Maharashtra Political Crisis Day #12: Thackeray Faction Argues Consequences Do Not Justify Illegal Acts

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, the 5-Judge Constitution Bench led by CJI Chandrachud heard Senior Advocates Kapil Sibal, A.M. Singhvi and Devadatt Kamat’s parting arguments for the Thackeray faction. They argued that the Speaker was wrongly barred from conducting disqualification proceedings, the Governor’s involvement was illegal, and that the Thackeray government must be restored. 


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.

Will Disqualification Proceedings Halt if the Speaker is Disabled From Acting?

Sr. Adv. Kapil Sibal, for the Uddhav Thackeray faction, commenced today’s arguments by discussing who could preside over sessions of a legislative assembly. He alleged that the removal notice against the Deputy Speaker (acting Speaker) was issued to delay the disqualification proceedings against the Shinde faction MLAs. In the absence of a Speaker and Deputy Speaker, a person appointed by the Governor shall preside over the House (and the pending disqualification proceedings).

Instead, the Governor wrongly ordered a floor test to assess whether former Chief Minister Uddhav Thackeray commanded the majority in the House. Holding a floor test where MLAs facing disqualification can vote would effectively skew the vote in an unfair manner. 

Can a Rival Faction Within a Party Act Independently of the Party?

Next, Mr. Sibal argued that elected members of a political party in a House or the ‘legislature party’ are not independent of the political party they belong to outside the House. Members of a legislature party are elected based on the ticket granted by the political party. As such, the leader of the legislature party and the party Whip in the House are appointed by the political party’s leadership and not the members of the legislature party. 

Countering the Shinde faction’s claims that House decisions cannot be made outside a House of legislature, Mr. Sibal questioned how the Shinde faction could appoint a new Whip whilst sitting in Assam with other rebel Shiv Sena MLAs.

On the Shinde faction’s argument that they were a rival faction within the party, and not defectors, Mr. Sibal referred to the Sarkaria Commission Report on the different groups who are consulted to select a Chief Minister. The report recognises four categories:

  1. A pre-poll alliance of political parties
  2. The single largest party in the House
  3. A post-poll alliance of political parties
  4. A post-poll coalition of political parties

‘There is no space for factions here!’, Mr. Sibal argued.

Senior Advocate Devadatt Kamat added on to Mr. Sibal’s arguments. He stated that political parties are clearly defined. While different factions may claim to be the real Shiv Sena, there was only one political party and it was headed by Mr.  Uddhav Thackeray. 

CJI Chandrachud questioned what the consequencees would be if splits in a legislature party are not recognised by the law. Would the members be disqualified or could the Governor count them as part of the total strength of the House and the legislature party?

Mr. Sibal provided a difference in perspective. He claimed that the Bench was viewing the rival members as a group instead of individuals. In a legislature, he explained, there is no concept of a group as recognised by the SC in Rameshwar Prasad v Union of India (2006). 

The issue, Mr. Sibal continued, arose not because there are no mechanisms to recognise intra-party dissent. Dissenting members of a legislature party could choose to resign and stand for election with a different political party ticket. Instead, the issue arose because Mr. Shinde wished to retain his seat in the Legislative Assembly and become the Chief Minister. 

Justice P.S. Narasimha pointed out that his line of reasoning may have a serious bearing on intra-party dissent as many political parties are run by families. Members of a political party will be unable to express a difference of opinion on party decisions. 

Dr. A.M. Singhvi: Shinde Faction’s Dissent is Unconstitutional

Senior Advocate Abhishek Manu Singhvi continued the Thackeray faction’s arguments in the noon. He began by examining the 10th Schedule, which he stated had two parts—the positive and the negative. The negative part prohibits certain actions such as giving up one’s party membership or voting against the party whip. The positive permits elected members to express intra-party dissent through certain ways—party split, party mergers, or to resign and recontest their seats. Interestingly, splits are no longer recognised by the 10th Schedule.

The Shinde faction, Dr. Singhvi continued, resorted to a different approach which defeated the purpose of the 10th Schedule. They disabled the Speaker through a mere notice, parallelly approached the Governor, and swore in a different Chief Minister with the support of a rival party. He accused the Shinde faction of not allowing the Speaker to exercise his duties since they were afraid of disqualification. If this approach is permitted by the Supreme Court, then any rival faction within any party could resort to the same tactics.

CJI Chandrachud posed the Shinde faction’s objections. They did not wish to merge with another party as they wanted to retain their identity as the Shiv Sena.  Dr. Singhvi countered by stating that the option to merge or resign always existed. The Shinde faction chose to not exercise their constitutionally available options. ‘How can you say that because of a mere disagreement, I’ll topple the government?’ he asked. 

Was The Floor Test Called by the Governor Illegal?

Sr. Adv. Kapil Sibal called Governor Bhagat Singh Koshyari’s decision to call for a floor test illegal. The Shinde faction claimed that the Governor called for a floor test as he had reason to doubt the Legislature’s confidence in former CM Uddhav Thackeray. Highlighting that the Governor’s opinion arose out of internal dissent in the Shiv Sena, Mr. Sibal contended that the Governor cannot deal with intra-party dissent.  

Dr. A.M. Singhvi argued that the Governor had no role to play under the 10th Schedule. Governors cannot involve themselves in intra-party issues. CJI Chandrachud enquired what the SC could do if the Governor’s call for a trust vote was an invalid exercise of power. The SC cannot reinstate Mr. Uddhav Thackeray since he resigned. ‘My (Mr. Thackeray’s) resignation is irrelevant’, Dr. Singhvi replied. CJI Chandrachud pointed out that if the Thackeray faction lost power because of an invalid trust vote, then it would be logical to reinstate the Thackeray government. But in this instance, Mr. Thackeray resigned without facing the trust vote. 

Dr. Singhvi countered with another question, ‘The CM’s participation will not dilute illegality… how does my (Mr. Thackeray’s) non-participation (in an illegal act) validate the act of the governor?’. ‘The consequence of an illegal origin cannot validate an illegal origin’, he concluded. 

Before the Bench reserved Judgement, Sr. Adv. Devadatt Kamat parted with a final quip. ‘The crow is also the black, the cuckoo is also black. Who is the Shiv Sena here? At the time of Judgement, it will be clear who is the real Shiv Sena’.

After 12 days of the Constitution Bench hearings, the Bench reserved Judgement.