New Delhi: The Supreme Court on Wednesday tentatively agreed with the Uddhav Thackeray-faction that legislators must defer to the party’s mandate in a constitutional democracy, but added a caveat that it will have “very serious ramifications” if the court takes over the Speaker’s role in deciding whether or not to disqualify MLAs belonging to the faction led by Maharashtra chief minister Eknath Shinde, for breaching the party line when the rift between the two factions came to the fore last year.
“It’s a very significant point for a constitutional democracy. You are elected as representative of a party and your behaviour must be dictated by the party irrespective of your numerical strength…ultimately the party is supreme and legislators only articulate the views of the party,” remarked a constitution bench, headed by Chief Justice of India Dhananjaya Y Chandrachud.
But the bench, which also included justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, was quick to add a rider to the principle: “So far so good. But the next point — what is the consequence? This is a case where ultimately you will say they have incurred a disqualification. But that’s something for the Speaker to decide.”
It added: “If you say you don’t want to go to the Speaker and that the court should only decide, that’s a matter of disquiet for us. It will have very serious ramifications on the constitutional framework if we start taking over these jurisdictions.”
The constitution bench expressed its reservations as it continued hearing a clutch of petitions arising out of the vertical split in the Shiv Sena last year and the legal issues surrounding the contours of disqualification proceedings and the powers of the governor and the speaker in their respective spheres.
On his part, senior counsel Kapil Sibal, arguing for the Uddhav group, implored the bench to decide the disqualification petitions against the Shinde faction by itself, without referring it to the new Speaker, Rahul Narwekar, who, the lawyer, said could not be expected to render an impartial decision since the BJP leader was elected following an alliance between Shinde and BJP.
The bench, however, replied: “The Speaker has to decide if there was a disqualification or not. That’s an area we are unable to breach. Right or wrong, this is the system we have assumed as we the people. This is the point that’s worrying us. Tomorrow you may have the Speaker in the Parliament and a similar situation. Can the Supreme Court say — Sorry, we are now overriding the mandate of the Speaker?”
To this, Sibal, assisted by advocate Amit Anand Tiwari, pointed out that the top court had assumed the jurisdiction in a previous case, and that the situation today has emerged because of a judicial order passed in June 2022 when the then deputy speaker was restrained from deciding the disqualification petitions against Shinde and other MLAs from his camp.
“Assuming this court would not have passed the order on June 27, what would have been done then. We would have still said let the Speaker decide…Also, the court did what it did because of what your Speaker did at that time. Had your Speaker chosen to follow the law and not given only two days to the other side to respond to disqualification notices, this court would have asked them to respond to the notices,” replied the bench, which will continue hearing the case on Thursday.
The constitution bench is seized of a batch of petitions filed by Shinde and Thackeray factions in relation to disqualification proceedings against the MLAs of both camps, election of Narwekar as new Speaker, recognition of a new party whip for Shiv Sena, and the governor’s directive to Thackeray for proving majority on the floor of the House and subsequently inviting Shinde to form the new government in the state.
Shinde and a bunch of Shiv Sena legislators supporting him broke away from the Uddhav Thackeray faction in June last year. With the future of the Shiv Sena-led MVA government in Maharashtra at stake, the then deputy speaker asked the rebels to respond to a disqualification notice from the party (there was no Speaker of the house at the time). However, ahead of this, a petition has already been filed by some of the rebel MLAs seeking the deputy speaker’s removal. Citing the precedence of a 2016 case, the court, on June 27, asked the deputy speaker to give the legislators time till July 12 to respond to the disqualification notice.
The 2016 judgment relied upon by the court in June last year has been sought to be reviewed by the Uddhav camp. The court has said it can decide whether to ask a seven-judge bench to review that jurisprudence only after hearing arguments in the ongoing case.
This meant they could have voted against the government in a confidence vote called by the governor on June 30. Left with no option, Thackeray resigned as CM ahead of the trust vote and Shinde and his MLAs, supported by the BJP, formed an alliance government.
