If Speaker wasn't restrained from deciding disqualification, Shinde wouldn't have become CM: Supreme Court

New Delhi: The Supreme Court on Wednesday said if the Speaker of the Maharashtra Assembly was not restrained from deciding the disqualification petitions against Eknath Shinde-led faction of the Shiv Sena, then Shinde could not have been sworn as the Chief Minister.

A five-judge bench, headed by Chief Justice of India D.Y. Chandrachud told senior advocate Neeraj Kishan Kaul, representing the Shinde faction, that the Tenth Schedule of the Constitution attaches a disqualification, "the moment you have a rival faction and it absolutely makes no difference whether you are saying, we are in the same party and we represent the same party...".

Kaul stressed that the legislative party is an integral part of the original political party and his clients raised their voice in the party, and the filing of disqualification petitions with the Speaker by the Uddhav Thackeray faction was to stifle dissent.

The bench noted that the rival faction in the Shiv Sena was discontented with the party's alliance with the Congress and NCP, but does it obviate the fact that this is a rival faction within the meaning of the Tenth Schedule? It further added that the Tenth Schedule will also operate where a group of persons whether minority or majority say that "we belong to the same party, though you say that this action is of the majority, and Uddhav Thackeray represented the minority. It makes no difference to the application of the Tenth Schedule".

Kaul submitted that even if 39 MLAs would have been disqualified from the Assembly, Maha Vikas Aghadi (MVA) government would have fallen. He argued that the MVA had lost the majority and the then Chief Minister Uddhav Thackeray resigned before the floor test.

The top court told Kaul that the Uddhav Thackeray faction are right to this extent that 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 Thackeray knew that he did not have a majority and his coalition in the floor test would have got only 99 votes as 13 of MVA legislators had abstained from voting.

Citing the 2016 Nabam Rebia verdict of the apex court, Kaul said Shinde and other MLAs could not have been disqualified as Rebia verdict had said that the Speaker could not decide on the disqualification petitions, if a motion for his removal was pending.

The bench, also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha, told Kaul that if it were to be assumed Rebia verdict did not exist, the Speaker would have proceeded to disqualify those MLAs but yes, if they were to be disqualified, then the government would have fallen.

Kaul replied that he agreed with it and added that 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 and "What else could he (Governor) have done."

During the hearing, Kaul emphasised that due to the Shiv Sena alliance with the Congress and the NCP, there was widespread discontent among cadres, which reflected in the last year resolution.

The top court, dealing with Maharashtra political crisis triggered due to rebellion in Shiv Sena, will continue to hear the matter on Thursday.