Former Maharashtra Chief Minister Uddhav Thackeray said in the Supreme Court on Tuesday that the State’s Governor had sworn in Eknath Shinde as Chief Minister fully knowing that he was facing disqualification proceedings under the anti-defection law.
“Can a Governor swear in an MLA against whom a disqualification proceeding is pending before the House? The issue has never come up before,” senior advocate Kapil Sibal, appearing for the Thackeray faction, submitted before a Constitution Bench led by Chief Justice of India D.Y. Chandrachud.
Mr. Sibal said that a wrong inference had been made that there was a “split” in the Shiv Sena just because some legislators who formed the Shinde faction did not agree with the leadership.
“Legislators are there because of the party. Can they sever the umbilical cord with the party and say ‘we can do what we like’? Your Lordships need to analyse the role of the whip here. The whip is the bridge between the legislative party inside the House and the political party outside,” Mr. Sibal argued.
Chief Justice Chandrachud asked Mr. Sibal whether he meant that “unless there was a split within the political party, it cannot find recognition within the legislative party in the House”.
Mr. Sibal indicated that legislators were bound by the political party line. They could not go off on their own or claim there was a split of the party.
“For example, the political party outside the House decides the stand of the party on a Bill. The legislative party in the House cannot decide on its own what a party is or not going to do... The whip is issued outside the House and translated into action in the House,” Mr. Sibal contended.
“But if there is a merger, the Speaker decides inside the House. The Speaker’s remit does not lie outside the House,” the Chief Justice intervened.
But Mr. Sibal responded that a merger took place outside the House. “That would mean unless the Election Commission takes a decision outside the House, the Speaker cannot decide within the House whether there is a merger or not. That can’t be,” Chief Justice Chandrachud observed.
During the hearing, Mr. Sibal said a particular judicial order of the Supreme Court on June 27 last year had led to events that culminated in the formation of the Shinde government.
On June 27, the court had allowed Mr. Shinde and his 15 supporting legislators time till July 12, 2023, to respond to a disqualification notice issued by then Deputy Speaker Narhari Zirwal on June 25 under the Tenth Schedule.
A Vacation Bench of Justices Surya Kant and J.B. Pardiwala had heeded their contention that they were given hardly 48 hours to respond to the disqualification notice when the law required the Speaker to grant them seven whole days.
“Nothing in the Tenth Schedule should be interpreted to somehow legalise defection. Attempt by the court and the House should be to allow an elected government to function. But unfortunately the June 27 order led to this situation now. Had it not been passed, we would not have been here,” Mr. Sibal submitted.