Shiv Sena Case | Approving Shinde Faction Will Enable Future Bulk Defections, Any Govt Can Be Toppled : Kapil Sibal In Supreme Court

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 today's proceedings, Senior Advocate Kapil Sibal, appearing for the Uddhav Thackeray faction 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. He cautioned that the court would be enabling defections.

Senior Advocate Sibal contended that previously, the Shinde faction never argued that there existed a split in the party. However, now, the ECI has recognized that there is a split.

"They said they're the real Shivsena. If you're disqualified you cannot be a minister. Now your disqualification is pending before the court. It is pending before the speaker and you're appointed as the minister?".

He further argued that the purpose of the 52nd amendment was to prevent the destabilisation of the government by bulk defection but that was exactly what had happened in the present case. He highlighted that the tenth schedule does not recognize 'split' as a defence and the only defence against disqualification is merger with another party. Therefore, it is immaterial if the Shinde group is the majority within the legislature.

"The concept of minority is over. Bulk majority will also be qualified of disqualification. What they're doing is bulk defection which is what is to be prevented. If this is allowed by court then any government can be toppled. You just take those people, become majority, have a trust vote- topple the government. You don't need a split".

Sibal suggested that the only remedy is to have a law that MLAs who defect will not be entitled to hold any public office for at least the next five years. "The only way to remedy this is to have a five year period of no public post. If you want to maintain morality in public life, you will not be given any office – no governorship, no remunerative posts."

Sibal argued that merely by claiming majority within the legislative wing, a group cannot claim to be the real party.

"There is no contest. There has to be a split in the party. It is nobody's case. They're saying they're the Shivsena. That can only happen if there's a split in the party. Otherwise it's just a normal procedure of taking presidentship of the party. Para 15 of symbol order says that if there are two factions in political party, then the question of symbol will arise. That is nobody's case here. How does the majority in legislative assembly become Shivsena? This has great consequences on the polity of the country. Because now the legislative party believes that it can proclaim to be the political party and throw out office bearers of the political party".

Sibal also took objection to the newly elected Speaker replacing the whip and the legislative party leader of Shiv Sena, replacing the whip and the leader appointed by the party chief Uddhav Thackeray. He argued that it is not for the Speaker to make such appointments but for the Party chief. By making such appointments, the Speaker has acted in an openly biased manner. In such a scenario, there could not be any confidence in this constitutional authority.

However, the bench pointed out that the Parliament has decided that the Speaker will act as the Tribunal under the tenth schedule and this was upheld by the Supreme Court in Kihoto Hollohon case.

Justice PS Narasimha said–

"The parliamentarians have decided that Speaker will be the tribunal. The court is only interpreting. As long as the constitutional judgement (of Kihoto Hollohon) is there, we'll go by this- that the speaker is the tribunal under tenth schedule...unless there is a constitutional amendment or a direct challenge to this..."

Senior Advocate Sibal, furthering his arguments, remarked–

"The fact is that he has no authority in law to decide upon the whip and the leader of the house. I told them that if they take the symbol and then get disqualified, what happens to the symbol? Do we then get back the symbol? Election commission, on 8th Oct, without hearing either of the party, freezed the symbol of bow and arrow. Hearing is mandatory."

He also argued that the Shinde faction did not enjoy an "overwhelming majority" and while they had a majority in two houses, the Thackeray faction also enjoyed majority in two houses. He submitted–

"What we need to note is that he cannot vote contrary to direction issued by the political party. So it's the political party, not the legislative party, who issues directions."

While concluding his arguments, Senior Advocate Sibal stated that the 40 MLAs who joined the Shinde camp had no defence under the tenth schedule. He said–

"They don't claim that there is a merger. They say they are majority in the legislative party. They claim that they can change the whip, they can change the leader of the house. Eknath Shinde calls himself the leader- because he's one of 40. What happens to the political party? He is enjoying the fruits of ministership and says I can do whatever - I can join the BJP, I can go to Gauhati. Under what provision of tenth schedule can they have a defence? The schedule doesn't give them a defence. You cannot destabilize a government. Bulk defections are destroying the polity of the country and elected governments are being toppled. If such an act is upheld by judicial process you are enabling such future defections which will have far reaching impact on polity of the country."

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