[Maharashtra] Recognising split in legislative party sans merger will lead to toppling of governments: Thackeray faction to Supreme Court

Legislative wing majority alone cannot decide which of the rival factions within a political party has majority and can, therefore, stake claim to be the real party, the Uddhav Thackeray faction of the Shiv Sena told the Supreme Court on Tuesday [Subhash Desai vs Principal Secretary, Governor of Maharashtra and ors]..The submission was made before a Constitution bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha in the case between Uddhav Thackeray and Eknath Shinde factions of Shiv Sena with both factions claiming to represent the real Shiv Sena.Senior Advocate Kapil Sibal, appearing on behalf of the Thackeray faction, said that which of the factions constitutes the real majority within the concerned political party can be decided only outside the assembly by calling a meeting of the entire party organisation as per party by-laws. "Now that is resolved outside the house. How that is resolved outside the house is actually given in a judgment of this court in Brahmananda Reddy," Sibal said.Merely having majority MLAs will not by itself confer right on such faction to claim that they are the real party, Sibal said.If such a proposition is recognised, it will lead to toppling of democratically elected governments and have far reaching consequences. "So you submission is that it will happen outside the house. That cannot be resolved by the number of legislators within the House?" CJI Chandrachud queried."That's my only submission my lord.. you have to follow those by laws, you have to call a meeting, you have to resolve that issue," Sibal said.In this regard he also highlighted frequent defections from the Congress party in Goa."They [Eknath Shinde faction] say they are the Shiv Sena. How does only a legislative majority determine the party? As it happens frequently in Goa, where majority of Congress MLAs defect, can they say they are the Congress? How can they? This is dangerous for our polity. Constitutionally it cannot be countenanced," he said.He also gave the recent example of the recent change in leadership of the Congress party, where former president Sonia Gandhi issued the order in this regard appointing Mallikarjun Kharge as the Congress president. "(Now) could Mr Kharge on his own say he is the leader because he has so many MPs? The same thing with the Whip."The case has its genesis in the split of the Shiv Sena political party into two factions, one led by Thackeray and the other by Shinde, who went on to replace Thackeray as Maharashtra's Chief Minister after the split in June 2022.The constitution bench is hearing a batch of petitions in relation to the political crisis of 2022, which led to a change in power in the Western State.On February 17, the Election Commission had recognised Shinde faction as the real Shiv Sena based on the majority in the Maharashtra assembly. The Shinde faction has 40 MLAs as against the Thackeray faction's 15 MLAs in the assembly.The Supreme Court is considering a slew of legal issues including powers of speaker to decide on disqualification of MLAs, powers of Governor and which faction of a political party can claim to be the real political party in case of a split within the MLAs (legislative wing) of the political party..Sibal, in his arguments today, underscored that if mere split within the legislative wing of a political party is considered a factor for determining which is the real political party, then it could lead to toppling of democratically elected governments at whim. "If you were to uphold this, then any government can be toppled. My lords for the simple reason you take those people become majority appoint your Speaker my lords and have a trust vote and you are in government. You don't need anything else.... you do not need to have a split in the political party," he said.He also contended that the legislative wing (MLAs) of a political party cannot vote in the house contrary to the decision of the political party and such direction is usually given by the whip or the leader of the concerned political party."So what's important here to note is that he (any MLA) cannot vote contrary to any direction issued by the political party. So obviously, in terms of Paragraph 3, it is the political party which issues the direction not the Legislative Party. And the direction is issued through the leader of the political party, normally the whip or the leader of the political party. Such person authorized. So therefore, the political party will authorize such person and he is my lords the whip," Sibal contended..Sibal also sought to distinguish between merger of a legislative wing with another party in the house which is protected by tenth schedule and is outside the scope of 'defection'In such a case, two-thirds of the MLAs have to merge with another party in the house.However, in the present case, the Shinde faction has not claimed that there was any merger but has instead claimed that they are the real Shiv Sena simply because they have numbers within the assembly, Sibal pointed out."They don't claim that there is a merger. They say that they are majority in the Legislative party. They claim that because of that majority, they can change the Whip. They claim that they can change the leader of the House. They can call themselves, Eknath Shinde can call himself the leader mainly because he happens to be one of 40. And so what happens My Lords to the political party to which he belongs? What morality are we talking about," he asked.In such a scenario, the tenth schedule would not come to their aid."You enjoy the fruits of minister-ship, and suddenly you say that - look, now, I am free to do what I want. I can join up with the BJP. I can go to Guwahati or wherever I want to go to and that's it. So the questions that Your Lordships will have to ask My Lords - how does the Tenth Schedule come to their aid at all? Under what provision of the Tenth Schedule can they have a defense? The schedule doesn't give them a defense," he said.Sibal flagged the fact that the Governor had sworn in members against whom disqualification proceedings were pending. "It is the case of people who say they are the party because they are majority in the legislative house. The Governor knows disqualification proceedings are on, and if Governor swears it in then he aids in toppling the government ... Governors have in my respectful submission have acted far beyond their constitutional responsibilities and this was seen in recent past and governors are actively involved in politics of the country." Senior Advocate Neeraj Kishan Kaul for the Shinde faction then pointed out that even if the 39 MLAs from his camp were not counted, the new Speaker had enough numbers to be sworn in. The CJI then asked Sibal,"Should a trust vote be postponed only if disqualification plea is pending. You say that speaker could not have been stultified on June 27 and we adopt this proposition then we have to apply this principle uniformly. We have to be circumspect to replace the institutional system put in place by 10th schedule."Sibal argued that same had been done in the decision in Nabam Rebia. .Sibal cautioned that in the current scenario, any government can be toppled without there being a recognised split in the political party ."If this menace has to be remedied then split in legislative party cannot be recognised as split in political party. The only way to remedy this is no public post for five years the moment you defect; else instead of defecting you resign. This is a way to maintain morality in public life, no remunerative post." Sibal added that such bulk defections are destroying the polity of the country and elected governments cannot be toppled in such a manner. "If such an act is upheld by judicial process you are enabling such future defections, which will have far reaching impact on polity of the country," he said. In a lighter vein, after the bench informed counsel that the transcripts for of the day's hearing would be shared, Justice Narasimha remarked,"I hope you do not file an application for amendment.".[Follow our coverage of today's hearing]