16 Feb 2023 2:48 PM GMT
The issues in the case related to Shiv Sena rift, which led to the fall of the Maha Vikas Aghadi Government in Maharashtra, are not "academic" and have wide ramifications for the future of democracy in India, said Senior Advocate Kapil Sibal in the Supreme Court on Thursday.Appearing for the Uddhav Thackeray camp, the senior lawyer urged the Constitution Bench to not take a narrow view of...
The issues in the case related to Shiv Sena rift, which led to the fall of the Maha Vikas Aghadi Government in Maharashtra, are not "academic" and have wide ramifications for the future of democracy in India, said Senior Advocate Kapil Sibal in the Supreme Court on Thursday.
Appearing for the Uddhav Thackeray camp, the senior lawyer urged the Constitution Bench to not take a narrow view of the matter so that Constitutional provisions are not used as weapons to topple democratically elected governments.
The 5-judge bench led by Chief Justice of India DY Chandrachud was considering the primary question whether the Constitution Bench decision in Nabam Rebia vs Deputy Speaker requires reconsideration. During the hearing, the lawyers of Eknath Shinde group argued that the issue has become "academic" now, especially because Uddhav Thackeray voluntarily resigned as Chief Minister without facing the floor test.
In this backdrop, the bench had asked Sibal if his side has "lost the plot?". Sibal replied : "My lord put to me if we have lost the plot. We have not lost the plot. Because the tenth schedule itself does not allow this. There is no defence available to them".
He highlighted that the only defence available under the tenth schedule is merger with another party, which has not happened in this case. It does not matter whether the dissident group is in the majority or the minority, as the tenth schedule no longer accepts "split" and merger is the one and only defence, he underscored.
"I have been hearing this refrain from them, that we are 40(MLAs). It makes no difference. Because paragraph 3 of tenth schedule (which recognized split) has been removed".
"This is why they don't want this case to go on. Which is why they are saying the issue is academic now", he added.
Persuading the bench to take a wider view, Sibal said, "See the serious consequences of this. These are not conscientious objectors. These are conscientious defectors They have laid their conscience on a platter to give it to the one who bids the highest. So, I beg of you. This is not about today. This is about tomorrow. Don't thwart the issue by saying it does not arise. It will arise time and again. Elected governments will be toppled. And no democracy in the world allows this to happen".
Sibal said that he will put forth a proposition that an elected government must continue till the disqualification petitions are decided by the Speaker. "Do not allow tenth schedule to topple a government. Do not interpret Article 179, 181 to allow this to happen. It is far too serious. It can't be just a narrow interpretation", Sibal urged.
Leeway given to Shinde side by disabling Speaker
In the instant case, Sibal argued the dissident MLAs violated the official whip in the floor test for the Shinde government and also in the election of the new Speaker. On the day of Speaker election, Sunil Prabhu was the official whip of Shiv Sena. However, violating his whip, the rebels voted for the BJP candidate. Although violation of party whip is clearly defined as defection under the tenth schedule, no action could be taken against them, he contended.
Implicitly referring to the June 27, 2022 order of the Supreme Court which extended the time for the rebels to respond to the Speaker's notices, Sibal said :
"Allow the Speaker to decide. If there is whip and somebody violates the whip, what leeway does the Speaker have? You have given the leeway to the other side, by disabling the Speaker, toppling the Government and then not deciding the matter".
“I remember, when the Rajasthan assembly matter came to this Court, Justice Arun Mishra used to monitor the matter the disqualification proceeding on a daily basis. But when it came to Goa matter, for two and a half years, we kept on requesting the CJI to hear the matter hear the matter. Where do we go?".
Nabam Rebia principle is ex-facie wrong
Sibal argued that the Nabam Rebia decision, where a 5-judge bench ruled that a Speaker cannot initiate disqualification proceedings when a resolution seeking his removal is pending, should be reconsidered by a larger bench.
The CJI said that the logic behind Nabam Rebia seems to be that if Speaker is allowed to decide disqualification, he has the power to change the electoral college by expelling members. “When speaker seeks to remove in tenth schedule, he's affecting the pool".
Kapil Sibal stated that the notice against the Speaker was sent pre-empting the disqualification notice. Narrating the chronology of events, he pointed out that the notice for Deputy Speaker's removal was dated June 21 and was received by his office on June 22. Sibal said that the notice asked the Deputy Speaker to refrain from taking action under tenth schedule in view of Nabam Rebia decision. However, on that day, the disqualification notices were yet to be sent to the dissidents. They were sent only on June 23.
Therefore, the removal notice was a "mischief" intended to paralyse the whole process, Sibal contended. He denied that the issue was "academic" by highlighting that the June 27 order was obtained by the other side by referring to Nabam Rebia judgment. The June 27 order catapulted the events leading to the Government's fall, the senior lawyer underscored.
Also read - Shiv Sena Rift : Should "Nabam Rebia" Decision Be Reconsidered By Larger Bench? Supreme Court Constitution Bench Reserves Judgment
Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) No. 493/2022