Shiv Sena Case: Principle Of Majority Rule Higher Than Evil Of Defection,’ Eknath Shinde’s Faction Tells Supreme Court

“My learned friends have spoken of a very high constitutional principle and have elevated the entire perspective of this case to the evil of defection. But, the evil of a speaker and a government hellbent on power is an even greater evil. This is a constitutional principle which emanates from Article 164(2) which states that the council of ministers are collectively responsible to the legislative assembly of a state. In practice, this means that when they collectively lose the support of the majority of the House, they have to step down. So, much higher than the evil of defection is the principle of majority rule in this country. This is paramount.”

Right at the outset, Jethmalani asserted that the fundamental propositions of law raised by the other side, relating to a purported deemed disqualification, and an appeal to the top court to “set the clock back” on the basis of that, “did not arise at all on the facts of the case”. Having said that, he proceeded to address the two primary contentions, saying, “There is nothing called deemed disqualification. Otherwise, the reply of a delinquent legislative assembly member and the hearing would become empty formalities, besides suggesting that the speaker would necessarily be of a predetermined mind and partisan bent. Equally untenable is their contention that the clock can be turned back.”

Addressing the contention regarding the top court’s decision in Nabam Rabia needing a ‘relook’, Jethmalani said that it would not be necessary, but if the court was nevertheless persuaded to revisit the judgement, it should only be for reaffirming the view enunciated in particular by a separate opinion of Justice Dipak Misra (as he was then) that a speaker or a deputy speaker would be disabled qua their functions at the time when a notice to remove them has been sent, and not at a subsequent stage when the notice is under consideration”. “The judgment must be reaffirmed and put on stronger ground if this court decides to revisit it.”

In this connection, he referred to the requirement under Article 179 of the Constitution and Rule 11 of the Maharashtra Legislative Assembly Rules of giving prior notice of 14 days to a speaker before moving a motion for their removal. He said that prior notice would present every opportunity to those aggrieved by the said notice, or the speaker or deputy speaker to thwart the plan to proceed with the motion after 14 days. “This is not only capable of being misused, but it has been misused.” The natural justice principle of nemo judex in causa sua against one being a judge in their own case, as enshrined in Article 181, should not be restricted to the case of consideration of a resolution, but also extend to the stage of notice because “a speaker who continues to function, can use his powers to gerrymander the constituency that will decide on his removal”. Therefore, the senior counsel added, there was no logical reason to distinguish between the ‘Article 181 stage’ and the ‘Article 179 stage’.

Jethmalani further argued that once the Eknath Shinde-led faction claimed to be the ‘real’ Shiv Sena on the basis of their legislative and organisation majority, the speaker should desist from proceeding with the disqualification petitions, pending adjudication by the election commission. He explained, “This is because a speaker can only go into legislative matters, but not into the organisational aspect.”

Alleging procedural impropriety and mala fide motives, Jethmalani pointed out that initially disqualification notices were served only on 16 out of the 39 rebel legislative assembly members in what the senior counsel claimed was an attempt by the Uddhav Thackeray-led faction to split Eknath Shinde’s group and secure a majority. By serving these disqualification notices, the speaker ignored the Nabam Rebia dictum, Jethmalani argued. Further, not only were the MLAs allegedly given only two days to respond instead of 14 days, but “they did everything possible to stop the members from coming to the hearings”, the senior counsel claimed.

The Bench also heard the brief submissions made by senior advocate Maninder Singh, who argued that the intra-party dissent was an element of the constitutional scheme and our democracy. “One of the rights of elected candidates is to speak against their own party if need be. Can this be curtailed totally in name of party discipline and embarrassment? Should this be eliminated?” the senior counsel asked.

The need to balance the right of party members to dissent has led to the rule against the participation of speakers, he explained. This was founded on the principle of the elimination of any conflict of interest. In this connection, he also challenged the contention that the decision of the court in Nabam Rebia required a relook, saying “That conflict of interest when it is required to be demonstrated in a constitutional adjudication, the period of non-participation was laid down in the judgement. The reasoning is sound and is based on a principle which has stood the test of time.”

In conclusion, he said, “In any case, the only thing that survives here is whether the Nabam Rebia decision needs to be referred to a larger bench. Nothing else survives, it is only academic, especially when the gentleman concerned did not face the confidence vote.”

The hearing in continuing today. Live-updates from today's hearing can be read here.

Case Title

Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors. | WP(C) No. 493/2022