The Supreme Court on Tuesday told Maharashtra's ruling Eknath Shinde faction that difference between a split and rival faction is very thin and it is very easy for a Speaker to say prima facie it is a case of split or not, but the question is what should be the contours for the presiding officer to take a prima facie view.
Senior advocate Harish Salve, representing the Shinde group, submitted before a five-judge constitution bench headed by Chief Justice D.Y. Chandrachud that the then Maharashtra Governor Bhagat Singh Koshyari did nothing wrong to call Uddhav Thackeray-led Maha Vikas Aghadi (MVA) government to prove its majority on the floor of the House last year.
He contended that the head counting was not meant for taking place in Raj Bhavan but it was supposed to take place on the floor of the Assembly and stressed that the governor cannot entertain people in Raj Bhawan and engage in head counting.
Senior advocate Neeraj Kishan Kaul, also representing the Shinde group, submitted that in the 1994 verdict, a nine-judge constitution bench of the apex court had said a floor test is the litmus test of democracy and a Chief Minister cannot shy away from it. He emphasised that if the Chief Minister evades the responsibility of facing the floor test, then it means he does not enjoy the majority of the House.
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Kaul contended before the bench - also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha - that it is a settled law that the Speaker of the House has to take a prima facie view of whether a split had occurred in a political party and this has to be decided on the basis of the material placed before him and he cannot get on a roving inquiry.
At this juncture, Justice Narasimha told Kaul that the problem which arises is that "you are formulating a principle of prima facie view" and the defence the Shinde group is taking against a case of split is that there is actually a realignment in the political party.
He added that the distinction between a split and rival faction is very thin and it is very easy for a Speaker to say prima facie, it is a case of split or not.
Justice Narasimha said but the question is what are the contours for the Speaker to take a prima facie view and it is a slippery ground because the Speaker is asked to take a prima facie view based on the material placed before him like signatures of MLAs and others. He further queried how much material should be there to enable a Speaker to take a prima facie view?
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Kaul contended that dissent is the hallmark of democracy and the argument from the other side is that the Eknath Shinde group represents the legislative party and not the original political party is a fallacy.
He added that with respect to disqualification, only a prima facie view has to be taken by the Speaker but the Uddhav Thackeray faction are asking Speaker to usurp what he doesn't have.
Kaul argued that they want the Speaker to embark on jurisdiction which is of Election Commission and they want the Governor to exercise jurisdiction which is in the domain of the EC.
The hearing in the matter will continue on Wednesday. The top court is dealing with Maharashtra political crisis triggered due to rebellion in Shiv Sena.