Maharashtra Politics: Can we restore the earlier speaker and invalidate a trust vote which never took place? Supreme Court asks

The Supreme Court on Wednesday expressed reservations about the extent to which it can turn back the clock in the case concerning Maharashtra politics, opining that it might not be possible to restore the earlier speaker to decide on decide on disqualification petitions of MLAs of Eknath Shinde camp or invalidate the trust vote which never took place (since Uddhav Thackeray resigned before the trust vote was held) [Subhash Desai vs Principal Secretary, Governor of Maharashtra and ors].A Constitution bench of Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha said that while only the speaker can decide on disqualification, it might not be practical for the Court to restore the situation that prevailed 8 months ago."Speaker has to decide if there was a disqualification or not and this is an area we are at an disquiet to breach. If there was no judicial order, then we would have sent the matter to the speaker. Can we retrace the steps back to 8 months ago and restore the speaker who is no longer the speaker and ask him to take a consequential action. You have to understand what is worrying us," the Court said.Senior Advocate Kapil Sibal alongwith Advocate Amit Anand Tiwari, appearing for the Uddhav Thackeray faction, then pointed out that the change in government happened because of interim orders passed by the Supreme Court last year and the Court had said that all changes will be subject to the outcome of the case.The Supreme Court on June 27, 2022 granted interim relief to Shinde and his rebel group of MLAs by extending the time to file responses to the disqualification notices sent by the Deputy Speaker, till July 12.Subsequently, the Court on June 29 also gave the go-ahead to a floor test called for by Governor Bhagat Singh Koshyari.Thackeray had then resigned as Chief Minister (CM) after which Shinde assumed office as the CM of the State. "Why allow the status quo to be changed and that too because of a judicial order. It was said (by the Supreme Court when passing interim orders) that all changes will be subject to future proceedings," Sibal said on Wednesday."This means we have to also invalidate the trust vote which never took place," CJI Chandrachud replied..The case has its genesis in the split of the Shiv Sena political party into two factions, one led by Thackeray and the other by Shinde, who went on to replace Thackeray as Maharashtra's Chief Minister after the split in June 2022.The Constitution bench is hearing a batch of petitions in relation to the political crisis of 2022, which led to a change in power in the Western State.On February 17, the Election Commission (EC) had recognised the Shinde faction as the real Shiv Sena based on the majority in the Maharashtra assembly. The Shinde faction has 40 MLAs as against the Thackeray faction's 15 MLAs in the assembly.The Supreme Court is considering a slew of legal issues including powers of speaker to decide on disqualification of MLAs, powers of Governor and which faction of a political party can claim to be the real political party in case of a split within the MLAs (legislative wing) of the political party..Sibal argued on Wednesday that MLAs in the assembly, even if they are in majority in the house, cannot defy the party whip. "Thirty-nine members cannot defy the party. That is the issue. Thirty-nine members were incomplete and it was not the shiv sena. In this regard, he also highlighted the role of the Govenor."How did governor administer the oath considering there was no party before him. This is an issue to decide," he said.He underlined that the MLAs do not decide how MLAs should vote in the house but the business advisory committee does and then party whip then informs the MLAs of the same. "What happens traditionally is members do not what the business of the house is, because only the business advisory committee does in which only few are members. It is announced after being decided, which whip then informs and says which way to vote and which position to take and so you prepare your speeches accordingly," he said."Their argument is we are 38 therefore we are the political party. They cannot be, they are members of the legislative party," Sibal stressed.Pertinently, Sibal also said that the role of courts in such matters is extremely significant."I always say there is not much point in arguing without the court on your side. Art of politics is to make unreasonable look reasonable," he said.CJI Chandrachud then encapsulated Sibal's contentions."All this boils down to the fact that [Shinde faction] members were disqualified. You have made significant point for constitutional democracy that party is supreme, and members are only elected as part of the party. You are only a group of legislators and you cannot determine the wishes of the party. It is a significant point which you make. Speaking for myself; there is a system, 'we the people', and can the Court breach this system?" the CJI remarked..Regarding the events that transpired before the fall of Thackeray government, Sibal said that prior to the party meeting in June 2022, there was no statement that party voices were not being heard."Then you (Shinde camp) go to Assam and ... That is because he [Shinde] was lured into it, to become Chief Minister. He has to first ventilate it within party, call meeting. I am sure he was not in Assam to cleanse his conscience ... It is simply unthinkable, apart from being immoral and unforgivable. To say that I am 40 members and can do what I like and remove you is unthinkable in parliamentary life. Unthinkable. He has per se voluntarily given up membership of the House," Sibal contended.The Governor should have only sworn in the defecting MLAs only after knowing there was no taint to their party membership, he said."That is the constitutional path that he should have adopted. Institutional morality demands that. Why would the Governor administer oath except for knowing that the government will be toppled? Ultimately democracy only thrives when institutions uphold the sanctity of the Constitution. No courts should baulk at or withhold its authority from that. These are some of the vicissitudes that are part of politics, here there is a very big conundrum."Pertinently, Sibal said that if Nabam Rebia is not overruled by the bench, then such instances of elected governments being toppled would repeat at the behest of Governors."I mean no disrespect to the institution of the Governor, but they have been playing a more active role in disturbances of our polity. Lordships have to uphold constitutional morality. Shinde should not have been sworn in. He was not the leader, he had no locus. Leader of the Shiv Sena had to go to the Governor. Uddhav Thackeray; it is he who has to go to Governor and say we are joining the BJP. In which capacity did Shinde go, with what authority did the Governor administer the oath of office?"The Governor had revived and given legitimacy to the concept of a split in the Shiv Sena, Sibal argued. To a question by Justice Narasimha on instances of there being an overlap of legislative party and organisational party, Sibal explained that if there is a split, there has to be a party meeting and the decision on who is the majority has to be decided at such meeting. "Here there was no political party since the legislators were in Assam. So no party meeting took place or before June 21. There is nothing prior to that, no split.".Senior Advocates Mahesh Jethmalani, Maninder Singh, Sidharth Bhatnagar and Malvika Trivedi, assisted by advocates Chirag Shah, Utsav Trivedi, Himanshu Sachdeva, Manini Roy, Piyush Tiwari and Chaitali Jugran also appeared for the Shinde-led faction.Advocates Tanvi Anand, Devyani Gupta and Saushriya Havelia appeared along with Advocate Tiwari for the Thackeray led faction..[Follow our live-coverage of hearing]