The Supreme Court on Thursday queried the Uddhav Thackeray faction that there is a constitutional principle that whoever is sworn in as a Chief Minister must have accountability to Parliament and to the people, and defection affects the stability of the government itself, how does the Governor as a head of the state ignore the consequence.
Senior advocate Kapil Sibal, representing the Uddhav Thackeray faction, submitted before a five-judge constitution bench, headed by Chief Justice of India D.Y. Chandrachud that the Governor was not empowered in law to recognise rebel MLAs of a political party and legitimise their action, as the Election Commission has power to recognise a political party.
He said Thackeray was the President of Shiv Sena and questioned, in what capacity did the Governor give an audience to Eknath Shinde? He pressed that the governor recognised a split, which is not a valid ground under the Tenth Schedule and this is not a stage when a government is being elected, rather an elected government (with Thackeray as CM) was running then.
Sibal contended that a Governor, by his acts, cannot topple the government and further questioned, when Eknath Shinde and the BJP approached the Governor, and he asked to have a trust vote, on what basis did he ask this?
The Chief Justice observed that both the opposition and the defecting MLAs, could approach the Governor, but Sibal replied that he did not agree with this.
The Chief Justice said, what is of concern is that there is a constitutional principle which is that whoever is sworn in as a Chief Minister must have accountability to the Legislature, and therefore to the people. "Defection affects the stability of the government itself. How does the Governor, as a head of the state, ignore the consequence?"
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Concluding his arguments, Sibal contended before the bench -- also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha - that: "I stand here for the protection of what is so close to our heart - institutional integrity and to ensure that constitutional processes survivea..".
Senior advocate A.M. Singhvi, also representing the Thackeray faction, submitted that the orders passed on June 27, 2022 and June 29, 2022, by the apex court, "cumulatively and conjointly", were not orders that merely protected the status quo but created a new status quo.
"The formation of a new government on June 30, 2022 was the direct and inevitable result of two orders by the Supreme Court...".
He added that the consequence of change of government happened fundamentally because the Deputy Speaker was disabled/fettered in the interim from discharging his constitutional duties under the Tenth Schedule (disqualification law).
The top court is dealing with Maharashtra political crisis triggered due to rebellion in Shiv Sena. It will continue to hear the matter on February 28.
On February 17, the apex court had declined to make immediate reference to a seven-judge bench the reconsideration of its 2016 Nabam Rebia judgment, which restricted the power of the Speaker to examine disqualification petitions against MLAs if a resolution for his removal is pending.
A five-judge bench headed by Chief Justice of India said the issue of reference will be decided only with the merits of the case and had fixed the matter for hearing on merits on February 21.
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