The Supreme Court of India on Wednesday (15th February 2023) continued hearing the pleas concerning the constitutional issues arising out of the rift within Shiv Sena party between Eknath Shinde and Uddhav Thackeray groups. The issue under consideration before the bench was whether the judgement in Nabam Rebia v. Deputy Speaker (2016) should be referred to a seven-judge bench of the Supreme Court. The bench comprising CJI DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha heard the matter.
After the arguments of the lawyers of Uddhav Thackeray faction and Eknath Shinde faction, Solicitor General of India Tushar Mehta sought to make submissions on behalf of the Maharashtra Governor.
“We don’t have a two party system. India is multi party democracy. Multi party democracy means we are in the era of alliances. There are two types of alliances – pre poll alliance, post poll alliance. Post poll is usually an opportunistic alliance to complete the numbers but pre poll alliance is a principled alliance. There was a pre-poll alliance between two political parties – BJP and Shiv Sena. As Kihoto explains, when you go before the voter, you don’t go as an individual candidate but as a representative representing a political ideology, a representative who will go and say, this is our shared belief, our shared agenda. The voter doesn’t vote for individuals but for the ideology or the political philosophy that the party projects. We hear the word ‘horse trading’. Here, leader of stable (Uddhav Thackeray) formed government with those against whom they contested the election (Congress and NCP) and a negative vote was given by the electorate against a particular party.“
CJI DY Chandrachud interjected –
“How can Governor be heard to say all this? On the formation of government, how can the Governor say this? When they form a government, governor is asked to give a trust vote…We are only saying Governor should not enter political arena.“
The Solicitor General submitted that he was just prefacing his arguments with facts to show that Nabam Rebia was a correct decision, without requiring reference.
He then stated that two constitutional rights that arose in the matter– a. the freedom of expression of the one who was elected, that is, the MLAs and; b. the Right to Conscience.
He stated that –
“Right to conscience is a right pleaded while challenging the constitutional validity of these provisions(10th schedule). If your lordships were to leave power to the speaker to disqualify even in case of a legitimate dissent exercising the right to conscience, possibly your lordships may have to revisit such challenges.“
At this juncture, Senior Advocate Kapil Sibal, appearing for the Uddhav Thackeray faction, interjected–
“How is the governor saying all this? Either his statement should be recorded as the submissions of the governor. We will accept that.“
To this, SG Mehta said–
“No, these are my submissions.”
Senior Advocate Kapil Sibal was not satisfied and said–
“He cannot have an independent status, independent of Governor. He is not arguing for the governor and is saying that I am arguing in my individual capacity. What capacity? It is not fair. Because if I start talking on “conscience” then I can say that the party in power has a fundamental right to buy off people. Does that party in power have that right?“
The bench intervened and asked SG Mehta to confine his submissions and formulate his submissions.
SG Mehta concluded his arguments by stating–
“Out of 55 elected persons of the party, 40 people want speaker to go. But the speaker says, and CM says that there was no disqualification…Tenth schedule is not a weapon to stifle bonafide dissent but a weapon to control unprincipled defection. This unbridled power takes away the accountability of the leader of the house, accountability to MLAs. They cannot exercise their freedom of expression and conscience.”
