A Constitution bench of the Supreme Court of India, on 16th March 2023, reserved its judgement in the batch of cases relating 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. On the last day of the hearing, the bench comprising Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the rejoinder of the Uddhav Thackeray faction argued by Senior Advocate Kapil Sibal, Senior Advocate AM Singhvi, and Senior Advocate Devadatt Kamat. The primary queries raised by the bench to them can be found here.
Senior Advocate Kapil Sibal, in his rejoinder, highlighted that in the relationship between the legislature party and political party, the political party had primacy. He stated that the will of legislators was subject to the functioning of political party both inside and outside the house. He added that while dissent could take place outside the house, it had no place inside the house. Sibal said–
"There is no space for factions when the governor has to appoint a CM. Now if all of Shivsena had gone to BJP, the Governor would have called for floor test - if Shivsena itself went. The governor's acts placed a premium on the unconstitutional acts of the faction, allowing them to topple the government. He went outside the scheme of the tenth schedule."
At this juncture, Justice PS Narasimha raised a concern whether this will be a "dangerous" proposition, considering the fact that most regional parties are family-run allowing no space for alternate leadership.
"This argument could sometimes be dangerous also because there is absolutely no freedom in the party except for one leader. Many a times it's one family which runs it. There's no scope for anybody else coming into the frame. You're interpreting the Constitution to say that it's just not possible for any legislator."
To this, Sibal responded that in the US and the UK - a president of the Republican party had to reach out to Democrats to get a bill passed and there was no such thing as defection. However, the same was not the case in India. He added–
"You can't let democracy be destabilised in this callous, uncouth fashion."
CJI DY Chandrachud, providing a hypothetical situation to test the arguments forwarded by Sibal asked–
"Now suppose government has 'x' number of legislators. Take a case where 'x' divided by 2 say we have no faith in this government. Now going by your logic, the Governor can never call a trust vote because he'll say look you've been elected as members of the house, you can't say you've lost faith. In this case the government now only has 'x' by 2 of its confidence, the government has to continue. It's basically reduced to a minority."
Sibal answered–
"The session is on. Finance bill is to be passed. Vote against it. The government will fall. What is the problem? What they want is, they want to topple the government, become CM- this isn't constitutionally permissible".
Sibal said that if the rebels had lost faith in the alliance, they should have resigned as legislators and sought the mandate of the people in re-elections.
CJI Chandrachud highlighted that the basic principle of Parliamentary democracy is that the Government must enjoy the faith of the house. "The only problem is that the basic principle of parliamentary democracy is that government has to be accountable to and must have the faith of the house".
"Prime Minister Narasimha Rao ran the minority government. It's not as if government can't be run by minorities. Point is they don't want to lose membership of the house....don't have to say more. My political experience and your judicial experience is enough to understand this. We've reduced ourselves. We're mocked. People don't believe us anymore", Sibal stated.
Senior Advocate Abhishek Manu Singvhi, also appearing for Uddhav side, furthered Sibal's arguments. He said that a dissident group within a party had four options- split, merger with another party, resign and re-contest or approach the Election Commission. Split is not accepted by the tenth schedule, however other options are permissible.
"Here, you don't resign, you don't go to the ECI up until much later. What you do is a three step novel procedure to annihilate the tenth schedule. Step one is you disable the speaker by a mere notice. Step two is to forward resolutions parallel to the Governor. Step three is the act of being sworn in as Chief Minister with another party fully supporting in whose lap you were in Guwahati."
CJI DY Chandrachud interjected and stated that merger was not an option for the Shinde group, as it would deprive them of the political identity as Shiv Sena.
Singhvi argued that regardless of whether they wanted to merge or not, it was a constitutional option available to them. He added–
"Everyone has dissent- every political party. But there are enough in-built mechanism to deal with it. Dissent in party can be dealt with on appropriate fora. Or you resign."
Finally, Senior Advocate Kamat made his submissions and argued that the term political party was not an indeterminate concept. He stated that while there may be factions claiming that they are the political party, the same could not be recognised by the Governor. He also argued that having a legislative majority ipso facto or ipso jure was not indicative of having majority. Concluding his arguments, he said–
"ECI has said we have to see organisational majority. Time and again, my learned friends have said that we've never claimed a split. Kindly see their submissions before the ECI. ECI says it's evidenced that there is a split in Shivsena. Their written submissions say there is a split."
On the previous day, the Court had put questions to the Governor on his decision to call for a floor test on the basis of the rebellion of Shinde group (reports can be read here and here).
Also Read - Shiv Sena Case | How Can Court Reinstate A CM Who Did Not Face Floor Test? Supreme Court Asks Uddhav Thackeray Side
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