The Shiv Sena leader Eknath Shinde's faction on Thursday told the Supreme Court that constitutional issues arising out of the rift with the Sena's Uddhav Thackeray group fell within the realm of politics and judiciary cannot be asked to adjudicate the crisis. Political waters take different turns at different points, senior advocate Harish Salve, appearing for Maharashtra Chief Minister Shinde and MLAs of his faction, said, adding that the court should not embark on "assumptions". A five-judge Constitution bench headed by Chief Justice DY Chandrachud was hearing pleas relating to the Maharashtra political crisis in June 2022.
"It would be extremely perilous for this court to embark on this journey. Mr. Thackeray (Uddhav) resigns. Governor calls for a floor test for a sitting CM. The floor test doesn't happen. How do you know who would have supported whom? What if one of his coalition partners said sorry we don't want to support you? We don't know. "And it's not for us to decide as lawyers. This is in the realm of politics. How can your lordships be invited to hazard that guess," Salve told the bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha Contending that everything in the petitions before the top court was "academic", Salve submitted that Thackeray never faced the floor test.
"Look at what happened when Shinde came for the floor test in the Assembly. Thirteen of Thackeray's hardcore supporters abstained from voting. These things happen in politics. These fast-moving political waters take different turns at different points. We're not to speculate," Salve said. Admitting that the 10th schedule is not foolproof and there are many "leaks" which need to be fixed, Salve said in the present case, everything is academic and the courts cannot go beyond a point. "There is the problem of criminalization of politics, election funding, spending in elections, etc. There are problems but we cannot cross beyond a point."
Senior advocate Neeraj Kishan Kaul, also appearing for the Shinde faction, argued that there is an artificial distinction sought to be created between the legislative party and the original political party."If the government has lost majority and one faction comes and says that we have a majority then what error has the Governor committed by calling the Shinde faction to be sworn in as the CM?" he said. The hearing remained inconclusive and will resume on March 14 after the Holi vacation. The top court on Wednesday had said Shinde could not have been sworn in as the chief minister of Maharashtra if the assembly speaker was not restrained from deciding the disqualification petitions pending against 39 MLAs.
The Shinde faction had told the top court that even if the 39 MLAs would have been disqualified from the Assembly, the Maha Vikas Aghadi (MVA) government would have fallen because it had lost the majority and the then chief minister Uddhav Thackeray had resigned before the floor test. Kaul had earlier submitted that the Uddhav Thackeray-led faction tried to confuse the powers of three constitutional authorities - Governor, Speaker, and the Election Commission - and now wants that everything should be set aside, including the floor test on July 4, 2022. On Tuesday, the top court had asked the Shinde-led faction if its move to go against the Shiv Sena party's wish to continue with the coalition in the MVA amounted to indiscipline leading to disqualification.
Defending its stand, the Shinde faction said the legislative party is an integral part of the original political party and informed that there were two whips appointed by the party in June last year and it went with the one that said it did not want to continue in the coalition. On February 23, the Uddhav Thackeray faction told the top court that the formation of a new government in Maharashtra under Shinde was the "direct and inevitable result" of two orders of the apex court that "disturbed the co-equal and mutual balance" between judicial and legislative organs of the State.
A political crisis had erupted in Maharashtra after an open revolt in the Shiv Sena and on June 29, 2022, the apex court refused to stay the Maharashtra Governor's direction to the 31-month-old MVA government to take a floor test in the Assembly to prove its majority. On August 23, 2022, a three-judge bench of the top court headed by then Chief Justice N V Ramana had formulated several questions of law and referred to the five-judge bench petitions filed by the two Sena factions which raised several constitutional questions related to defection, merger, and disqualification.
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