Referring to Shivraj Singh Chouhan’s case, the Shinde-led Shiv Sena faction argued that the outcome of the trust vote remains the ultimate litmus test for the legitimacy to govern. It is also the case of the respondents that the petitioners have unnecessarily created an artificial distinction between the legislature and the political party.
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TODAY, the Supreme Court Constitution bench comprising Chief Justice of India Dr. D.Y. Chandrachud, and Justices Hima Kohli, M.R. Shah, Krishna Murari and P.S. Narasimha, continued hearing a batch of petitions concerning the interpretation of the Tenth Schedule of the Constitution as the Maharashtra political crisis continues, with the state Chief Minister Eknath S. Shinde seeking to appoint Viplove Bajoria as Shiv Sena’s chief whip in the Maharashtra Vidhan Parishad. Currently, Anil Parab from the Shiv Sena (Uddhav Balasaheb Thackeray faction), led by former chief minister and former Shiv Sena president Uddhav B. Thackeray, is the party’s chief whip in the house.
In yesterday’s proceedings, senior advocate Neeraj Kishan Kaul referred to the Supreme Court’s judgment in Shivraj Singh Chouhan & Ors. versus Speaker Madhya Pradesh Legislative Assembly (2020) in which a division bench had observed that the idea underlying a trust vote is to ensure political accountability of the elected government to the state legislature. The bench, comprising the current Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justice Hemant Gupta, had held: “Assertion of accountability is a mirror image of the collective responsibility of the government to the legislature.”
Today, Kaul referred to the Shivraj Singh Chouhan case and specifically pointed out that the division bench had noted that in directing a trust vote, the governor does not favour a particular political party. The division bench’s judgment clearly stated that the specific timing of a trust vote may tilt the balance towards the party possessing a majority at the time the trust vote is directed. However, all political parties are equally at risk of losing the support of their elected legislators, just as legislators are at risk of losing the vote of the electorate, the judgment had noted.
Interestingly, senior advocate Dr. Abhishek Manu Singhvi, who is arguing for the Thackeray-led faction in the instant case, had opposed the convening of the trust vote by the governor when the speaker is yet to decide on the resignations of the legislators and its consequence under the Tenth Schedule in the Shivraj Singh Chouhan case.
In that case, Dr. Singhvi’s had argued that holding a trust vote impinges upon the discretion of the speaker on whether to accept the resignations and to decide whether the concerned legislators have incurred disqualification. However, the bench had observed that “[t]he holding of a trust vote operates in a distinct field from the issue as to whether one or more individual members of the legislative assembly have embarked upon a voluntary act of resignation or have incurred the wrath of the Tenth Schedule.”
As per the Shivraj Singh Chouhan case, holding a trust vote is necessary as the continued existence of confidence in the council of ministers headed by the chief minister is crucial to the legitimacy and survival of the government.
The division bench had also observed: “Whether in a situation such as the present one an election government is entitled to continue despite the resignations of twenty-two of its members has a significant bearing on the issue of confidence. Neither the governor nor for that matter the court can entrench upon the power of the speaker, but the pendency of the proceedings before the speaker cannot be a valid basis to not have the confidence of the house in the government determined by the convening of a floor test. … We are therefore unable to accept the submission of Dr Singhvi that the holding of a trust vote would short-circuit the jurisdiction of the speaker on a matter of resignation and disqualification.”
Thus, Kaul reiterated that the court has categorically rejected the argument that a trust vote cannot take place when the speaker has not decided upon the disqualification petitions.
Internal dissent not synonymous with voluntarily giving up membership of a political party
Further, Kaul told the bench, “We are dealing with three distinct constitutional authorities. We are dealing with the speaker, who exercises and is the sole authority to exercise jurisdiction under the Tenth Schedule. We are dealing with the governor, who is the sole authority to decide whether there should be a floor test or not, and we are dealing with the Election Commission, which under the Symbol Orders read with Article 324 [of the Constitution] is the sole authority to decide whether within a political party, a rival faction or a splinter, as they say, has emerged or not.
Kaul further sought to clarify, “We have never argued that we split from the political party. We have never argued that we need to merge with another party. So these questions, which were defences under the Tenth Schedule, do not apply in the present case. Our consistent and continuous argument has been that we represent a rival faction within the Shiv Sena, which ought to be recognised as a political party.”
