Shiv Sena Case | What Is The Ultimate Relief Court Can Grant? Supreme Court Asks Thackeray Faction

A constitution bench of the Supreme Court on Tuesday heard the pleas concerning the constitutional issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups on merits today. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter. In yesterday's proceedings, Senior Advocate Kapil Sibal, appearing for the Uddhav Thackeray faction opened the arguments and submitted that if the court upholds the Eknath Shinde faction as the official Shiv Sena, it could be a precedent for toppling down any government. The bench inquired what relief could be ultimately granted to the Thackeray faction. 

Through his submissions, Senior Advocate Sibal argued that the tenth schedule could not be interpreted in this fashion to allow the elected government to fall. He submitted that the order of the court dated 27th June 2022 should not have been passed and the speaker should have been allowed to take a decision on disqualifications. As per the order of 27th June, the Apex Court granted interim relief to Eknath Shinde by extending the time to file responses to the disqualification notices. Later, on June 29, the court gave the go-ahead to a floor test called by the governor.

CJI DY Chandrachud asked–

"Assuming you're right in everything you argued, that look the 27th order should not have been passed, the speaker should have been allowed to take a decision on the petition for disqualification, what is the net consequence of your argument? What direction do you want court to give?"

To this, Senior Advocate Sibal suggested that the Court could decide the issue of disqualification, especially as the new Speaker was supported by the Shinde faction.

"What is the Speaker to decide? They have not filed a reply till date."

The court was not satisfied with the answer and stated that the court cannot make the decision on disqualification. However, Senior Advocate Sibal interjected and stated that the court had decided upon disqualification in the judgement in in Rajendra Singh Rana v. Swami Prasad Maurya, where the facts were undisputed. To this, CJI Chandrachud pointed out that if Sibal is arguing that the Court's June 27 order preventing the Speaker was bad, then the same principle should be applied now also.

"Just as you say that on the 27th, the speaker could not have been stultified into taking a decision on disqualification, once we adopt that principle, we have to be consistent in applying that principle across the spectrum. There is a very valid point which you are making, which is, that the speaker themselves are constitutional authorities. Therefore, the speaker has to take a decision under the tenth schedule. If that is so, we have to be extremely circumspect about replacing the institutional mechanism which is provided by tenth schedule itself."

Senior Advocate Sibal said–

"The problem in this case is that this is because we perpetuated an illegality. The speaker came into existence by perpetuating illegality. And now you giving the cloak of authority to that speaker who has actually come into place by illegality."

The bench interjected by noting that the court could not reinstate the earlier speaker. However, Sibal responded to the same by stating–

"In Nabam Rebia, you did it. You in fact reinstated the entire government. I am not saying that you should do it but that is exactly what happened in Nabam Rebia."

At this juncture, Justice Hima Kohli asked–

"Mr Sibal, would the court not be getting into the thicket of the entire gamut by virtually clothing itself with the power of the speaker? What you are saying is put the clock back in every which way."

While stating that the facts were undisputed in the present case Senior Advocate Sibal stated that there was no political thicket in the current case. CJI DY Chandrachud asked–

"Ultimately, it will boil down to this. You have to say that if you are logically consistent, that we trace your steps to the position you were before 27th June. Where does your argument lead the constitutional court to?"

Senior Advocate Sibal responded– 

"There are many things that you can do. Your lordships may say that you decide it in seven days and you challenge the order if it is against you before us after seven days. You decide within seven days. They have not even filed a reply."

To gain clarity on the issue, CJI Chandrachud said–

"So to have clarity, Mr Sibal, you say that ask the Speaker to decide upon the disqualification of the 39 MLAs and ask him to do so within a stipulated period – we will then hear the challenge?. If the Speaker comes to a conclusion that they're disqualified, then what happens? They will come in appeal? What is the consequence practically in terms of the trust vote? Assuming that the court has the power..."

Senior Advocate Sibal stated that in such a case the Chief Minister will have to go because as per Article 164(1)(b) of the Constitution, he cannot hold office in such circumstances. 

CJI DY Chandrachud further questioned–

"If the speaker comes to the conclusion that this is the disqualification, those 39 people will go. In this case, according to you, Eknath Shinde also has to go. Then what is next?"

Senior Advocate Sibal responded– 

"Nothing. Whoever is the chief minister, the trust vote we will see about that. This court said that the trust vote is subject to the result of these petitions.  Judicial orders are passed. We are put in this situation. And then we were asked what can we do now."

To this, CJI Chandrachud said–

"We are not asking what we can do. We are asking what your submission is as to what we can do. We have to also factor relief which the constitution court is to give to take the argument to its logical conclusion.What we are trying to do now is to test what are the limits of your argument. How far should the court go?"

Justice Narasimha then observed that whether the Court can issue a mandamus to a Speaker is another issue.

"We've challenged decisions of 3rd of July, of the Speaker. My lords, we are the party that's fundamental. Before anything is done by the Speaker. So Your Lordships, my respectful submission...please consider the decisions and then whatever the outcome is, let the outcome be. But a shortcut of this nature will lead us nowhere", Sibal replied.

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