The Supreme Court on Wednesday said the petitions filed by the Shiv Sena and its rebel MLAs during the recent Maharashtra political crisis raised constitutional issues including split, the merger of a political party, defection, and disqualification which may require consideration by a larger bench.
A bench headed by Chief Justice N V Ramana, meanwhile, extended the operation of its July 11 order by which it had asked assembly speaker not to proceed with a plea seeking disqualification of MLAs of the Uddhav Thackeray faction as sought by Chief Minister Eknath Shinde’s group on the ground of defying the party whip during the trust vote and the election of the speaker.
The bench, also comprising justices Krishna Murari and Hima Kohli, issued notices on petitions filed by the Uddhav group and asked the other side to file responses and issues by July 27 for consideration by a larger bench and fixed them for hearing on August 1.
While a battery of senior lawyers including Kapil Sibal and A M Singhvi took charge on behalf of the Uddhav faction, the Shinde group was led by senior advocate Harish Salve.
"What happens to the verdict of the people? The 10th Schedule, meant to stop defection, has turned topsy-turvy and has been used to instigate defection," Sibal said, adding that the protection against disqualification is available in case of a merger and not in the case of split of a party.
Salve replied saying, "Heavens do not fall if a chief minister is changed. Let us get into if the speaker was appointed as per law and not on the crisis of democracy and all that... Raising a voice within the party without crossing the 'Lakshman Rekha' is not an act of defection."
”Some of the issues, consequences of removal of paragraph three (of 10th Schedule) and absence of split concept, whether a minority party leader has right to disqualify party leader, these are some of the issues. If you can cull out the issues, we can decide how to proceed,” the CJI said, adding that at the moment he was ”thinking aloud”.
"After hearing the counsel, it has been agreed that some issues may, if necessary, be referred to a larger bench also. Keeping in mind the same, to enable the parties to frame the issues, let them file the same preferably by next Wednesday (July 27)," the bench said in its order.
The bench was hearing six pleas related to the political crisis that led to the fall of the Maha Vikas Aghadi government.
Out of these, the first one was filed by the Shinde faction against the move to disqualify them by the Thackeray group.
At the outset, Sibal said if this principle of majority is to be accepted, then every elected government in this country can be toppled despite the fact that there is no protection under the 10th Schedule for such a split.
The bench told Sibal that it has some doubts regarding the consequences of the deletion of a paragraph from the Tenth Schedule, which permitted an inner-party split.
The CJI, clarifying that he is not expressing any views and only seeks to clear his doubts, said that after the removal of paragraph 3, the concept of the split is not recognised. Once there is no split, what are the consequences, he sought to know.
Forty members of Shiv Sena, by their conduct, are deemed to have incurred disqualification by giving up party membership as per para 2 of the 10th Schedule, Sibal said.
"By voting for a candidate put up by the BJP as speaker in violation of the official whip, they have attracted disqualification. Now coming to the governor, the governor should not have sworn in the new government when the Supreme Court was hearing the matters," Sibal said.
He said the governor could not have sworn the individual who has chosen to separate from the political parties and have incurred disqualification.
"Speaker recognising a whip other than the official whip nominated by the party is mala fide. When disqualified members elect a person and they stand disqualified, then the election itself is bad.
"These are all part of the record, these will decide if they have incurred disqualification or not. Records of assembly should be called for. Under which provision of the 10th Schedule they are protected. The court needs to decide the issues based on official documents as they are part of the records," Sibal said.
"In which part of the democratic world people can be brought over to change sides and elected governments can be toppled," Sibal said, adding that every day's delay will play havoc with democratic institutions.
Singhvi, appearing for the former chief whip of Shiv Sena, Sunil Prabhu, said a day before departing for Guwahati, the members of the party's rebel faction sent an e-mail to the deputy speaker, seeking his removal.
"This email was sent from an unauthorised email ID. The deputy speaker takes it, seizes it, and says it is not on record," Singhvi said while terming the majority attained by the Shinde faction in the assembly a "contrived majority".
Salve, appearing for the CM Shinde group, said one thing the 10th Schedule proposed to do but did not do was to allow a leader to take your flock and lock the key.
”It is alleged that inner party democracy has been throttled by disqualification proceedings. If there is disaffection within the party and a large number of people in a party feels that another man should lead, what is wrong in that," Salve said.
He stated that in a democracy, people may gang up and tell the prime minister that "sorry, you cannot continue".
On June 27, the vacation bench of the court extended the time for the rebel MLAs to file written responses to the deputy speaker's disqualification notice till July 12.
On July 3, Narvekar of the Bharatiya Janata Party was elected as the speaker of the Maharashtra assembly.
He had polled 164 votes and defeated Thackeray-led Shiv Sena candidate Rajan Salvi, who had secured 107 votes.
A day before the floor test, Narvekar had recognised Gogawale as the Shiv Sena's chief whip, removing Prabhu, who belongs to the Thackeray faction.
After winning the trust vote in the Assembly on July 4, the Shinde faction issued a notice to 14 legislators from the Thackeray camp for violating a whip issued by Gogawale, the Sena whip and a Shinde loyalist.
Both sides have accused each other of defying the party whip during the speaker's election and the trust vote on July 3 and July 4 respectively, seeking disqualification of the legislators from both sides.
The Maharashtra legislature secretary also came into the picture and issued show-cause notices to 53 of the total 55 Shiv Sena MLAs in the state -- 39 from the Shinde faction and 14 from the Thackeray group.
The notices were issued under the Members of Maharashtra Legislative Assembly (Disqualification on Grounds of Defection) Rules.
In the trust vote, 164 MLAs had voted for the motion of confidence, while 99 had voted against it.
The Thackeray faction has also challenged the validity of the assembly proceedings held on July 3 and July 4, in which a new speaker of the House was elected and the subsequent proceedings of floor test, in which the Shinde-led coalition had proved its majority.
It has also filed a plea challenging the decision of the newly-elected speaker to recognise the new party whip of the Sena rebels led by Shinde.
Prior to this, Prabhu had moved the top court seeking suspension from the Assembly of the chief minister and 15 rebel Sena MLAs against whom the disqualification pleas are pending.
The vacation bench of the court had, on June 27, granted interim relief to the Shinde faction by extending the time for replying to the disqualification notices sent to the 16 rebel Sena MLAs till July 12.
On June 29, the Maharashtra governor had ordered a floor test, prompting the MVA government to rush to the top court, seeking its deferment.
The bench refused to stay the governor's direction to the 31-month-old MVA government to take a floor test in the Assembly to prove its majority, after which the then beleaguered chief minister Thackeray quit office.
After Shinde was sworn in as the chief minister on June 30, Prabhu moved the top court seeking his suspension and that of 15 Sena rebels on various grounds, alleging that they were acting as pawns of the BJP, thereby committing the constitutional sin of defection.
