The Supreme Court on Tuesday told the Shiv Sena’s Uddhav Thackeray faction that the Speaker of the House acts like a tribunal in cases related to defection under the anti-defection law and questioned how many times political parties have discussed it in Parliament. Have done that the system is not working.
The apex court referred to a 1992 constitution bench judgment in Kihoto Holohon v. Zachilhu and others and said that the parliamentarians have decided that he (the Speaker) shall be a tribunal under the Tenth Schedule to the Constitution (anti-defection law) and this court has It has been retained.
The Thackeray faction told the apex court that the 40 MLAs of Shiv Sena led by Maharashtra Chief Minister Eknath Shinde have no protection under the Tenth Schedule and if the court upheld the defection by judicial order, it would have far-reaching consequences for the country. There will be results. ,
A five-judge bench headed by Chief Justice DY Chandrachud told senior advocate Kapil Sibal, representing the Thackeray faction, that the apex court is only interpreting the law and unless there is a constitutional amendment, the Speaker’s The status is directly challenged in the form of a tribunal. cannot be maintained.
“They are legislators and there are MPs who have decided that the Speaker will be the tribunal. This court is only interpreting the law. So long as the decision of the Constitution Bench is valid, we will hold that the Chairperson is a Tribunal under the Tenth Schedule.
“Can you tell how many times the parties have sat down and decided that this system is not working? It will take us nowhere,” said the bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.
Sibal, assisted by advocate Amit Anand Tiwari, told the bench that the Speaker has no authority under the law to decide on the whip and leader of the House unless specifically asked by the party president. He referred to a letter written by Congress interim president Sonia Gandhi to the chairman of the Rajya Sabha, in which it was said that in place of Ghulam Nabi Azad, party leader Mallikarjun Kharge would be the Leader of the Opposition in the House.
“These 40 people have no defense under the Tenth Schedule. It is not his case that his group has merged with any other party. They (Shinde faction) say they are the majority in the legislature party. He claims that he can change the party whip and the leader of the house…
“You cannot destabilize a democratically elected government and if this court upholds these acts by judicial order, it is encouraging defection. “It will have far-reaching consequences for the country,” said Sibal, who argued throughout the day.
He said that majority or minority group does not matter under the Tenth Schedule and the question of two-thirds majority will come up only when one group merges with another political party.
“The question should be asked to them as to how the Tenth Schedule will help them,” he said. The bottom line is that there is no longer any concept of division. The purpose of the Tenth Schedule is that we will not allow you to destabilize the government by large scale defection. But, unfortunately, that is what happened here,” he said.
The bench said that the issue of who represents the political party is still to be considered. Responding to this, Sibal said that this question does not arise in the House but outside the House.
“What they are doing is mass defection and it needs to stop. Any democratically elected government can be brought down if it is allowed by the court. You just kick some people out of the party and become a majority and replace the speaker, whip, get a vote of confidence and bring down the government.
The Bench pointed out from the Tenth Schedule that, interestingly, the quantum of apportionment is not defined under the law.
Sibal said that they (Shinde faction) are not claiming this to be a split in the party, but are insisting that they are the real ‘Shiv Sena’ party and Election commission of India His argument is accepted. “The present case is a classic example of the malaise of ‘political defection’, which has been described by this Court as a ‘social and political evil’, threatening the very existence of our democracy. The group of legislators led by Eknath Shinde has sought to escape the consequences of his illegal acts after having committed the constitutional sin of defection. Sibal said that he has committed an act of disqualification in terms of para 2(1.a) and para 2(1) of the Tenth Schedule (b) and by “misusing” the process of this Court by misusing the law laid down in the case of Nabam Rebia and by abusing the office of the Governor, they have corrupted the Constitution. Procedure for disqualification by appointment.
The hearing remained inconclusive and will continue on Wednesday as well.
On February 17, the apex court had refused to refer to a seven-judge bench the petitions related to the June 2022 Maharashtra political crisis arising out of the Shiv Sena split, 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 Speaker cannot proceed with a petition for disqualification of MLAs, if prior intimation for the Speaker’s removal is pending before the House.
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