Maharashtra Political Crisis Day #9: Shinde Faction Argues SC Cannot Speculate on Hypothetical Circumstances

Disqualification Proceedings Against Maharashtra MLAs

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

Today, the CJI D.Y. Chandrachud-led Constitution Bench continued to hear arguments from the Shinde faction of the Maharashtra Shiv Sena. Senior Advocate N.K. Kaul supplemented his arguments from yesterday by citing several judgements. Sr. Adv. Harish Salve argued that it was perilous for the SC to decide the matter based on assumptions.


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.

Mr. Kaul: There Is No ‘Artificial Distinction’ Between a Legislative and a Political Party

Reiterating his arguments from yesterday, Mr. Kaul stated that firstly, expressing dissent did not amount to splitting from the party. Second, there is no distinction between the party in the legislature and the larger political party, as they go hand in hand with each other. Third, the Speaker has the primary authority in matters of disqualification, not the SC. Last, the Governor’s decision to order a floor test was correct.

Mr. Kaul cited several cases to support his arguments. He stated that in Balachandra v BS. Yeddyurappa (2011), it was held that the political party is not distinct from the legislative party. The Court also held that internal party dissent was the bedrock of democracy and was not a valid reason for disqualification on the ground of defection under the 10th Schedule of the Constitution. Further, from the case of Speaker Haryana Vidhan Sabha v Kuldeep Bishnoi (2012), it is clear that the Court has no jurisdiction to pass Orders on subjects where the Speaker is the primary authority. 

Mr. Salve: SC Cannot Make Decisions Based on Assumptions

Mr. Salve argued that the fact remains that after the Governor ordered the floor test, Mr. Uddhav Thackeray resigned and therefore, the floor test did not happen. Now, asking the SC to make a decision based on speculation that if the floor test had taken place, Mr. Thackeray would have won is not permissible.

Mr. Salve cited the Judgement in the case of S. R. Bommai v Union of India (1994). He argued that in this case, the SC held that even the Speaker of the House or the Governor of the State could not make decisions based on speculations. They had to order a floor test to determine who had the majority. In the current scenario, the petitioners are asking the judiciary to make decisions based on speculation that even the Governor did not have the power to do. 

He stated that nobody could judge the minds of the MLAs and know for sure what would have happened. Therefore, the SC could not make any decisions based on such presumptions.

Mr. Salve: The Nabam Rebia Judgement Lays Down a Code of Conduct, Does Not Take Away Speakers Power

Mr. Salve argued that if a Speaker abuses his constitutional power, it is no doubt a ground for judicial review. However, he interpreted that in the Nabam Rebia Judgement (2016) , the SC did not hold that the speaker would cease to have power if disqualification proceedings are pending against him. Rather, it only held that if disqualification proceedings are pending against the speaker, his actions would be tested. 

Therefore, in the present case, just because there were disqualification proceedings pending against the Speaker, it did not mean that he could not make decisions about the disqualifications of MLAs in the House.  

The Bench will continue to hear the Shinde faction as well as the rejoinder by the Thackeray faction on next working Tuesday (March 14th, 2023).