A Constitution Bench of the Supreme Court will pronounce on Thursday morning its verdict on a set of petitions arising out of the Uddhav Thackeray-Eknath Shinde split in the Shiv Sena and the subsequent change of government in Maharashtra in 2022.
The bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha is set to pronounce the verdict.
WHAT IS THE CASE?
In June 2022, rebel Shiv Sena MLAs, led by Eknath Shinde, expressed dissatisfaction with the leadership of Uddhav Thackeray, the then chief minister of the Maha Vikas Aghadi (MVA) alliance government in Maharashtra.
Sixteen MLAs went ‘missing’ and skipped a meeting of the legislature party. The chief whip of the party, who was nominated by Uddhav Thackeray, initiated disqualification proceedings, with notices issued to the rebel MLAs by the then deputy Speaker. At the same time, the rebel MLAs sent a letter to initiate motion of no confidence against the deputy Speaker, who rejected the plea, claiming that it was not sent through ‘identified channels’.
The rebels then approached the Supreme Court against the disqualification proceedings, where a three-judge bench granted extension of time to the rebels to respond to the notices.
In the meantime, the Shinde camp MLAs left Maharashtra and approached the Governor with allegations of grave threat to life and property. The Governor asked Uddhav Thackeray to call a trust vote. The CM, however, resigned just before the trust vote, and moved the Supreme Court questioning the Governor’s action.
The pleas before the Constitution Bench, initiated by the Uddhav faction, have sought quashing of the July 22 floor test which put Eknath Shinde on the CM’s chair. They have also sought declaration that the MLAs would be “deemed disqualified” from the date of the “anti-party activity” and therefore Shinde could not have been made the CM.
The petitions by the Shinde faction have raised concerns regarding the power of the assembly Speaker to consider disqualification proceedings even though the 2016 Nabam Rebia judgment of a five-judge bench held that a Speaker cannot consider such proceedings if no confidence proceedings against him/her are pending before the House.
The Uddhav faction’s plea had argued that Eknath Shinde’s appointment as the CM “violates Article 164(1-B) of the Constitution and that the provisions for prevention of defection serves no purpose, as defectors were being rewarded for committing the constitutional sin of defection”.
WHAT IS THE COURT EXPECTED TO CONSIDER?
The matter involves complex questions of constitutional interpretation, anti-defection law under Schedule 10 of the Constitution, powers of the Governor, powers of the Speaker, the role of the Election Commission and the Supreme Court itself.
One major issue before the court was also whether it needs to re-look or clarify the Nabam Rebia 2016 verdict, amidst arguments by the Uddhav faction that it “crippled the Speaker” and was used by rebel MLAs to “try and escape anti defection proceedings”.
During the course of hearing, the Constitution Bench had initially suggested that it would only consider the issue of reference to a larger bench, but after three days of hearing, it decided to consider all issues on merits, as the Nabam Rebia issue would be connected to the facts and issues in the state politics.
The court then heard the matter over nine days in February and March, reserving verdict on March 16, 2023.
The court is now expected to answer the various questions raised on the powers of Speaker to consider disqualification proceedings, powers of Governor, the correctness of calling a trust vote, deemed disqualification of rebel MLAs, as well as contours of ‘anti-party activities’, and the jurisdiction of the Supreme Court itself in dealing with such issues.
During the hearing, the bench had also questioned whether the Governor could have called for the floor test following the letter by the rebel MLAs.
“Floor test of a government cannot be called merely on the ground of differences between MLAs of a ruling party as it can topple an elected government,” the court had commented during the hearing.
It had further observed that the “Governor of a state cannot lend his office to effectuate a particular result”.
The bench had also questioned why the “happy marriage” of the Shiv Sena-NCP-Congress alliance broke down midway.
“Three years you cohabited in an alliance, and one fine day, you decided for divorce. The rebel MLAs became ministers in another dispensation. Governor has to ask these questions to himself. What were you fellows doing for such a long time and now suddenly you want a divorce?” the bench observed.
The bench also, however, raised the question on whether it can disqualify the rebel MLAs, since Uddhav Thackeray had resigned from the CM post without facing the floor test in the Assembly. “How can the court reinstate the chief minister, who did not even face the floor test,” the bench had commented while closing the hearing in the case.
A battery of eminent lawyers appeared in the case. Senior advocates Kapil Sibal, Abhishek Manu Singhvi and Devadutt Kamat with Amit Anand Tiwari appeared for the Uddhav Thackeray group, while senior advocates NK Kaul, Mahesh Jethmalani and Maninder Singh represented the Shinde faction.
Solicitor General Tushar Mehta was representing the Governor of Maharashtra.
The court, in its verdict, could also lay down the course of politics for the future, if it chooses to go into the issue of defection law reform or the role played by the Governor.
During the hearing, while making submissions on the ‘deemed disqualification’, senior advocate Kapil Sibal had called for an overhaul of the anti-defection law, deeming it “toothless”.
Sibal also argued that the restriction imposed by the Nabam Rebia Verdict was also being “misused” by the rebel MLAs to block the disqualification proceedings against them.
The court had also expressed concerns regarding “lack of intra party democracy”, especially in the state/regional parties. The bench had made a scathing remark regarding parties “led by a single family” where other party members or leaders would not be able to express dissent without being faced with threat of disqualification.
The court may therefore consider drawing the distinction between “genuine dissent” as claimed by the Shinde faction and “anti-party activities” as alleged by the Thackeray faction.
