The Supreme Court on Wednesday rejected the suggestion of the Uddhav Thackeray faction of the Shiv Sena to decide the disqualification proceedings pending against Maharashtra Chief Minister Eknath Shinde and MLAs belonging to his camp, saying it cannot assume the role of the speaker as doing so will have "serious ramifications".
The Thackeray faction had on Tuesday insisted that the court decide the disqualification proceedings as that was the only way to "uphold the democratic spirit of the Constitution”.
"Right or wrong, this is the system we have assumed as 'We the People'. Can a court try to breach this system? Should the court enter into that area? This is an area which is worrying us," the court observed on Wednesday.
A five-judge Constitution bench headed by Chief Justice DY Chandrachud, which was hearing a batch of pleas related to the June 2022 Maharashtra political crisis, told senior advocate Kapil Sibal, representing the Uddhav Thackeray-led faction, that ultimately it is the speaker of the House, who has to decide whether the rebellion by the Shinde bloc attracted the provisions of the anti-disqualification law.
"You are saying whatever has to be done has to be done at the behest of the party. Your argument is that they (Maharashtra CM Eknath Shinde camp) have acted contrary to the interest of the party.
"They have appointed their own whip and leader of the party and their behaviour and conduct invited disqualification but all of this leads us to one area, that it is the speaker of the House who is to decide whether there is any disqualification or not. That's an area we are unable to breach," the court said.
The five-judge bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, said it understood the arguments of Sibal that in parliamentary democracy, the political party is supreme.
"So far so good. It's a very significant point you (Sibal) have made that they (Shinde faction) are elected representatives of the Shiv Sena party and their behaviour must be dictated by the party. Now, the question is, should the court enter into the area of Speaker and, if it assumes the role of speaker, then it will have very serious ramification.
"Right or wrong, this is the system we have assumed as 'We the People'. Now, will the court try and breach this system that is worrying us," it said.
Sibal, assisted by advocate Amit Anand Tiwari, said this court has held that illegality cannot be allowed to be continued even for a day.
He said all these acts (by Shinde camp) were perpetuated by two orders of this court dated June 27, 2022, by which this court kept in abeyance their disqualification proceedings before the deputy speaker, and of June 29, 2022, by which the court refused to stay the direction of the Maharashtra governor to the 31-month-old Maha Vikas Aghadi (MVA) government to take a floor test in the assembly to prove its majority.
He submitted the top court should be worried because if this becomes a precedent, it can happen in other cases too.
The bench said if such a situation arises because of a judicial order, then it is a duty of the court to rectify that situation.
"Now, assuming that if we do so and place ourselves in a situation before June 27, 2022, then we would have said that let the speaker decide and your argument would have been till the Speaker decided their disqualification, there should not be a trust vote.
"It would be very difficult to retrace our steps back in this scenario as the question would arise which Speaker or that Speaker," the bench said.
Sibal said this was exactly what was done in the 2016 Nabam Rebia case, where the court set the clock back and ordered status quo ante by restoring the Arunachal Pradesh government.
The bench said, "Mr Sibal you want Nabam Rebia (judgment to be followed) when it suits you and you don't want it when it does not suit you. Today, we have a speaker in a democratically elected house and after that can we now say that let the then deputy speaker take a call on disqualification. Sorry, it will be very difficult to retrace our steps back."
Sibal submitted that all these developments took place after the court order which allowed the status quo to be changed.
The bench said those two orders were passed after hearing arguments from both the sides and that retracing the steps would mean invalidating the trust vote which took place subsequently.
He said Parliament, in its wisdom, has used the term 'political party' under the provisions of Para 2(1)(b) of the Tenth Schedule, wherein a member attracts disqualification for going against the wishes or directions of the political party.
"Democracy only thrives when the institutions uphold the sanctity of the Constitution. In this case, the governor did not stop them (Eknath Shinde faction) or chose not to stop them. He never asked them who you represent or which party you represent. Unless Nabam Rebia is overruled, these situations are bound to happen.
"Governors are actively playing a role which is disturbing the polity of the State. I leave this court to find answers to these issues," he said.
The hearing remained inclusive and will continue on Thursday.
On Tuesday, the top court had told the Uddhav Thackeray faction of the Shiv Sena that the speaker of a House functions like a tribunal in matters related to defection under the anti-defection law.
