Maharashtra Political Crisis : Shiv Sena General Secretary Moves Supreme Court Challenging Actions Of Governor & New Speaker

On Friday, Senior Advocate, Mr. Devadatt Kamat mentioned the petition before a vacation Bench of Justices Indira Banerjee and JK Maheshwari seeking urgent listing of the matter on 11.07.2022 along with Eknath Sindhe's plea against disqualification notices issued to rebel MLAs; the petition filed by Sunil Prabhu, the whip appointed by Uddhav Thackray-led group challenging the action of the newly elected Maharashtra Assembly Speaker recognizing the whip nominated by the Eknath Shinde faction and other related matters. The Bench agreed to list the matter on the said date, before the appropriate Bench.

The present petition filed by Mr. Desai asserts that the action of the Governor in calling Eknath Shinde to take over as the Chief Minister is arbitrary and unconstitutional. It framed the 'seminal' question for the Court's consideration as -

"Under which capacity the Governor recognised the strength of 39 rebel MLAs headed by Respondent No.4 for the purposes of inviting Respondent No. 4 to be the Chief Minister?"

The petition argues that the Constitution prohibits recognition of rebel MLAs of a political party under the Tenth Schedule. It emphasised that the rebel MLAs have not merged in any other political party or formed a new political party. In the said backdrop, even if they have managed to achieve 2/3rd strength of the Legislative party, they would not be protected from disqualification by virtue of para 4 of the Tenth Schedule, which deals with disqualification on grounds of defection not to apply in case of merger. Moreover, it submits that the President of the Shiv Sena (Uddhav Thackray) had also not extended support to the BJP. In the light of the same, the Governor's decision to grant de-facto recognition to the 39 rebel MLAs by calling upon Shinde to be the Chief Minister of Maharashtra is argued to be ex-facie unconstitutional. The petitioner further avers -

"The Governor is also not empowered under law to recognise "Who is the Shiv Sena?". This is the domain of the Election Commission. Admittedly, recognition of the Shiv Sena and its leadership by Uddhav Thackeray has been endorsed by the Election Commission and there was no dispute whatsoever or challenge before the appropriate authority as on 30.06.2022."

Referring to the recommendations of the Sarkaria Commission and the judgment of the Apex Court in Rameshwar Prasad and Ors. v. Union of India and Anr. it asserts that the Governor, in arriving at a satisfaction to invite a Chief Minister, can only recognize 'alliance of parties' and not an alliance of a party and rebel MLAs of another party. It also argues that the Governor's power to invite a person as Chief Minister is not without limits and is amenable to judicial scrutiny. The action of the Governor, the petition submits, is in the teeth of Article 164(1-B) which reads as under -

"(1-B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier."

Shinde was already under a disqualification on 30.06.2022, argues the petition, as his act of approaching the Governor to stake a claim in forming Government on 30.06.2022 and then forming the Government with the former opposition party is itself an act of voluntarily leaving Shiv Sena as per paragraph 2(1)(a) of the Tenth Schedule. It is emphasised that the same has been conveniently ignored by the Governor while deciding to invite him to be the Chief Minister.

With respect to the illegality of the subsequent proceedings of the Assembly, the petition submits that once the action of the Governor is vitiated the subsequent actions would be considered perverse as being the 'fruits of a poisoned tree'. It argues that the party whip appointed by Shiv Sena for election of the Speaker was also disregarded and 'illegal election' for the Speaker took place on 03.07.2022.

"In the present case, the Speaker was elected with an electorate comprising of 39 MLAs of the Shiv Sena against whom disqualification petitions are pending consideration for a violation of Paragraph 2(1)(a) of the Tenth Schedule. Moreso, such members are also in direct breach of the whip issued by the Shiv Sena and thereby attracting Paragraph 2(1)(b) of the Tenth Schedule."

The legitimacy of the vote of confidence held on 04.07.2022 is also assailed in the present petition as the 39 MLAs against whom disqualification proceedings are pending had participated in the said motion. It avers that an 'illegally and unconstitutionally' elected Speaker 'illegally' recognised Shinde as the leader of the Shiv Sena and Mr. Bharat Gogawale as the Whip of the Shiv Sena.

"The Speaker, who is the custodian of the Tenth Schedule to the Constitution, is envisaged to be unbiased in his approach. Shri. Rahul Narvekar, who has been illegally elected as the Speaker of the Assembly, based on the votes of the very 39 MLAs whose disqualification petitions he will be called upon to decide. It is relevant to note that from the actions of Shri. Rahul Narvekar, it is clear that he is neither unbiased nor without prejudice towards the Shiv Sena, cannot be called upon to decide the disqualification petitions which are pending, without breaching the rule of law and the rule against arbitrariness enshrined in Article 14 of the Constitution."

The petition mentions that certain members of the party have already submitted written communication to the Principal Secretary on 03.07.2022 for the removal of Speaker Mr Rahul Narvekar under Article 179 (c) of the Constitution. Considering the peculiar facts of the case, the petition argues, it would be in the interest of justice that the Supreme Court itself decides the disqualification petitions in exercise of power under Article 142 of the Constitution.

"The present writ petition also seeks a prayer that this Hon'ble Court, in the exercise of powers under Article 142, withdraws to itself the proceedings of the disqualification petitions, especially in view of the confusion/ambiguity created illegally by the Speaker by recognising a rebel MLA who has voluntarily given up his membership of the Shiv Sena as the leader of the House and also recognising another rebel MLA as the Whip of the Shiv Sena – both in contravention of the clear intent of the Shiv Sena undisputedly led by Shri. Uddhav Thackeray."

The petition has been drafted by Advocate Rajesh Inamdar

[Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors.]

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