Shiv Sena Crisis | Legislative Party Cannot Act Independent Of Political Party: Thackeray Faction To Supreme Court

The Supreme Court of India on Wednesday continued hearing the pleas concerning the constitutional issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter. Senior Advocate Kapil Sibal, representing the Uddhav Thackeray faction argued today that members of the legislative assembly could not act independent of their political party. 

He submitted that the action of the Eknath Shinde faction appointing their own Chief Whip was per se illegal as it did not emanate from the party. He said–

"Members of the legislature cannot pass such a resolution. They cannot defy whip, they cannot remove whip. So he is acting as a group leader of the member of legislative assembly. So in any assembly 10 people can get together and remove the whip and then they can go to the opposite party and destabilize the government and have their own Chief Minister? This is the outcome if this is held to be valid. An elected govt can be removed anytime depending on the arithmetic."

He had also raised similar arguments yesterday when he argued that if the court upholds the Eknath Shinde faction as the official Shiv Sena, it could be a precedent for toppling down any government and the court would be enabling defections. 

At this juncture, CJI DY Chandrachud asked–

"If this outcome has to be lawfully achieved- of removing chief whip or a leader, what is the course of action?"

Senior Advocate Kapil Sibal responded by stating that a party meeting had to be called for the same. He argued–

"When you proclaim that you're a member of the Shivsena, you must naturally be under the constitution of Shivsena. The constitution of Shivsena allows you to express your voice and get support...Let's assume this can all be done. Then 50 people in the house can actually have a leader in the house without reference in the party. 50 people can actually oust the party whip appointed by the party- that's the consequence. This is unheard of in any democracy, any legislature. It'll be entirely unworkable because then you'll say that there's no relationship between members of the legislature and the party- they are independent of the party, they can take whatever decision they like. It'll be destructive of basic structure of system of governance."

CJI DY Chandrachud, while delving further into the issue stated that this line of argument was buttressed by 2(b) of the tenth schedule which states that the party nominates or authorises a person to act as the party whip and the act of defection lies in voting or abstaining from voting contrary to the direction by party or that person.

Senior Advocate Sibal contended that one had to maintain the integrity of the political party and individual members could not decide anything on their own. He added–

"This sudden realisation could not have come up on June 21st. It is obviously planned. If this was a grievance, it would have come in public statements etc. But it came from Assam. Why? Because it was planned. It's a conspiracy. And you're talking about poll promises. The poll promise was broken at the time when Devendra Fadnavis and Ajit Panwar were sworn in at the early hours of morning by governor."

This comment was closed down by the bench which reminded Senior Advocate Sibal that he was entering the arena of politics by making such submissions. 

Senior Advocate Sibal then continued his arguments by elaborating upon the party system in India. He said–

"The entire edifice of our parliamentary democracy is the party system. The legislative party is the species and the political party is the genus. Actions of legislative party cannot be outside the line of objects of political party. To vote against the party- that is disloyalty. To join another party - that smacks of conspiracy. It is the political party which appoints the Chief Whip, not the legislative party. You knew the ideology, you knew he was Pakshpramukh, you took his ticket, then suddenly you're in Assam and you say you're very worried. "The membership of the house doesn't become his private property nor can he trade in it." Look at these words. I am sure he wasn't in Assam for cleansing his conscience. There were bigger issues to be dealt with in Assam."

He further argued that through his actions, Eknath Shinde had per se voluntarily given up the membership of the house.

While making his submissions regarding governor's discretion, Senior Advocate Sibal said–

"We're talking of discretion of the governor post the formation of an elected government. If post the formation, 10 people go to the governor, what is his discretion? He will ask the question, which party do you belong to? I'm sure he'll know that before he asks the question. So he knows that Shivsena is not before him. So what is his discretion in administering the oath to Shinde? When there's already an elected government in place and there is an alleged taint of a certain faction, can the governor exercise discretion in a manner which would topple the government? He could have said that please first file your reply(to the Deputy Speaker's disqualification notices) on 12th July, see the outcome of those proceedings, and if there is no taint, I'll administer your oath. Institutional morality demands he follows that path. Why would the governor administer the oath except if he himself knows that the elected government will be toppled?"

At this juncture, Justice Narasimha posed the following question–

"Legislators double up as political leaders in districts. In districts, legislators are top leaders. So he represents the political perspective also. So the question arises is that there is an overlap in the position of a legislator- what stage to determine it?"

To this, Senior Advocate Sibal responded that while there was an overlap, the same could not be used to say that the whip would no longer be listened to. Highlighting the importance of the party, he said–

"You have to, under the constitution, go to the party. Make all efforts. Raise your voice. Articulate your opinions. Get a substantial number with you, claim that there is a split, try to change leadership. There is no notice, no venue, no time, evidence of meeting! So you don't go by the constitution, you don't claim there is a split, you say that the 30 legislators are the political party. Then you go with the BJP and you get yourself anointed as the Chief Minister of the state!"

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