Shivsena Crisis | Political Waters Take Different Turns, Not For Court To Speculate: Senior Advocate Harish Salve To Supreme Court

A Constitution bench of the Supreme Court of India comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha continued hearing the pleas concerning the constitutional issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups. In today's hearings, Senior Advocate Harish Salve argued that the matter fell within the domain of politics and it could be perilous for the judiciary to embark upon it.

Nothing Wrong With Governor Swearing In Shinde To Head a Headless Government: Senior Advocate NK Kaul

Senior Advocate NK Kaul, appearing for the Shinde faction, in today's hearing, aimed to establish the inapplicability of various judgements of the Supreme Court which had been relined on by the Thackeray faction to establish their case. He stated that the Thackeray faction had sought to create an artificial distinction between the legislative and political party, but such distinction did not exist as both legislative and political parties were intertwined with one another. He argued–

"If 2(1)(a) of the tenth schedule is attracted, internal dissent which is the bedrock of democracy will be thrown out. My case is that legislature party and the political party go hand in hand and you are seeking an artificial distinction between the two. My case is not that majority cannot be incurred in 2(1)(a). My case is that the speaker has to decide it. That you want to bypass the constitutional functionary and come to Supreme Court."

He further submitted that the submission that the speaker would embark upon a full fledged enquiry was without jurisdiction. He added–

"Ex post facto doesn't mean that since your disqualification is going to be decided, all your acts as MLAs would be annulled. CM lost his majority, coalition couldn't survive, we within the party were the overwhelming majority. Someone has to head the government. Someone has to be sworn in. If someone comes and shows they have majority, what does the governor do? He says prove your majority. What is wrong with that?"

Matter falls within the realm of politics: Senior Advocate Harish Salve

Senior Advocate Harish Salve commenced his arguments by stating that the matter fell within the realm of the politics, and not courts. He said–

"To embark on this journey for court would be extremely perilous. Mr Thackeray resigns. Governor calls for a floor test for a sitting CM. Floor test doesn't happen. How do you know who would have supported whom? What if one of his coalition partners said sorry we don't want to support you? We don't know! And it's not for us to decide as lawyers. This is in the realm of politics. How can your lordships be invited to hazard that guess."

He also argued that the "but-for test" as invoked by Dr AM Singhvi could not apply to the present case as Uddhav Thackeray never faced the floor test and resigned before the same could happen. He added–

"Look at what happened when Shinde came for the floor test. 13 of hardcore supporters of Thackeray abstained from voting! These things happen. These fast moving political waters take different turns at different points. We're not to speculate."

Salve contended that as per the judgement in SR Bommai v. Union of India, 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. He said–

"Governor is to not count heads. Mr Sibal and Mr Singhvi are asking for your lordships to count heads. What the governor cannot embark upon, the judiciary is being asked to embark upon. Nothing can be more perilous."

Salve admitted that there were many "leaks" in the tenth schedule which needed to be fixed but in the present case, everything was academic. He added–

"Yes, the only thing which remains is the 36 disqualification proceedings which the speaker will decide. And if that's incorrect, the High Court is there, your Lordships are there and you can correct it."

He further submitted that the judgement in Nabam Rebia was to be read not as laying down an absence of power but as laying down a code of conduct. He said–

"Till the date of disqualification, the person is entitled to participate and Article 189(2) makes it clear that his functioning in the house in the interregnum, doesn't vitiate any actions of the house. Yes, the rule should be amended, speaker should decide fast, judicial review should be available but the legal consequence of the pendency of proceedings- this is the principle of ex post facto which will apply. It is about the manner of exercise and not the absence of power."

CJI DY Chandrachud orally remarked–

"You don't read Nabam Rebia as an absolute principle that the speaker is disabled from exercising his jurisdiction when there is a motion for his removal pending. It's a caution to the speaker. And ultimately, it's for the speaker to take a call on whether there is a frontal assault on his continuance- whether he would like to go ahead with the hearing of the disqualification petition."

The hearing will now resume on 14th March 2023. 

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

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