In an unusual move, the Uddhav Thackeray bloc of the Shiv Sena on Tuesday urged the Supreme Court to decide the disqualification proceedings pending against Maharashtra Chief Minister Eknath Shinde and Shiv Sena MLAs belonging to his camp, saying that would be the only way to "uphold the democratic spirit of the Constitution”.

It questioned the then Maharashtra Governor B S Koshyari's decision to swear-in Shinde as the chief minister in 2022 when disqualification proceedings against him and other MLAs were pending before the deputy speaker.

The party also deprecated constitutional functionaries like the governor of states taking an active part in the country's politics.

A five-judge bench headed by Chief Justice DY Chandrachud was told by senior advocate Kapil Sibal, appearing for the Thackeray faction, that governors have of late acted far beyond their constitutional responsibility.

"This Court has repeatedly taken the view that advances the object behind the Tenth Schedule, namely, preventing and punishing the menace of political defections. The Petitioners respectfully submit that in the present case, well settled principles of Constitutional adjudication require this court to itself decide the question of disqualification. The outcome would determine the legal validity of subsequent developments," Sibal said.

“That would be the only way to uphold the democratic spirit of the Constitution,” he said.

Sibal said everyone knows what happened when the governor had sworn in a person as the chief minister early morning and "by the light of the day, he had to resign", apparently hinting at BJP leader Devendra Fadnavis' resignation within 80 hours of taking oath in in 2019.

"How can the governor swear in a person as chief minister without knowing whether he can muster majority in the House or not. Can a governor swear in a person against whom disqualification proceedings are pending. Governors have of late acted for beyond their constitutional responsibility. Unfortunately, governors have actively taken part in the politics of the country," he said.

On June 30, 2022, the governor had invited Eknath Shinde to be sworn in as the chief minister with the support of rebel Shiv Sena MLAs and those of the BJP.

Sibal, at one point, requested the court to direct the Speaker of the Maharashtra assembly to first decide the disqualification proceedings pending before him against the rebel MLAs within seven days.

The bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, said if it assumes Sibal's argument to be correct, then what will be its impact.

"If the Speaker decides in our favour, then the Chief Minister and other members of the party will go. If you are disqualified you cannot be a minister. Now, please see the present scenario. Your disqualification proceedings are pending before the court and the Speaker but yet you are appointed as a minister. You have changed the Speaker, leader of the House and the Whip,” he said.

Sibal, who argued the whole day, submitted the apex court has consistently applied the principle of purposive interpretation and the requirement to uphold constitutional values while deciding violations of the Tenth Schedule.

Sibal submitted the governor convened a special session of the assembly on July 3, 2022 for considering a resolution for appointment of the Speaker, a post that had been vacant since February, 2021.

"This was clear vitiation of process of the disqualification proceedings as Eknath Shinde, who is himself facing disqualification proceedings, advised the governor to convene an Assembly Session for appointment of a Speaker, thereby appointing a person of their own to decide the question of their disqualification," he said.

On February 17, a five-judge constitution bench headed by Chief Justice D Y Chandrachud had said whether the 2016 Nabam Rebia judgement requires reference or not will be considered with the merits of the case on February 21.

The political crisis in Maharashtra had erupted after an open revolt in the 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. Thackeray resigned as the chief minister before the floor test.

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.

It had said the batch of petitions raised important constitutional issues related to the Tenth Schedule of the Constitution pertaining to disqualification, powers of the speaker and governor, and judicial review.

The Tenth Schedule of the Constitution provides for the prevention of defection of the elected and nominated members from a political party and contains stringent provisions against it.

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