The Election Commission of India (ECI) has already recognised the Shinde-led faction as the real Shiv Sena by allowing it to retain the bow-and-arrow symbol of the party via an order on February 17.
Kaul also submitted that internal dissent in a political party does not mean that the legislator will incur disqualification ex-facie. On this point, he made a reference to the Supreme Court’s judgment in Balchandra L. Jarkiholi & Ors versus B.S. Yeddyurappa & Ors. (2011), wherein it was observed that merely showing discontent within a political party does not mean that a legislator is acting against the mandate of the party.
According to Kaul, the discontent within the party was because of the post-election alliance with the Nationalist Congress Party and the Indian National Congress, which, collectively with the Shiv Sena, had formed the Maha Vikas Aghadi government. Kaul said that dissatisfaction with the alliance was not unknown.
Moreover, Kaul clarified that disqualification petitions filed till July 2, 2022 were based on Paragraph 2(1)(a) of the Tenth Schedule. Kaul averred that this provision did not apply as this court has interpreted voluntarily giving up of membership should be determined on the basis of committing ‘overt specific acts’.
Kaul then argued that the issue only concerned paragraph 2(1)(b) of the Schedule, and pertained to when a whip of the Shinde faction was appointed on July 21.
One of the petitions in the instant matter has been filed by Thackeray’s whip Sunil Prabhu, whose recognition as the Shiv Sena whip was cancelled with immediate effect and instead, Shinde’s nominee Bharatshet Gogawale was appointed as the chief whip in the Vidhan Sabha.
However, the bench intervened and asked Kaul to address whether the whip was selected from the legislature party or the political party. To this, Kaul said that an artificial distinction has been made between the legislature and the political party.
Kaul referred to the ECI’s Symbols (Reservation and Allotment) Order, 1968 (Symbols Order), paragraphs 6 and 6A of which state that vote percentage, elected representatives, and elected members of a legislature body are all important elements to determine the existence and continuance of a political party.
According to Kaul, a legislature party has the authority of a political party and both are organically connected with each other.
Kaul further pointed out a notice was subsequently issued by Prabhu to all the then Shiv Sena legislators to attend an emergency party meeting, failing which it would be considered that absentee legislators had voluntarily given up their membership of the party.
According to Kaul, Prabhu could not have issued the whip because the Thackeray faction was in a minority by then.
Disqualification petitions filed to stifle dissent in the party
Kaul alleged that the filing of disqualification petitions against the legislators was an attempt to stifle discontent within the party. The notices were served after the Shinde faction moved a no-confidence motion against the deputy speaker, which the latter rejected, citing that the same was received from an unverified source.
Shinde faction represents a recognised political party, paragraph 3 of Tenth Schedule has no role to play
Further, Kaul compared paragraph 3 of the Tenth Schedule, now deleted by the Constitution (Ninety First Amendment) Act, 2003, with paragraph 15 of the Symbols Order to assert that in the latter, a rival faction emerges. The rival faction then requests the ECI to allow it to be named as a recognised political party, as happened in the instant case.
As there cannot be two recognised political parties with the same symbols and name as per the Symbol Order, the ECI has to either recognise one of them, or not recognise them at all, Kaul stated.
According to Kaul, there is no application of paragraph 3 of the Tenth Schedule in the instant case because at least one-third of the original political party must break away and then claim itself to be the original political party. The Shinde faction did not claim itself to be a new political party, he submitted.
Kaul said that they would not have relied on paragraph 3 even if it existed under the Tenth Schedule. At this stage, the bench interjected and asked Kaul what the speaker is supposed to do when a certain faction claims itself to be the political party. Kaul answered that the role of the speaker would then be to say that their link is with the whip of the legislature party.
Justice Kohli asked Kaul to clarify the meaning of ‘splinter’ used under paragraph 15 of the Symbols Order. However, Chief Justice Dr. Chandrachud clarified that for the recognition of a political party under paragraph 15, the rival factions do not have to leave the folds of the political party. They only claim to be representing the original political party. On the other hand, under paragraph 3 of the Tenth Schedule, one-third of legislators leave the political party and are deemed to be the original political party.
The court will continue hearing the matter tomorrow.
