Shiv Sena Crisis | 'I Stand Here Not Just For This Case, But For Protection Of Constitutional Processes' : Sr Adv Kapil Sibal To Supreme Court

The pleas pertaining to the Maharashtra political crisis are currently being heard by a Constitution bench of the Supreme Court comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha. In today's proceedings, Senior Advocate Kapil Sibal, appearing for the Uddhav Thackeray faction, argued that the governor's actions in the political crisis have been unconstitutional. 

While concluding his arguments, Senior Advocate Kapil Sibal said–

"I stand here not for this case- I may win or lose it. I stand here for the protection of what is so close to our heart- institutional integrity and to ensure that constitutional processes survive. If your lordships uphold this, it would be the death knell of what we've upheld since 1950s."

The Senior Advocate was contending that the Governor was not empowered in law to recognise rebel MLAs of a political party and legitimize their actions as the power to recognize who represents a political party fell within the domain of the Election Commission. He argued that the fact that the Governor gave an audience to Eknath Shinde and gave him an oath as the Chief Minister raised questions about his actions. He said–

"Uddhav Thackeray was the president of Shivsena. In what capacity did the governor give an audience to Eknath Shinde and gave him an oath as CM? The governor by his recognises a split, which is not a valid ground under the tenth schedule. This is not a stage when government is being elected. This is a stage when an elected government is running."

Through his arguments, Senior Advocate Sibal further elaborated upon the discretionary powers of the governor and stated that as per the judgement in Nabam Rebia, the Governor only had discretionary powers in situations arisen under Article 371, Article 200, and Article 356 of the Constitution and in cases where the forming of a government was at the initial stage after election. He submitted–

"There is no discretion after elected government is formed. If there is a no confidence motion or the government falls, then the governor has discretion. But a governor by his act cannot topple the government. When the governor was approached by Eknath Shinde and BJP, and governor told us to have a trust vote, on what basis did he ask us? He obviously recognised the 39, otherwise he wouldn't have asked us for a trust vote. Ultimately, the facts are so crystal clear that they can't be subject of yet another interpretation."

At this juncture, CJI DY Chandrachud posed a question to Senior Advocate Sibal to seek clarity on whether the Governor of a state could call for a motion of confidence if a group of MLAs incurred disqualification and lost their seat in the house. CJI Chandrachud asked–

"Once a person incurs a disqualification, then the consequence under Art 193(3) is that his seat becomes vacant. So suppose a group of MLAs incurs a disqualification, strength of house falls by extent of disqualification. In which case, the majority requires a motion of confidence. So would the governor in such a case be justified in saying that I still want a vote of confidence?"

Sibal argued that it was not for the Governor to call for a trust vote in such a scenario, but for the people in the house to approach the Governor. He stated that the Governor must come to the conclusion that the leader of the house has lost the majority when somebody approaches him. CJI Chandrachud suggested that both the opposition and the defecting MLAs could approach the Governor, but Sibal disagreed, saying that they cannot.

CJI DY Chandrachud, continuing the discussion, said–

"The governor cannot enter the thicket of disqualification. The governor cannot do anything to protect those who have seen the wrath of disqualification - that we're with you. Equally, what is of concern is that there is a constitutional principle which is that whoever is sworn in as a CM must have accountability to parliament, and therefore to the people. Defection affects the stability of the government itself. How does the governor as a head of the state ignore the consequence?"

To this, Sibal, while stating that "let's not tread into areas which we're not asked to tread upon", reiterated that the issue at hand was how the MLAs went to the Governor who recognized them, knowing that they were still in Shivsena, and administered the oath of office. He contended that regardless of the majority or minority, destabilizing a government was not acceptable. He added–

"If BJP thought we had lost the majority, they should have moved a motion. What are the 39 MLAs? They're still Shivsena. So he recognises the split. That's the problem. Majority or minority, you cannot destabilize a government. Ideally, the governor should have said no further action, get decided upon your disqualification and then I'll decide."

Continuing his submissions, Senior Advocate Sibal criticised the actions of the governor as improper and stated–

"The way to ensure that the government doesn't fall is to move the no confidence motion. Why didn't they move? The only way out for them was this conspiracy which was hatched much earlier. That's why they went to Gujarat and Assam. How could the trust vote be called? Trust vote means you have prima facie lost confidence. Governor knows that this government hasn't lost confidence. If they were so concerned, they should have voted against the whip."

Stating that it was essential for the Governor to ask what party the rebels belonged to, he submitted–

"Your lordships have noticed that Gogawale was appointed as whip from Assam. Whips cannot be appointed in this fashion. Speaker recognises Gogawale. Then legislators are issued notice of disqualification."

The senior counsel also raised his objections to the actions of the Election Commission of India, which as per him, had misused the order of the Supreme Court. He said–

"The commission cannot disregard basic principles- that you're giving symbol to those 39 whose disqualifications are pending and that issue is pending before this court. The jurisdiction of the commission starts when there are claims of rival groups within a political party. There is not a whisper of any rival groups. It's only these 39. There is no summons for any meeting, no venue, no time, nothing for the meeting. What they do is send translation of minutes of meeting and resolutions passed. Minutes, as we know, are after the meeting. This petition is filed on 19th July and the minutes are dated 27th July. This is what they filed. 19th July they could not have known what happens on 27th and make minutes. These are the two documents with ECI. If this kind of manipulation in the process of institutional decision making, I don't know where we'll go."

Sibal concluded his arguments today.

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