Maharashtra Political Crisis Day #10: Shinde Faction Defends Restricting Speaker’s Disqualification PowersDisqualification Proceedings Against Maharashtra MLAs
Today, the 5-Judge Constitution Bench led by Chief Justice D.Y. Chandrachud heard concluding arguments by the Shinde faction. Senior advocates Harish Salve, Neeraj Kishan Kaul and Mahesh Jethmalani defended the floor test called by the Governor, claimed that MLAs with pending disqualification proceedings against them must be allowed to vote, and that the Speaker’s powers on disqualification must be restricted.
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.
Can MLAs With Pending Disqualification Proceedings Participate in the House?
Senior Advocate Harish Salve, for the Shinde faction, defended the floor test called by Governor Bhagat Singh Koshyari on June 29th, 2022. The objections from the Thackeray faction, he claimed, were purely speculative. The SC must not embark on a political journey of ‘what would have happened’ if a trust vote had actually occurred instead of a floor test. Mr. Salve also disagreed with the Thackeray faction’s claims that the rebel MLAs must not be allowed to participate in the trust vote since they had disqualification proceedings against them.
Justice M.R. Shah was unconvinced by the argument. ‘Saying that disqualification should not count from the date of initiating proceedings is too much’ he stated. Senior Advocate Neeraj Kishan Kaul clarified that until the Order of disqualification was passed, MLAs must be allowed to exercise the rights and functions of an MLA. If not, without a timeline for the Speaker to decide on disqualification, a minority government would be able to continue indefinitely. Additionally, if an MLA is not allowed to participate in the House while disqualification proceedings against them are pending, then their constituency would go unrepresented.
Senior Advocate Mahesh Jethmalani furthered Mr. Kaul’s arguments. He claimed that the Speaker would be barred from deciding the disqualification of MLAs if a notice for the Speaker’s removal was given. ‘So this period when a Speaker is barred from deciding on a disqualification petition commences the moment a notice is given?’ asked CJI Chandrachud. Mr. Jethmalani replied in the affirmative.
Does the Shinde faction represent the real Shiv Sena?
Mr. Kaul argued that the Shinde faction never claimed that they split from the Shiv Sena or merged with another party. In fact, the argument that they must be disqualified for not attending the June 21st, 2022 party meeting would not hold good since the Shinde faction never received a notice to attend the meeting.
Mr. Jethmalani added that once it was clear that the Shinde faction had organisational majority, the Speaker must desist from deciding disqualification until the Election Commission decided which faction represented the real political party. ‘You are saying he (Speaker) has no jurisdiction at all?’ CJI Chandrachud questioned. Mr. Jethmalani agreed.
Addressing the Thackeray faction’s arguments that the Governor could not call for a floor test, he argued that it was the duty of the Governor to do so if he was convinced that the ruling government lost the majority in the House. Justice Hima Kohli enquired how many times a Governor had acted in such a manner before. Mr. Kaul did not give a number. However, he stated, ‘Even if (it was) not done before, what is wrong with it if it’s within the permissible use of power by the Governor?’
Justice P.S. Narasimha pointed out that there is only a thin distinction between a split in the party and the claim that the Shinde faction was the real Shiv Sena. The Speaker may decide on the validity of either outcome, but what would be the contours of making such a decision, he questioned. Further, if the Speaker decides that the case does not involve a split in the party, then the SC would still be able to hear the matter on judicial review.
Solicitor General Tushar Mehta will argue on behalf of the Governor tomorrow (March 15th)