Shiv Sena Case | How Can We Take Over Speaker's Functions? Supreme Court To Uddhav Side

The Constitution bench of the Supreme Court of India, while hearing the pleas concerning the Maharashtra Political Crisis expressed its concern over the court entering into the functioning of the speaker. In yesterday's proceedings, Senior Advocate Kapil Sibal, representing the Uddhav Thackeray faction, argued that members of the legislative assembly could not act independent of their political party. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter.

Sibal had argued that the Court can take a decision on disqualification, given that the incumbent Speaker can't be expected to be impartial. He also asserted that the "facts are so staring" that the Court can decide disqualification, as the public acts of Shinde-led group per se amount to defection.

CJI DY Chandrachud, however expressed concerns regarding Court taking over Speaker's functions.

"We understand the significance of the point you've made- which is a significant point for constitutional democracy- that ultimately the party is supreme. You are elected as representative of party and your behaviour must be dictated by the party. So far so good. But the next point - what is the consequence? It could be two fold- one that speaker cannot be trusted as impartial arbiter. Second would be that the facts are so clear that the Court make the decision. Should the court enter into that area? There are very serious ramifications..."

To this, Senior Advocate Sibal responded that the court had done this in the past and he was hoping that the court would do it again. To this, CJI DY Chandrachud said–

"Right or wrong, this is the system we have assumed as we the people. When the court tries and breach the system...that's what's worrying us."

Senior Advocate Sibal, pushing for his submission said–

"Quite frankly, constitutional court should be worried because if this becomes a precedent it can happen in other cases too. What has happened has happened because of a judicial order."

CJI DY Chandrachud, then stated that if the situation had happened because of a judicial order, the court would be placing itself before it passed the order on 27th June 2022 and would then let the speaker decide upon the disqualification proceedings. He said–

"Your argument would be till speaker decides, no trust vote. It would be very difficult for us to take the function of speaker."

Senior Advocate Sibal argued–

"In Nabam Rebia, your lordships have done exactly that."

CJI DY Chandrachud was still not convinced and asked if the Court can reinstate the previous Speaker when a new Speaker has been elected by the house.

"Today we have a speaker in a democratically elected house. Tomorrow you may have speaker in parliament. Can the Supreme Court say that sorry we're now overriding the mandate of the speaker? We will retrace our steps back, restore a speaker who is no longer speaker?"

To this Senior Advocate Sibal submitted that the court itself had stated on 29th June 2022, that the proceedings in the house will be subject to the result of the petition. Justice MR Shah then pointed out that the Court's observation was regarding the floor test scheduled on June 30, which did not eventually take place as Uddhav Thackeray resigned. Sibal however urged that the Court should not take a technical approach and should see the larger picture.

"Had I not resigned, the trust vote would have happened and the same thing would have happened....In substance, it's the same thing. Are we going in the technicalities or the substance? There is a whip issued (to Shinde side MLAs) on the 3rd that you vote against the trust vote(for Shinde-Fadnavis Government). They did not. Who is the whip? Sunil Prabhu. So where does it take us? Nowhere..."

Issues Raised by Uddhav Thackeray Faction

The following issues have been raised by the Uddhav Thackeray faction for the Court's consideration-

I.  Does the Constitution permit an institutional hiatus by tying the hands of the speaker in functioning under the 10th schedule through proceedings initiated by a member of the legislative assembly under Article 179(c) of the Constitution of India? 

II. Can in any legislature, x number of people form a separate identity and act de hors the political party and/or contrary to the directions of the political party?

III. Will a group within a legislative party asserting their separate identity and acting de hors the political party and contrary to the decisions have per se incurred disqualification under tenth schedule?

IV. Can a group in the legislature party asserting their separate identity have the constitutional authority to alter the leadership of the political party in the house or the whip appointed by the political party in the house?

V. Given that an elected government should be allowed to serve its full term as a matter of constitutional law, can a group within legislative party asserting a separate identity, dislodge an elected government while proceedings for disqualification under tenth schedule are pending?

VI. Should the governor, who is constitutionally obliged to sustain the continuity of elected government, change the status quo by allowing for change in government before disqualification proceedings are decided by speaker?

VII. Whether the governor can swear in as a Chief Minister, a person against whom a notice for disqualification has been issued by speaker acting as the tribunal under tenth schedule and is pending adjudication?

VIII. What is the impact of pending disqualification petitions on the ability of members to participate in a test of strength of floor of house when the vote would have the effect of toppling the government? 

VIII. Can a constitutional court, in a matter related to disqualification proceedings, decide the matter on its own without referring the matter to speaker for his decision and if so, under what circumstances?

IX. If the decision of the speaker that the member has incurred disqualification relates back to the date of the action complained on, what is the status of proceedings that took place during the pendency of disqualification proceeding?

X. What is the impact of removal of Para 3 of tenth schedule?

XI. In what circumstances does the speaker recognise the whip? 

XII. What is the scope of powers of the Election Commission with respect to determination of split?

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