Shiv Sena leader Eknath Shinde could not have been sworn in as the chief minister of Maharashtra if the assembly speaker was not restrained from deciding the disqualification petitions pending against 39 MLAs, the Supreme Court on Wednesday said.
The Shinde faction told the court that even if 39 MLAs would have been disqualified from the assembly, Maha Vikas Aghadi (MVA) government would have fallen because it had lost majority and the then chief minister Uddhav Thackeray had resigned before the floor test.
The Thackeray faction had earlier told the court that the formation of a new government in Maharashtra under Shinde was the "direct and inevitable result" of two orders of the Supreme Court dated June 27, 2022 (restraining the speaker from deciding the pending disqualification petitions) and June 29, 2022 (allowing the trust vote to be held) and had "disturbed the co-equal and mutual balance" between judicial and legislative organs of the State.
A five-judge constitution bench headed by Chief Justice DY Chandrachud told senior advocate Neeraj Kishan Kaul, appearing for Shinde bloc, "They (Uddhav faction) are right to this extent that Eknath Shinde was sworn in as chief minister by the governor and was able to prove his majority because the speaker was not able to proceed with the disqualification proceedings against him and other MLAs." Mr Kaul said that just after June 29, 2022, Mr Thackeray had resigned because he knew that he did not have a majority and in the floor test held on July 4, last year, his coalition had got only 99 votes as 13 of MVA legislators had abstained from voting.
On July 4, last year, Mr Shinde had won the crucial floor test in the state assembly with the support of BJP and independents. In the 288-member House, 164 MLAs had voted for the motion of confidence, while 99 voted against it.
Mr Kaul said, "They (Thackeray faction) knew that they did not have a majority and even his 13 MLAs, who were earlier supporting them had abstained from voting in floor test. Shinde and other MLAs could not have been disqualified as the 2016 Nabam Rebia verdict of the top court would have come into play, which said that the Speaker could not decide on the disqualification petitions, if a motion for his removal was pending. Until he is disqualified, he continues to be the member of the house."
The bench after perusing a chart of voting in floor test given by Mr Kaul said that even if the court assumed that 2016 Nabam Rebia verdict did not exist, the speaker would have proceeded to disqualify those MLAs but yes, even if they had been disqualified, even then the government would have fallen.
Mr Kaul said, "Exactly. The chief minister had resigned before the floor test and the combination which came forward before the governor was asked by him to prove his majority on the floor of the house. I say, what is wrong in it? What else could he (governor) have done." At the outset, Mr Kaul submitted that Shinde faction was never against Thackeray but was against the party continuing in the MVA and even their resolution dated June 21, 2022 said that there was widespread discontent among cadres.
"Our case was never that we were against the then chief minister but we were against the MVA coalition. Shiv Sena had a pre-poll alliance with BJP and after the election, we formed a government with the help of the NCP and Congress, against whom we contested the election. We said in our resolution that there was widespread discontent among party workers," he said.
He submitted that the Uddhav faction has tried to confuse powers of three constitutional authorities - Governor, Speaker and the Election Commission - and now want that everything should be set aside including July 4, last year floor test. "Legislative party is an integral part of the original political party. We have raised our voice in the party. The very act of filing disqualification petitions with the speaker by them (Uddhav faction) was to stifle dissent. Internal dissent within the party does not qualify for disqualification under the tenth schedule," Mr Kaul submitted.
The hearing remained inconclusive and would continue on Thursday.
On Tuesday, the court had asked the Shinde-led faction if its move to go against the Shiv Sena party's wish to continue with the coalition in the MVA amounted to indiscipline leading to disqualification.
Defending its stand, the Shinde faction said the legislative party is an integral part of the original political party and informed that there were two whips appointed by the party in June last year and it went with the one that said it did not want to continue in the coalition.
On February 23, the Uddhav faction told the court that the formation of a new government in Maharashtra under Mr Shinde was the "direct and inevitable result" of two orders of the court that "disturbed the co-equal and mutual balance" between judicial and legislative organs of the State.
A political crisis had erupted in Maharashtra after an open revolt in the Sena and, on June 29, 2022, the court refused to stay the Maharashtra governor's direction to the 31-month-old MVA government to take a floor test in the assembly to prove its majority.
On August 23, 2022, a three-judge bench of the top court headed by then chief justice N V Ramana had formulated several questions of law and referred to the five-judge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection, merger and disqualification.
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