Shiv Sena Case Hearing | If Some MLAs In A Political Party Oppose Coalition After Forming Govt, They Will Attract Disqualification : Supreme Court

The Constitution bench of the Supreme Court of India, while hearing the pleas concerning the issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups, asked whether holding a floor test during the pendency of disqualification proceedings would amount to legitimising defection.

The Court verbally remarked that if the antecedent reason for a floor test was based on a violation of the tenth schedule, then holding a floor test at that stage would defeat the purpose of the tenth schedule. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter.

Senior Advocate Neeraj Kishan Kaul, appearing for the Eknath Shinde faction, referring to the judgements in SR Bommai v. Union of India and Shivraj Singh Chouhan vs Speaker Madhya Pradesh, stated that the moment the support for the Ministry is withdrawn, the only option left for the governor is to conduct a floor test. To this, CJI DY Chandrachud remarked–

"If we accept this extreme proposition, very radical results will come out. On one hand we have the tenth schedule which is to prevent the constitutional sin of defection. On one hand you say that someone who causes split is liable for disqualification. At the same time you say that look, even if that person is liable to be disqualified, in the mean time he can attend the trust vote on the floor of the house. If the antecedent reason for a floor test is based on a violation of the tenth schedule, then holding a floor test at that stage will defeat the whole basis and purpose of tenth schedule. And then you're legitimising a defection which is otherwise not permissible under the tenth schedule."

CJI DY Chandrachud asked–

"The need for a floor test arises because a group of legislators may be disqualified because of a split in party. If the legitimacy of the split is itself in question, then by holding of a floor test- are you not putting a premium on disqualification proceedings?"

Kaul replied that Shinde group does not have a case of split at all. Their case is that they are "Shiv Sena" itself and that they are a rival faction within the party itself, with majority support of party members. It is the Election Commission alone which can decide which faction is the real party and the ECI has now recognized Shinde group as the official Shiv Sena.

Justice Hima Kohli interrupted his arguments by stating–

"On June 30th, there was only one party. You contested elections on basis of a ticket of the original party. If you say you were the original party, you do that outside the house, not on the floor."

Responding to this, Kaul submitted that the floor test was organised to demonstrate that Thackeray has lost his majority. He argued–

"My whole case is that this is a case of internal dissent. We are the faction that represents Shivsena. That issue can only be decided by the ECI. As far as floor test is concerned, it is only related to issue whether the CM has the confidence. You remove those 39 votes, whose disqualification was pending, we're still through. The CM fails in both cases- with 42 and without 42."

What was the basis on which the Governor called for the floor test?

CJI DY Chandrachud asked what was the objective material on the basis of which the Governor directed a floor test for the Uddhav government. The CJI added that in the case of Shivraj Singh Chouhan vs Speaker Madhya Pradesh(MP Assembly case of 2020), there were objective materials placed before the Governor on the basis of which the Governor acted.

Kaul explained that there were reports that 34 out of the 55 Shiv Sena MLAs do not support Uddhav. Also, seven independent MLAs also withdrew support. Leader of Opposition also stated that the Government has lost faith of the house. Also, there were reports of threats of violence being issued by Uddhav group leader Sanjay Raut to the Shinde group MLAs.

"The governor comes to an informed decision that the floor test should be conducted. Can any elected government say that I want to continue without facing the floor test?",  Kaul asked.

CJI opined that the reports regarding threats of violence are "constitutionally extraneous" to a decision regarding floor test.

"The attacks and violence have nothing to do with governor being asked for a trust vote. There are only two points- the seven independents stop supporting and 34 MLAs have asked Shivsena to exit from the Maha Vikas Aghadi coalition. Once the governor starts intervening in a sitting house...whoever wants to move a no-confidence motion, let them move. Why should a government, which has been formed and in respect of which there was no disquiet up until one month ago, face a trust vote?", CJI asked.

Kaul responded that there could not be a cut off date for members to lose confidence in the leader. "That event in politics can occur at any time".

At this juncture, Justice Narasimha, pointing out to the Shinde group's stand that they are the real Shiv Sena, asked whether the Governor had any material before him which indicated that Shinde group had the majority support within the party itself apart from the legislative wing.

"So in the information given to governor, where is material which shows that you have garnered political majority, not legislative majority. Where is that kind of material?", Justice Narasimha asked. Kaul said that he will address this query tomorrow.

If a particular segment within a party says they don't want to go with the alliance, that will ipso facto attract disqualification, says CJI

During the arguments, CJI DY Chandrachud also noted that when a coalition government has been formed, it was not open to any group within a party to say that they could not go with the alliance. Such an action will attract disqualification. 

"Once a government is formed, it is not open to any group of MLAs to say that we don't want to go with this alliance. It is not open to any one segment of a political party to say we don't want to go with this alliance. That will ipso facto attract the disqualification provisions. You are bound by the whip. You are bound to vote with your party so long as you are in the legislature, unless there is a merger". 

CJI continued -

"So, on the one hand, none of them, can say to the Governor that we don't want to go with the alliance. The answer is very simple. You don't want to go with an alliance? Then go to your leader and take a decision in the political party outside. So long as you're member of the house, you are bound by discipline of the house. So you have to vote with your political party.  What they're saying to the Governor is that we don't want the party to go with this alliance. And Governor takes cognisance of it. What he is essentially taking cognisance of is there is a breakaway segment of this particular party. In that letter to the Governor, one thing which is completely absent is your argument "we are the Shiv Sena". The entire letter is postulated on the fact that you want to break away from this alliance. What is this if not a Split?"

Kaul responded–

"There are two political whips appointed on the same day. We're following the mandate of the party. The question is whether my political whip or their political whip is the actual whip. The faction, which has been now recognized officially, had the majority in the political party then. They can't presume and say that we have incurred an ex facie disqualification. There is an overwhelming discontent in the cadre of the party. The party didn't want to continue (with the alliance). The fact remains is that they were discontent."

Kaul also argued that the proceedings under the tenth schedule operated independent of government and an MLA was fully entitled to vote during pendency of disqualification. The senior counsel said that he will address the queries of the bench tomorrow.

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) No. 493/2022