power to decide on Shinde’s disqualification. 

The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the disqualification proceedings before the Supreme Court on two grounds. On June 27th, 2022, a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order, staying the disqualification proceedings. 

On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra, Mr. Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged by the Thackeray faction in the Supreme Court. After four hours of arguments, on June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister Uddhav Thackeray resigned within the hour, making way for the Shinde faction to consolidate power. 

The Thackeray faction argued that the Shinde faction’s actions—disregard for the party Whip, appointment of a new Deputy Speaker, call for a floor test, and insistence of the Shinde faction’s majority—were all acts of defection.

Sr. Adv. Sibal: Legislature Party Must Follow the Instructions of the Political Party

Senior Advocate Kapil Sibal, for the Uddhav Thackeray faction, argued that a legislature party and a political party are distinct. An elected member of the House of Legislature will belong to the political party from which they were set up as a candidate. Elected political party members will comprise the House’s legislative party. Mr. Sibal explained that the legislative party follows the instructions of the political party, including the appointments of the legislative party leader and the party Whip.

Mr. Sibal argued that the 39 MLAs from the Shinde faction could not be considered members of the Shiv Sena for two reasons. First, they disobeyed the repeated instructions to attend party meetings despite Uddhav Thackeray being the uncontested leader of the Shiv Sena political party. (Mr. Sibal claimed that Mr. Thackeray’s Shiv Sena political party leadership was unanimously upheld in the national executive meeting held on June 26th, 2022). Second, the Shinde faction voted against the whip issued by the Uddhav Thackeray faction, thereby disobeying instructions from the Shiv Sena political party. Both amount to defection and consequently result in disqualification under the 10th Schedule of the Constitution.

Sr. Adv. Sibal: SC’s Order Enabled the Toppling of the Uddhav Thackeray Government

Furthering his arguments, Mr. Sibal drew attention to the SC’s June 29th Order which allowed the Maharashtra Assembly to conduct a floor test. He argued that despite the Order stating that the floor test results would be subject to the decision in this case, it enabled the toppling of a democratically elected government. According to Mr. Sibal, the disqualification proceedings against the Shinde faction must be decided before a trust vote can be conducted. He claimed that Mr. Shinde must be disqualified and, therefore, cannot hold office as Chief Minister. 

CJI Chandrachud enquired what possible outcome could be obtained if a trust vote is held now and the Speaker decides that the Shinde faction must not be disqualified. Mr. Sibal responded that the trust vote would be subject to the decision of the SC. ‘This is the problem. Judicial Order is passed and now you say, ‘What can we do?’’ he added. CJI Chandrachud clarified that the Bench must consider all aspects and test the limits of his arguments. 

Justice P.S. Narasimha pointed out that if a trust vote is held, the Speaker would be the constitutional authority to decide the result, not the SC. The Thackeray faction has also challenged the appointment of the present Speaker, Mr.Rahul Narvekar, who was appointed due to the Shinde faction’s support. Mr. Sibal retorted that if this were the case, the SC’s Order from 29th July could not have been passed. 

Sr. Adv. Sibal: Speaker Cannot Appoint Whip Without Political Party’s Instructions

Next, Mr. Sibal addressed the recognition Mr. Bharat Gogawale as the Shiv Sena Chief Whip and Mr. Eknath Shinde as the leader of the Shiv Sena in the Legislative Assembly. He questioned how the Speaker could make these decisions without the appropriate communication from the political party. He argued that the Whip is the bridge between the political party and the legislative party, and must be appointed by the political party.

CJI Chandrachud questioned if there was an authority to decide who the political party in this situation was. Mr. Sibal replied that the identity of the political party was not contested by the Shinde faction. The Shinde faction claimed that they were the Shiv Sena, and not a different political party. As such, they are subject to the decisions of the Shiv Sena political party with Mr. Uddhav Thackeray as its leader. 

Furthering his arguments, Mr. Sibal questioned the Election Commission’s (EC) recent recognition of the Shinde faction as the real Shiv Sena. Mr. Sibal pointed out that Mr. Shinde filed the petition before the EC to declare his splinter group as the real Shiv Sena while disqualification proceedings against him were pending in the House. ‘If they (the Shinde faction) are ultimately disqualified, what happens to the party symbol? Will we get it back?’, he questioned. 

Mr. Sibal concluded his arguments for the day by stating that the objective of the 10th Schedule of the Constitution is to prevent governments from being destabilised. Highlighting the stakes of the case, he stated, ‘If you uphold such an act (the Shinde faction’s alleged defection), then you are enabling the destabilising of elected governments which is a far bigger issue’. 

Mr. Sibal will continue his arguments tomorrow (February 22nd).