Disqualification of Maharashtra MLAs Day #1: Thackeray Faction Argues SC Cannot Interfere

On June 27th, 2022, a Bench comprising Justices Surya Kant and J.B. Pardiwala heard the challenge to the disqualification proceedings initiated against 13 Shiv Sena MLAs including and led by Mr. Eknath Shinde. 

On June 21st, 2022 Mr Eknath Shinde and a number of Shiv Sena MLAs went missing. Maharashtra Chief Minister Uddhav Thackeray called an emergency party meeting on June 21st but the ‘rebel’ MLAs refused to attend. The Shiv Sena removed Mr. Shinde as Legislature-Party leader, which was later approved by the Deputy Speaker. Mr. Shinde responded on June 23rd stating that he had the support of over 40 Shiv Sena MLAs and Mr. Thackeray was no longer the chosen representative of the party. 

On June 24th, Chief Minister Uddhav Thackeray petitioned Deputy Speaker Narhari Zirwal to initiate disqualification proceedings against the MLAs. He claimed that the MLAs from the ‘Shinde faction defected from the party after they went missing and refused to attend the party meeting. On the same day, two independent MLAs moved a no-confidence motion against the Deputy Speaker through an anonymous email and sought his removal. On June 25th the Deputy Speaker rejected the no-confidence motion and initiated the disqualification proceedings.

The Shinde faction challenged the decision to start disqualification proceedings before the Supreme Court on the same day. They argued that the resolution for the removal of the Deputy Speaker was moved before the proceedings were initiated, so the motion for disqualification had no bearing. Further, they argued that they should have been given at least seven days to respond to the notice for disqualification but were only granted two. 

Today, Senior Advocate Neeraj Kishan Kaul appeared for the ‘rebel’ MLAs from the Shinde faction and Senior Advocate A.M. Singhvi appeared for the Shiv Sena party leader Ajay Choudhary, and the chief whip Sunil Prabhu. Senior Advocate Rajeev Dhavan appeared as well, on behalf of the Deputy Speaker. 

Bench Asks Why the Shinde Faction Directly Approached the SC

At the beginning of the hearing, the Bench questioned the Shinde faction’s decision to directly approach the SC instead of first approaching the Bombay High Court. Mr. Kaul referred to the case of Ashish Shelar v Maharashtra Legislative Assembly (2022) to argue that, in cases of extreme impropriety, the SC can step in and exercise their powers to hear the case under Article 32 of the Constitution of India, 1950. 

Mr Kaul further suggested they did not approach the Bombay HC because there were parties attempting to subvert the state machinery in Bombay and cause physical harm to the rebel MLAs.

Mr. Kaul: Deputy Speaker Cannot Proceed with Pending Resolution for Removal

Mr. Kaul referred to the case of Nabam Rebia v Deputy Speaker, Arunachal Pradesh Assembly (2016) where the Court held that the Speaker could not initiate disqualification proceedings while there was a pending resolution seeking his removal. 

The disqualification proceedings was initiated by Deputy Speaker Narhari Zirwal after the resolution seeking his removal was passed. Mr. Kaul argued that Mr. Zirwal had no authority to initiate disqualification proceedings against the rebel MLAs. 

A.M. Singhvi: Court Cannot Interfere with Ongoing Proceedings

Dr. Singhvi submitted that the Shinde faction ‘leap-frogged’ past the Bombay HC to approach the SC, without giving any reasons. He added that disqualification proceedings were still before the Deputy Speaker—the Court could not interfere in this instance. 

Dr. Singhvi referred to Kihoto Hollohan v Zachillhu (1992) and Nabam Rebia where the Court held that the Speaker must make a final decision before the SC could intervene. He argued that the Shinde faction wrongly interpreted Nabam Rebia and ignored a crucial part of the Judgment. 

Justice Kant inquired whether any of these cases dealt with instances where the Deputy Speaker’s removal was under consideration. Dr. Singhvi responded that Article 212 of the Constitution barred the Court from scrutinising Assembly proceedings while the Speaker or the Deputy Speaker was still making their decision. 

Justice Pardiwala pointed out that the facts in the present case were very similar to the facts from Nabam Rebia. He asked why they should not apply it to the present case. Dr. Singhvi said such a decision would be ‘disastrous’. 

Notably, in Nabam Rebia the Speaker had disqualified 14 rebel MLAs but the Deputy Speaker quashed this decision on the same day. Further, the Speaker had already been removed from their position when the Gauhati High Court and the Supreme Court intervened. 

Bench Grants Shinde Faction ‘Breathing Time’ to Make Written Submissions

The Deputy Speaker’s deadline for these submissions was today, at 5:30 PM. 

The Bench directed the Deputy Speaker, the chief whip and the party leader to file their affidavit within five days. Further, they granted the Shinde faction time till July 12th, 2022, to make written submissions in the disqualification proceedings.