[Maharashtra politics] You filed petition first, got interim relief; now you cannot say ignore other side: Supreme Court to Eknath Shinde camp

In the batch of petitions filed in relation to the Maharashtra political battle, the Supreme Court on Wednesday took an unfavourable view of the arguments by Chief Minister Eknath Shinde's camp that the petitions by Uddhav Thackeray camp on disqualification of Shinde faction MLAs and the proceedings before Election Commission with regard to Shiv Sena symbol, are not maintainable. .A bench led by Chief Justice of India (CJI) NV Ramana observed that it was the Shinde camp which had first approached the top court and secured interim relief leading to the fall of the Thackeray government. Hence, the bench asked how the Shinde faction can now question the maintainability of Thackeray camp's petitions arising from the same set of facts. "Who came to the court first? Your submissions are leading to the point that you filed a writ and you got some time for 10 days and now other petitions should be ignored," CJI Ramana remarked. The petitions raise a number of questions including on the powers of the Governor and it cannot be ignored, the bench added. The bench was responding to arguments by Shinde's counsel Senior Advocate Harish Salve that the issue raised in the petitions boils down to which of the factions is the real Shiv Sena and that the same has to be decided by the Election Commission by leading evidence and not the Supreme Court. "Today there is a speaker who has been elected by majority of the house and it is being asked to strip the speaker of the power and the Supreme Court will become the anti defection tribunal and this court will become the court of trial! this is unprecedented," he said.The case stems from the events that gripped the State last month when Maharashtra was thrown into a political crisis after Shinde and a rebel group of MLAs left the State first for Surat and then for Guwahati. The Shinde group had expressed its displeasure with the Shiv Sena's alliance with the Congress and Nationalist Congress Party, then headed by Uddhav Thackeray.Some of the rebel MLAs then received disqualification notices from the then Deputy Speaker for acting against the party whip while voting during the Member of Legislative Council (MLC) elections in the State. The rebel MLAs then approached the top court against the disqualification notices.The Supreme Court on June 27 granted interim relief to Shinde and his rebel group of MLAs by extending the time to file responses to the disqualification notices sent by the Deputy Speaker, till July 12.Subsequently, the Court on June 29 also gave the go-ahead to a floor test called for by the Governor Bhagat Singh Koshyari.This led to the fall of the Thackeray government and Shinde took oath as Chief Minister with the backing of the BJP which is the single largest party in the house.Thackeray camp meanwhile filed various petitions before the top court. One of the petitions has challenged the illegal summoning of the Assembly by the Governor of Maharashtra for conducting the floor test.Another petition challenged the illegal order of the newly appointed speaker removing Ajay Chaudhary and Sunil Prabhu respectively from the posts of leader as well as Chief Whip of the Shiv Sena Legislature Party.The Shinde faction meanwhile approached the Election Commission to decide which is the real Shiv Sena - the Shinde camp or the Thackeray camp. The Thackeray camp then moved the Supreme Court contending that the Election Commission should be restrained from deciding Shinde camp's plea unless the petition on the disqualification of the Shinde MLAs is decided by the Supreme Court.The arguments on Tuesday primarily revolved around whether the 39 MLAs of the Eknath Shinde faction joining hands with BJP against the decision of the party whip would constitute defection under the Tenth Schedule of the Constitution. The argument of Shinde camp was that since they constitute more than 2/3 of the Shiv Sena MLAs in the assembly, the Tenth Schedule will not kick in.The Thackeray camp, however, contended if they want to act against party whip, they have to either form a new party or merge with the BJP even if they have 2/3 majority. .Arguments by the Uddhav Thackeray camp.Senior Advocate Kapil Sibal, appearing for the Uddhav Thackeray camp, contended that there was a split in Shiv Sena and the same has been admitted by the Shinde faction before the Election Commission.He submitted that every act of the Shinde faction amounted to voluntarily giving up party membership, and since they have been disqualified, they could not approach the Election Commission. "There is no constitutional protection for disqualification under the tenth schedule. So you either have to merge or form a new political party," he said. That holds true even if the split camp has a majority of MLAs on their side, he maintained."What if 2/3rd comes from original political party. Out of 100 MLAs, if 75 say we are the main party and not the 25, does this new group have to register afresh," the CJI asked. "They have to register it or merge with BJP," Sibal replied.It was submitted that by not attending the meeting called on June 21, 2022 it was demonstrated that membership was given up. "You sit in Guwahati and say that you are the party and nothing to do with the original one," he said.It was his contention that simply by being elected one does not sever the umbilical chord with the political party."They are using the tenth schedule to encourage defection and this is how governments are being toppled," the senior counsel further stated. Every move by the Shinde camp violates tenth schedule, he said."Every act of Shinde faction violates Para 2(1)(a) and amounts to voluntary giving up party membership. Which is why they say they want to go to ECI. What will ECI do here? If you are disqualified, you cannot go to ECI. All decisions by them are illegal then," Sibal said.All such decisions will also affect the destiny of the people of Maharashtra, he added..Senior Advocate AM Singhvi also buttressed these arguments, submitting that the evil and constitutional sin of defection was so great that it does not recognize majority. He contended that the only way to legitimise the wrong, was to recognize the illegal political party."The anti defection law is being turned on its end. Majority itself ipso facto becomes the party which the 10th schedule aims to stop. The end does not justify the means."He underscored that the game plan was to use the interregnum to both legitimise the entire proceeding, and also fast-track the proceeding before the Election Commission..Arguments by the Eknath Shinde camp.Senior Advocate Harish Salve contended that anti-defection law cannot be used as a weapon by the leader who lost the numbers to lock their members."According to you after election you have nothing to do with the party," CJI Ramana asked.Salve responded that, in the present case, there was no defection. It was his stand that a significant number of party members were dissatisfied with the way the Chief Minister (CM) was working and held a fresh leadership contest."There is no intra party defection. Original political party is the party to which I belong. I am a dissenting member of the party. If it is held that I cannot dissent within party then it will not be anti-defection law but it will be anti-party democracy. Didn't this happen in 1969 within Congress," he asked.Further, it was submitted that despite the speaker being elected by majority in the house, the Thackeray camp was asking to strip the speaker of power while turning the Supreme Court into an anti-defection tribunal."This is unprecedented. I am saying it is misconceived, not infructuous. We have to first see if anyone has left the membership of political party at all."The Senior Counsel also clarified that he was taking the plea head on, and was not changing ground simply after receiving a favourable interim order..Senior Advocate Neeraj Kishan Kaul, also appearing for Shinde camp, said that the plea by Thackeray camp to restrain ECI from proceeding, amounted to asking the court to bypass all coordinate constitutional bodies."Who will be disqualified and who will not be disqualified, speaker decides it," he said.Senior Advocate Mahesh Jethmalani went on to say that the Thackeray camp's entire argument was based on "deemed disqualification", but the question of disqualification will arise only after the speaker decides on it.He emphasised that the speaker's election was by the full house, and majority could not be subjected to judicial review..Solicitor General of India Tushar Mehta submitted that the questions involved in the case would have an impact on the body politic of the nation. In this regard, he enumerated certain issues relating to the tenth schedule that the court will need to consider..The hearing in the case will continue on Thursday..[Read our live-coverage of the hearing here]