Governor Should Not Enter Political Arena, Supreme Court Says While Hearing Shiv Sena Rift Case

The Supreme Court of India on Wednesday (15th February 2023) 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 issue under consideration before the bench was whether the judgement in Nabam Rebia v. Deputy Speaker (2016) should be referred to a seven-judge bench of the Supreme Court. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter. 

After the arguments of the lawyers of Uddhav Thackeray faction and Eknath Shinde faction, Solicitor General of India Tushar Mehta sought to make submissions on behalf of the Maharashtra Governor.

"We don't have a two party system. India is multi party democracy. Multi party democracy means we are in the era of alliances. There are two types of alliances - pre poll alliance, post poll alliance. Post poll is usually an opportunistic alliance to complete the numbers but pre poll alliance is a principled alliance. There was a pre-poll alliance between two political parties – BJP and Shiv Sena. As Kihoto explains, when you go before the voter, you don't go as an individual candidate but as a representative representing a political ideology, a representative who will go and say, this is our shared belief, our shared agenda. The voter doesn't vote for individuals but for the ideology or the political philosophy that the party projects. We hear the word 'horse trading'. Here, leader of stable (Uddhav Thackeray) formed government with those against whom they contested the election (Congress and NCP) and a negative vote was given by the electorate against a particular party."

CJI DY Chandrachud interjected –

"How can Governor be heard to say all this? On the formation of government, how can the Governor say this? When they form a government, governor is asked to give a trust vote...We are only saying Governor should not enter political arena."

The Solicitor General submitted that he was just prefacing his arguments with facts to show that Nabam Rebia was a correct decision, without requiring reference.

He then stated that two constitutional rights that arose in the matter– a. the freedom of expression of the one who was elected, that is, the MLAs and; b. the Right to Conscience.

He stated that – 

"Right to conscience is a right pleaded while challenging the constitutional validity of these provisions(10th schedule). If your lordships were to leave power to the speaker to disqualify even in case of a legitimate dissent exercising the right to conscience, possibly your lordships may have to revisit such challenges."

At this juncture, Senior Advocate Kapil Sibal, appearing for the Uddhav Thackeray faction, interjected–

"How is the governor saying all this? Either his statement should be recorded as the submissions of the governor. We will accept that."

To this, SG Mehta said–

"No, these are my submissions."

Senior Advocate Kapil Sibal was not satisfied and said–

"He cannot have an independent status, independent of Governor. He is not arguing for the governor and is saying that I am arguing in my individual capacity. What capacity? It is not fair. Because if I start talking on "conscience" then I can say that the party in power has a fundamental right to buy off people. Does that party in power have that right?"

The bench intervened and asked SG Mehta to confine his submissions and formulate his submissions.

SG Mehta concluded his arguments by stating–

"Out of 55 elected persons of the party, 40 people want speaker to go. But the speaker says, and CM says that there was no disqualification...Tenth schedule is not a weapon to stifle bonafide dissent but a weapon to control unprincipled defection. This unbridled power takes away the accountability of the leader of the house, accountability to MLAs. They cannot exercise their freedom of expression and conscience."

The arguments will continue today.

Also Read - Uddhav Thackeray vs Eknath Shinde : Why Supreme Court Said It's A Tough Constitutional Issue To Decide?

Issues for consideration in the matter

A 3-judge bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli, that had referred the petitions to the Constitution Bench had framed the following 11 issues for its consideration -

A. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia;

B. Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court as the case may be;

C. Can a court hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?

D. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?

E. If the decision of speaker that a member was incurred disqualification under the Tenth Schedule relates back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?

F. What is the impact of the removal of Para 3 of the Tenth Schedule? (which omitted "split" in a party as a defence against disqualification proceedings)

G. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?

H. What is the interplay with respect to the provisions of the Tenth Schedule?

I. Are intra-party questions amenable to judicial review? What is the scope of the same?

J. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?

K. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.

Background of Petitions before the Constitution Bench

A. Petition preferred by rebel Shiv Sena leader Eknath Shinde (now the Chief Minister) challenging the disqualification notices issued by the Deputy Speaker and plea filed by Bharat Gogawale and 14 other Shiv Sena MLA's seeking to restrain the Deputy Speaker from taking any action in the disqualification petition until the resolution for removal of Deputy Speaker is decided. On June 27, the division bench of Justices Surya Kant and JB Pardiwala had extended the time for the rebel MLAs to file written responses to the Deputy Speaker's disqualification notice till July 12.

B. Petition filed by Shiv Sena Chief Whip Sunil Prabhu challenging the Maharashtra Governor's direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government.

C. Petition filed by Sunil Prabhu, the whip appointed by Uddhav Thackeray-led group, challenging the action of the newly elected Maharashtra Assembly Speaker recognizing the whip nominated by the Eknath Shinde group as the Chief Whip of Shiv Sena.

D. Petition preferred by Mr. Subhash Desai, the General Secretary of the Shiv Sena assailing the decision of the Maharashtra Governor to invite Eknath Shinde to be the Chief Minister of Maharashtra and challenged the further proceedings of the State's Legislative Assembly held on 03.07.2022 and 04.07.2022 as 'illegal'.

E. Petition preferred by 14 MLAs of Uddhav camp challenging the initiation of illegal disqualification proceedings against them under the Tenth Schedule by the newly elected Speaker.

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