A Court conversation between the CJI and Kapil Sibal
On February 24, 2023 by Sahiba ChopraThe Supreme Court is hearing petitions relating to the political crisis marring the state of Maharashtra in the case titled, “Subhash Desai versus Principal Secretary, Governor of Maharashtra and Ors”. A Constitutional bench of the Supreme Court comprising the Chief Justice of India (CJI) D.Y. Chandrachud, Justice P.S. Narsimha, Justice Hima Kohli, Justice Krishna Murari, and Justice M.R. Shah is hearing the pleas. On 23rd February 2023, Senior Advocate Kapil Sibal represented the Udhav Thackeray group and submitted his arguments. This article traces the conversation which took place between the CJI and Kapil Sibal on the above-mentioned date.
Kapil Sibal contended that the actions of Maharashtra’s governor, while the crisis was being unfolded in the state, were unconstitutional. He gave emotional and touching statements that it is of the least concern if he wins or loses and that he stands before the court to protect the constitutional provisions and uphold institutional integrity. Kapil Sibal argued that the Governor had no right to give recognition to the rebelling MLAs. He contended that giving recognition to such MLAs falls within the ambit of the Election Commission. He raised questions on the act of the governor giving an audience to Eknath Shinde and making him take the oath for the post of Chief Minister. He termed such an act of the Governor as recognizing a split in the political party which is invalid as per the tenth schedule of the Indian Constitution. Reference was given to the case of Nabam Rebia wherein judgment reflects that the Governor is bestowed with only discretionary powers in situations under Articles 371, 200, and 356 and once the elected government is formed, there lies no such discretion on the part of the Governor. He vehemently opposed the grounds on which the Governor asked the Udhav Thackeray group to showcase a trust vote when Eknath Shinde and BJP approached him.
Once Kapil Sibal submitted these arguments, the CJI explained his query to Kapil Sibal. The CJI asked if a group of MLAs is disqualified resulting in a fall of strength in the house, then would the governor be correct to ask for a confidence vote in such a scenario? To this, Kapil
Sibal submitted that in such a scenario, it is not the power of the Governor to call for a confidence vote rather the members of the house should approach the Governor. The CJI suggested that both the defecting MLAs and the opposition could approach the Governor to which Kapil Sibal disagreed. The CJI emphasized that a Chief Minister has to be answerable to the parliament and the people. When defection occurs, the stability of the government is adversely affected and so it is inevitable for the Governor to ignore such instability. Kapil Sibal here refuses to go into the depth of the concern posed by the CJI by stating that such areas are not to be trodden upon. Advocate Sibal reiterated how the MLAs got recognition from the Governor while they were still in Shivsena. He explained the meaning of a trust vote is to have prima facie lost confidence. But in the Maharashtra crisis, he argues that the Governor had information that the government had not lost the majority.
Kapil Sibal also questioned the role of the Election Commission. He submitted that the jurisdiction of the commission commences when there are claims of rival groups forming in a political party. But the formation of any rival grouping in the party was not heard of. Election
Commission giving the party symbol to 39 ex-members whose disqualifications are pending before the Supreme Court, was termed as disregarding of basic principle, by Kapil Sabil.
On 15th February 2023, Advocate NK Kaul submitted his arguments for the Eknath Shinde group and contended that Eknath Shinde group represents the overwhelming majority and argued that efforts are being made to showcase Maharashtra’s crisis as an event of horse-trading but it is an event of dissent in a political party, which is an essence of democracy.
Advocate Kaul submitted that if a leader lost his confidence, he cannot continue to be a Chief Minister. It is important to mention here that on 22nd February 2023, the apex court refused to stay an order of the Election Commission granting party symbol to the Eknath Shinde group.
It would be pertinent to see how the Supreme Court resolves this issue between two factions of power in upcoming hearings.
