The Supreme Court on Tuesday told the Uddhav Thackeray faction of the Shiv Sena the Speaker of a House functions like a tribunal in matters related to defection under the anti-defection law, and questioned as to how many times political parties have deliberated upon it in Parliament that this system is not working.
The top court referred to the 1992 constitution bench verdict in Kihoto Hollohon versus Zachilhu and others and said parliamentarians have decided that he (speaker) will be tribunal under the Tenth Schedule (anti-defection law) of the Constitution and this court has upheld it.
The Thackeray bloc told the apex court the Sena’s 40 MLAs led by Maharashtra Chief Minister Eknath Shinde do not have any defence under the Tenth Schedule and, if the court upholds the defection by a judicial order, then it will have far reaching consequences for the country.
A five-judge bench headed by Chief Justice DY Chandrachud told senior advocate Kapil Sibal, representing the Thackeray faction, the apex court is only interpreting the law and, unless there is a Constitution amendment, a direct challenge to the position of the Speaker as tribunal cannot be sustained.
“They are the legislators and there are parliamentarians who have decided that the Speaker will be the tribunal. This court is only interpreting the law. As long as the constitution bench judgement holds ground, we will go by that the Speaker is the tribunal under the Tenth Schedule.
“Can you tell how many times have the parties sat down and decided that this system is not working? This will take us nowhere,” the bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha said.
Sibal, assisted by advocate Amit Anand Tiwari, told the bench the Speaker has no authority under the law to decide on the whip and the leader of the house unless specifically told by the party president. He referred to a letter written by Congress’s interim president Sonia Gandhi to the Rajya Sabha chairman that instead of Ghulam Nabi Azad, party leader Mallikarjun Kharge will be the leader of the opposition in the House.
“These 40 people have no defence under the Tenth Schedule. It is not their case that there was a merger of their faction with another party. They (Shinde faction) say they are the majority of the legislative party. They claim that they can change the whip of the party and the leader of the House….
“You cannot destabilize a democratically elected government and if this court upholds these acts by a judicial order, then it is encouraging defection. This will have far reaching consequences for the country,” Sibal, who argued for the whole day, said.
He said under the Tenth Schedule the majority or minority group does not matter and the question of two-thirds majority would come up only after a group merges with another political party.
“The question needs to be asked from them is how the Tenth Schedule will come to their aid. The bottom line is there is no concept of split anymore. The purpose of the Tenth Schedule is that we will not allow you to destabilize the government by bulk defection. But, unfortunately, this is what has happened here,” he said.
The bench said the issue as to who represents the political party is still moot. Sibal responded by saying this question does not arise in the House but outside the House.
“What they are doing is bulk defection and that needs to be prevented. If this is allowed by the court, then any democratically elected government can be toppled. You just take out some people from the party and become a majority and change the Speaker, Whip, have a trust vote and topple the government,” he said.
The bench pointed out from the Tenth Schedule that, interestingly, the quantum of split is not defined under the law.
Sibal said they (Shinde faction) are not claiming it to be a split in the party but asserting they are the real ‘Shiv Sena’ party and the Election Commission of India has accepted their argument. “The present case is a classic example of the malaise of ‘political defections’, described by this court as a ‘social and political evil’, which poses a threat to the very existence of our democracy. The group of MLAs led by Eknath Shinde, after committing the constitutional sin of defection, has sought to avoid the consequences of their unlawful acts,” he said. Sibal said they have have committed acts constituting disqualification in terms of Para 2(1)(a) and Para 2(1)(b) of the Tenth Schedule and by misusing the law laid down in the Nabam Rebia’s case by “abusing” the process of this court and, by misusing the office of the Governor, they have vitiated the process of the disqualification proceedings by appointing their own Speaker in the Assembly on July 3, 2022.
The hearing remained inconclusive and will continue on Wednesday.
On February 17, the top court had declined to refer pleas related to the June 2022 Maharashtra political crisis triggered by the Shiv Sena’s division to a seven-judge bench for reconsideration of the 2016 Nabam Rebia judgement.
In 2016, a five-judge constitution bench, while deciding the Nabam Rebia case of Arunachal Pradesh, had held that the assembly Speaker cannot proceed with a plea for disqualification of MLAs if a prior notice seeking the Speaker’s removal is pending before the House.
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