Shinde govt formed in Maha due to SC orders: Uddhav faction tells apex court

The Uddhav Thackeray faction of the Shiv Sena told the Supreme Court on Thursday the formation of a new government in Maharashtra under Eknath Shinde was the direct and inevitable result of two orders of the apex court that disturbed the coequal and mutual balance between judicial and legislative organs of the StateSenior advocate A M Singhvi representing the Thackeray camp told a fivejudge constitution bench headed by Chief Justice DY Chandrachud that the orders of the top court dated June 27 2022 and June 29 2022 cumulatively and conjointly were not orders that merely protected the status quo but created a new status quoThe formation of a new government on June 30 2022 was the direct and inevitable result of two orders by the Supreme Court By June 27 2022 order this court gave a negative injunction by not allowing the deputy speaker to decide the pending disqualification petitions and by order dated June 29 2022 a positive order was passed allowing the trust vote to be held on June 30 2022 he saidAlso readMaha Two dead one injured after soil caves in at construction site in ThaneSinghvi told the bench also comprising Justices MR Shah Krishna Murari Hima Kohli and PS Narasimha that by the order dated June 29 2022 the court clearly made all acts and omissions which were to follow subject to the final outcome of the pending petitions in the matterHe said subject to necessarily and only means that the court is issuing an in rem directed against a thing rather than an individual warning that all those who act after the subject to order do so at their own risk and any consequences equities rights or new status quo created after the order will be liable to be reversed and status quo ante restoredThe 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 he submitted adding the June 27 2022 decision was contrary to the 1992 fivejudge verdict in Kihoto Hollohan caseThe SC judgement in the Kihoto Hollohan case upheld the sweeping powers of the Speaker in deciding the disqualification of MLAsIt disturbed the coequal and mutual balance between judicial and legislative organs the latter represented by the Deputy Speaker contrary to detailed Supreme Court judgments he said adding the orders dated June 27 2022 and June 29 2022 cumulatively and conjointly were not orders merely protecting the status quo but created a new status quoSinghvi referring to the 2016 Nabam Rebia case said the top court has sufficient judicial precedents where a complex and intertwined set of acts and omissions have been reversed with restoration of status quo ante based upon purposive interpretation and the intent to do complete justice while judicial adjudication is ongoingCJI Chandrachud told Singhvi that by applying Nabam Rebia case here the Speaker could not have decided the disqualification petitions against the MLAs as the 2016 verdict says where a motion for removal of Speaker is pending he cannot decide on disqualificationSinghvi said the facts and sequence make it indubitably and unambiguously clear that a reference back to the Speaker for a decision on the disqualification petitions filed by the petitioner Uddhav faction would be a futile exercise involving a foregone conclusionIt is respectfully submitted that if this court does not itself decide the question of disqualification the result will be that the Respondents Eknath Shinde faction who have now got an order from the Election Commission that they are entitled to the symbol of the Shiv Sena would be able to issue whips to the petitioners defiance of which will result in disqualification of the petitioners he saidSinghvi submitted that allowing the disqualification petitions to be decided by a person who has been appointed as Speaker with the active support of the Eknath Shinde group and who has conducted himself in a biased and mala fide manner will result in incentivising the constitutional sin of defection and would be against the spirit and intent behind the Tenth ScheduleThe same would be in the teeth of constitutional morality Thus the principle of purposive interpretation demands that the present Speaker not be entrusted with the task of deciding the disqualification petitions he saidSenior advocate Kapil Sibal also appearing for the Uddhav faction had in an unusual move on Tuesday urged the top court to decide the disqualification proceedings pending against Shinde and Shiv Sena MLAs belonging to his camp saying that would be the only way to uphold the democratic spirit of the ConstitutionThe hearing remained inconclusive and will continue on February 28A political crisis had erupted in Maharashtra after an open revolt in the Sena and on June 29 2022 the apex court refused to stay the Maharashtra governors direction to the 31monthold MVA government to take a floor test in the assembly to prove its majority Thackeray resigned as the chief minister before the floor test to avoid an impending defeatOn August 23 2022 a threejudge bench of the top court headed by then chief justice N V Ramana had formulated several questions of law and referred to the fivejudge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection merger and disqualificationThe Tenth Schedule of the Constitution provides for prevention of defection of the elected and nominated members from a political party and contains stringent provisions against itThis story has been sourced from a third party syndicated feed agencies Midday accepts no responsibility or liability for its dependability trustworthiness reliability and data of the text Midday managementmiddaycom reserves the sole right to alter delete or remove without notice the content in its absolute discretion for any reason whatsoever