Shiv Sena Case : Brief Recap Of Arguments In Supreme Court

The long-awaited judgment pertaining to the rift within the Shiv Sena party between Uddhav Thackeray and Eknath Shinde groups, which led to the change in the government in Maharashtra in July 2022 is expected to be announced soon. The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha started hearing the matter on February 14 2023 and the judgement was finally reserved on March 16 2023. With Justice MR Shah set to retire on May 15 2023, it is likely that the judgement would come out soon. 

The Shivsena dispute has garnered significant attention and generated intense speculation within the public domain. The outcome of the case will undoubtedly have a significant impact, not only on the Shivsena party but also on the broader political scenario. This article provides with a brief recap to all issues raised and highlights the primary arguments contended by the parties in the matter. 

What is the matter about? 

The batch includes the petitions filed by members from the groups of Shinde and Thackeray over several issues. The first petition was filed by Eknath Shinde in June 2022 challenging the notices issued by the then Deputy Speaker against the rebels under the tenth schedule of the Constitution over alleged defection. Later, the Thackeray group filed petitions in the Supreme Court challenging the decision of the Maharashtra Governor to call for a trust vote, the swearing-in of Eknath Shinde as the Chief Minister of the Government with the backing of BJP, the election of new Speaker etc.

In August 2022, a 3-judge bench led by the then Chief Justice of India NV Ramana referred the petitions to a Constitution Bench, raising the following issues :

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?

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

Hearings before the Constitution Bench 

A preliminary issue was raised by the Uddhav side that the matter should be referred to a larger bench to reconsider the dictum laid down in the Nabam Rebia (2016) judgment that Speakers cannot issue disqualification notices when a notice seeking their removal are pending. The bench heard arguments on the preliminary issue for three days. On February 17, the bench decided to consider this preliminary issue along with the merits of the matter. On the same day, the Election Commission of India passed the order giving recognition to Eknath Shinde as the official Shiv Sena.

From February 21, the bench started hearing the matter on merits. Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, and Devadatt Kamat argued on behalf of the Uddhav side. Senior Advocates Neeraj Kishan Kaul, Harish Salve, Mahesh Jethmalani and Maninder Singh argued for the Shinde side. Solicitor General of India Tushar Mehta argued on behalf of the Maharashtra Governor.

Arguments raised by the Uddhav Thackeray faction

1. Restoration of status quo ante: The Thackeray faction argued that the new government had been elected because of the orders passed by the court on June 27 and then June 29. As per the order of June 27, the Apex Court granted interim relief to Eknath Shinde by extending the time to file responses to the disqualification notices. Later, on June 29, the court gave the go-ahead to a floor test called by the governor. Contending that an initial wrong in a judicial order would result in all subsequent consequences to fall through, the Thackeray faction requested for the restoration of status quo ante as on June 27, 2022 so that parties were restored to the same position as it were but for the interim orders of the court. 

2. Wrongful presumption of "split" in the party: It was contended that the Shinde faction never argued that there existed a split in the party. Despite the same, the ECI has recognized a split in the party. Further, the tenth schedule did not recognize split as a defence and the only defence against disqualification was merger with another party. Para 3 of the tenth schedule (which accepted split as a defence) was deleted and if the Parliament deleted something from the Constitution, full weight had to be given to that intention of deletion. Additionally, due to split not being recognised as a defence, it was immaterial if the Shinde group was the majority within the legislature or not. 

3. Toppling of government: It was submitted that if the court upholds the Eknath Shinde faction as the official Shiv Sena, it could set a precedent for toppling down any government and would enable defections. 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.

4. Speaker acted in a biased manner: The Thackeray side took objection to the newly elected Speaker replacing the whip and the legislative party leader of Shiv Sena appointed by the party Chief Uddhav Thackeray. It was argued that it was not for the Speaker to make such appointments but for the Party Chief. By making such appointments, the Speaker had acted in an openly biased manner. In such a scenario, there could not be any confidence in this constitutional authority.

5. No defence under the tenth schedule: The 40 MLAs who joined the Shinde camp had no defence under the tenth schedule. Members of the legislative assembly could not act independent of their political party. Further, through his actions, Eknath Shinde had per se voluntarily given up the membership of the house.

6. Governor acted unconstitutionally: It was also argued 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.

Arguments raised by the Eknath Shinde Faction

1. Governor had no option but to conduct floor test: The Shinde faction stated that the moment the support for the Ministry was withdrawn, the only option left for the governor was to conduct a floor test. Thus, the Governor was not wrong in asking for a floor test as an overwhelming number of MLAs had written to him and expressed that the Ministry no longer enjoyed majority.

2. Shinde faction represented 'the real Shivsena': As per the Shinde group, there were no arguments on 'split' in the party as their argument was that they represented the real Shiv Sena and were now recognised as such by the Election Commission of India.

3. No distinction between legislature party and political party: Stating that there was no distinction between legislature party and political party, Shinde faction argued that legislature party had the authority of the political party. It was argued that they never claimed to be a new political party, but as a faction, represented the recognised political party. 

4. Matter within the realm of politics: Another argument by the Shinde group was that the matter fell within the realm of the politics, and not the courts. It was argued that the Speaker could not get into the issue of which group was the real political party, while exercising jurisdiction under the tenth schedule, as that was a question to be decided by the Election Commission. The Election Commission had recognised Shinde faction as the real Shivsena. In this backdrop, the opposite side had invited the top court to ‘bypass’ the entire constitutional machinery of constitutional authorities and decide the disqualification petitions. Thus, accepting the petitioners’ prayers would amount to transgressing into an entirely political field. 

5. Thackeray never faced floor test: It was contended that the "but-for test" as invoked by Thackeray faction (to state that the new government would not have been elected but for the court orders) could not apply to the present case as Uddhav Thackeray never faced the floor test and resigned before the same could happen. Further, the Speaker or the Governor were not entrusted with mathematics to determine majority, rather, the governor was entrusted with the task of calling for a floor test. In a situation where Thackeray resigned before the floor test could take place, they had to ensure that the "headless government" did not fall.

6. Intra-party dissent an element of the constitutional scheme: It was also argued that intra-party dissent was an element of the constitutional scheme and the democracy and could not be considered illegal.

Arguments raised by the Governor

The primary contention raised by the Governor was was that owing to the objective material provided to the Governor, which included the resolution moved by 34 Shinde group MLAs reaffirming leadership of Eknath Shinde, the letter by 47 MLAs about violent threats issued by the Uddhav faction against them, and the letter by the leader of opposition, the Governor was duty bound to call for a floor test. Stating that it was the constitutional responsibility of the Governor to ensure that the government enjoys the support of the house, it was argued that running the government after losing the trust of the house was a sin to which the Governor could not have been a party.

It was also submitted that whether it had been a floor test or a no-confidence motion, the result would have been the same.

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