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 said on Wednesday.
The Shinde faction told the apex court that even if 39 MLAs would have been disqualified from the assembly, the Maha Vikas Aghadi (MVA) government would have fallen because it had lost its majority and the then chief minister Uddhav Thackeray had resigned before the floor test.
The Thackeray faction had earlier told the top court that the formation of a new government in Maharashtra under Shinde was the 'direct and inevitable result' of two orders of the apex 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 Dr D Y Chandrachud told Senior Advocate Neeraj Kishan Kaul, appearing for THE Shinde bloc, "They (the 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."
Kaul said just after June 29, 2022, 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 got only 99 votes as 13 MVA legislators had abstained from voting.
On July 4 last year, Shinde had won the crucial floor test in the state assembly with the support of the Bharatiya Janata Party and Independent MLAs. In the 288-member House, 164 MLAs had voted for the motion of confidence, while 99 voted against it.
"They (the 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 the floor test," Kaul said.
"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," Kaul added.
The bench after perusing a chart of voting in the floor test given by Kaul said that even if the court assumed that the 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.
"Exactly," Kaul said. "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, Kaul submitted that the Shinde faction was never against Thackeray, but was against the party continuing in the MVA and even its resolution dated June 21, 2022, said 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," Kaul said.
"The Shiv Sena had a pre-poll alliance with the BJP and after the election, we formed a government with the help of the Nationalist Congress Party and Congress, against whom we contested the election. We said in our resolution that there was widespread discontent among party workers," Kaul added.
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 the floor test of July 4, 2022.
"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 10th Schedule," Kaul submitted.
The hearing remained inconclusive and will continue on Thursday.
On Tuesday, the top 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 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 Shinde was the 'direct and inevitable result' of two orders of the apex court that 'disturbed the co-equal and mutual balance' between the 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 apex 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.
