Who is the 'Real' Shiv Sena? Supreme Court Says 'Tough Constitutional Issue' to Decide

File Photo

New Delhi: The Supreme Court said on Wednesday the issues related to the Maharashtra political crisis, triggered by the differences in the Shiv Sena, are "tough" constitutional questions to decide as they have "very serious" ramifications for the polity. Expressing disagreement with the submission of senior advocate Harish Salve, appearing for the Eknath Shinde faction of the Shiv Sena, a five-judge constitution bench headed by Chief Justice D Y Chandrachud said the issue is not merely an academic exercise.

"It's a tough constitutional issue to answer for this reason because the consequences of both positions have serious ramifications on the polity. If you take Nabam Rebia (2016 SC judgement) position, as we have seen in Maharashtra- it allows the free flow of human capital from one political party to another.

"On the other end is that even if the leader of the political party has lost his flock, he can hold it down. So, adopting it would mean ensuring a political status quo though the leader has effectively lost his or her leadership over a group of legislators if we go against Nabam Rebia. Whichever way you accept, both ends of the political spectrum have very serious consequences. Both are not desirable," the court observed.

In 2016, a five-judge constitution bench, while deciding the Nabam Rebia case of Arunachal Pradesh, had held that the assembly speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking removal of the speaker is pending decision in the House. The judgement had come to the rescue of the rebel MLAs led by Eknath Shinde, now the chief minister of Maharashtra. The Thackeray faction had sought their disqualification even while a notice of the Shinde group for the removal of Maharashtra Assembly deputy speaker Narhari Sitaram Zirwal, a Thackeray loyalist, was pending before the House.

At the outset, Salve opposed the reference of the cases related to the Maharashtra political crisis to a seven-judge bench for reconsideration of the 2016 judgment on the powers of assembly speakers to deal with disqualification pleas. Salve submitted before the bench, which also comprised justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, that the issues which have now transpired are such that there is no need for reference.

The anti-defection law is not a law for a leader who has lost the faith of his members, he said, adding these are delicate constitutional issues that should be resolved in a fit case where such issues arise. "Do such issues arise here? The answer is a resounding, 'no'," he said.

Salve said the issues for consideration, in this case, are an "academic exercise", especially after the resignation of Uddhav Thackeray as the Maharashtra chief minister following realisation that he will not pass the floor test.

"It's not academic. If there was no communication from Governor (for floor test), then Uddhav Thackeray wouldn't have resigned. If he had to face the assembly, he didn't have the numbers," the court responded.

Salve said the top court should not waste its "precious judicial time" in reconsidering the Nabam Rebia judgment. Senior advocate Neeraj Kishan Kaul, appearing for the Shinde faction, said internal dissent in a party is the essence of democracy and should be encouraged. "Internal dissent within a party is the essence of democracy. Merely because there is a struggle to remove the leader of a party doesn't mean that it is under Tenth Schedule (disqualification law). We are the Shiv Sena. We represent the overwhelming majority.

"We are talking about an internal dissent in a political party where an overwhelming majority is saying that we have lost faith in Mr Thackeray. Such internal dissents should be encouraged," he said. Kaul said a "hopeless minority" of MLAs met and passed a resolution removing Shinde as the leader.

"The impression being given to your lordships is that this is murdering democracy, this is leading to horse trading, toppling government. What needs to be addressed is that within your own party there is dissent. If a leader has lost confidence within party, how can he be CM?" Kaul submitted.

Solicitor General Tushar Mehta, appearing for the Maharashtra Governor, also opposed any move to refer the matter to a larger bench. He said there should be compelling reasons and clear, cogent, and apparent errors for making a reference to a larger bench, especially considering that the judgment in the Nabam Rebia case was rendered by a constitution bench.

Mehta said the 10th schedule is not a weapon to stifle bonafide dissent but a tool to control unprincipled defection. "This is merely an academic exercise. The focal point of election law, that is the voter, finds no place in arguments. We don't have a two-party system. India is a multi-party democracy. Multi-party democracy means we are in the era of alliances. There are two types of alliances - pre-poll, and post-poll. Post-poll is usually an opportunistic alliance to increase numbers but a pre-poll alliance is a principled alliance.

"There was a pre-poll alliance between BJP and Shiv Sena. As Kihoto Hollohan's judgment explains, when you go before a voter, you don't go as an individual but as a representative with your shared belief or agenda. The voter doesn't vote for individuals but for ideology of the party," Mehta said.

The Solicitor General submitted that the leader of the party (Thackeray) formed a government with those against whom he fought in the election. The CJI then remarked," But Mr Mehta how can the Governor say all this on the formation of the government between Shiv Sena and BJP? The Governor should not enter the political arena." Mehta, who was representing the governor, said he was only pointing out facts for facilitating a constitutionally correct decision.

He said if a speaker is allowed to disqualify members on the basis of right to conscience, then such rights have to be revisited. Senior advocate Kapil Sibal, appearing for Shiv Sena (Uddhav Balasaheb Thackeray), objected to Mehta's submission.

On Tuesday, Sibal along with advocate Amit Anand Tiwari, had submitted it's time for a relook at the Nabam Rebia judgement as the Tenth schedule is being misused by all governments and has been used to further political immorality. The hearing will continue on Thursday when senior advocate Mahesh Jethmalani will make submissions for the Shinde group.

The political crisis in the state had aggravated after the rebellion in the Sena and, on June 29, 2022, the apex court had refused to stay the direction of the Maharashtra governor to the 31-month-old MVA government to take a floor test in the assembly to prove its majority after which Thackeray quit office.

On August 23, 2022, a three-judge bench of the top court headed by then chief justice N V Ramana, since retired, had formulated several questions of law and referred to the five-judge bench the petitions filed by the two Sena factions raising several constitutional questions related to defection, merger and disqualification.

It had said the batch of petitions raised important constitutional issues related to the 10th Schedule of the Constitution pertaining to disqualification, powers of the speaker and governor and judicial review.

The apex court had said the proposition of law laid down by the constitution bench in the Nabam Rebia case stands on a contradictory reasoning which requires gap filling to uphold constitutional morality.

The 10th Schedule of the Constitution provides for prevention of defection of the elected and nominated members from their political party and contains stringent provisions against defections.