Shiv Sena Case | Uddhav Side Urges Supreme Court To Restore Status Quo Ante As On June 27, 2022

In the Shiv Sena case, the Uddhav Thackeray side concluded their arguments before the Supreme Court on Tuesday.

The matter was heard by a bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha. Tuesday's arguments were made by Senior Advocate AM Singhvi and continued by Senior Advocate Devadatt Kamat. Last week, Senior Advocate Kapil Sibal had completed his arguments for the Uddhav side.

Court should restore the status quo ante: Senior Advocate AM Singhvi

Singhvi commenced his arguments today by stating that certain consequences arising out of the interim order of the court must be taken into account to decide the pleas. He stated that the injunctions passed by the court against the Speaker deciding the disqualification petitions were against the judgement in Kihoto Hollohan vs Zachillhu which prohibited interim judicial interventions in tenth schedule matters.

"There is no way a Governor can interfere like this specially when the matter is sub judice or pending. This is sub judice at two levels- at court's level and at speaker's level. Your lordships is dealing with a legislative issue. Executive has no role to come into it. The governor, though a constitutional post holder, is an executive appointee. So this is executive's lateral direct entry to a no-go area. Supreme Court for the polity, for constitutional morality, must decide."

The recognition of split by the Governor was unconstitutional as by doing so, an executive nominee certified that the Shinde group MLAs were not disqualified.

"He's doing this when there's a pending disqualification proceeding and a hotly contented Supreme Court matter. He is saying that come to me and I will swear you in. This is an advanced notice. Therefore, to answer your question - that what should we do? Simplest way is to quash his letter. Suppose you quash the letter, the status quo ante is automatically restored. Is that constitutional morality? Clearly it is."

He argued that the consequences arising out of the governor's actions were extremely serious for the constitutional polity.

Seeking relief from the bench, Singhvi said–

"Your lordships will therefore restore in an ancillary sense, the position on 27th June. All these are nullifying the tenth schedule...As per the principle of restitution, the parties have to be placed into the same position but for the litigation and interim order, if any."

When CJI DY Chandrachud asked him what the power of the Governor was in terms of calling trust vote post formation of government, he responded–

"Zero power when there are pending disqualification proceedings.... Governor is recognising ABC as a party in majority. He is giving or imparting legitimacy and status. How is that possible?"

CJI DY Chandrachud continued the discussion by asking–

"In assessing a ruling party strength, you have a numerator and denominator. Numerator is the strength of the party and denominator represents strength of house. As per you, the Governor recognises part of the numerator. Can the Governor not say that there is no recognisable concept of split and these people have to be reduced both from numerator and denominator?"

Singhvi replied in a negative and said that the governor could not embark upon such an exercise.  

Decisions of Political Party expressed through its leadership: Senior Advocate Devadatt Kamat

Furthering the submissions of the Thackeray faction, Senior Advocate Devadatt Kamat stated that his arguments were limited to Shinde group appointing Bharat Gogawale as the whip of the Shiv Sena party when Sunil Prabhu was continuing as the whip of the original party. This was completely illegal as only the political party leader can appoint a whip.

"What is the meaning of a political party? Ultimately, decisions of the political party are expressed through its leadership. As far as Shivsena is concerned, the leadership structure was communicated in January of 2018. Political parties are not anomalous. It is very clear- who are the members, what is the leadership structure. So when the tenth schedule says directions of political party- it means directions expressed by leadership. When there is an intra party dispute- can MLAs take the defence that I am the political party and I will indulge into prohibited conduct under tenth schedule?"

He also argued that the decision of the ECI declares a party and the same could only have a prospective effect. He added–

"It can't relate back. It's a quasi judicial adjudication. That adjudication results in an order declaring XYZ as a political party. If it is held otherwise, it would have complete disastrous consequences as far as the tenth schedule is concerned."

With this, the arguments of Thackeray side were concluded and the Court proceeded to hear the arguments of Shinde faction. Separate report on the second session of the hearing may be read here.

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