On February 15, the Supreme Court of India resumed hearing arguments relating to constitutional problems brought up by the split in the Shiv Sena party between the Eknath Shinde and Uddhav Thackeray parties. The question before the panel was whether the Nabam Rebia v. Deputy Speaker (2016) ruling should be sent to a seven-judge Supreme Court bench. The case was heard by the panel that included Chief Justice DY Chandrachud, Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha.

After the lawyers for the Uddhav Thackeray and Eknath Shinde factions argued their cases, Solicitor General of India Tushar Mehta attempted to submit arguments on behalf of the Maharashtra Governor.

"We don't have a two party system. India is multi party democracy. Multi party democracy means we are in the era of alliances. There are two types of alliances - pre poll alliance, post poll alliance. Post poll is usually an opportunistic alliance to complete the numbers but pre poll alliance is a principled alliance. There was a pre-poll alliance between two political parties – BJP and Shiv Sena. As Kihoto explains, when you go before the voter, you don't go as an individual candidate but as a representative representing a political ideology, a representative who will go and say, this is our shared belief, our shared agenda. The voter doesn't vote for individuals but for the ideology or the political philosophy that the party projects. We hear the word 'horse trading'. Here, leader of stable (Uddhav Thackeray) formed government with those against whom they contested the election (Congress and NCP) and a negative vote was given by the electorate against a particular party."

CJI DY Chandrachud interjected –

"How can Governor be heard to say all this? On the formation of government, how can the Governor say this? When they form a government, governor is asked to give a trust vote...We are only saying Governor should not enter political arena."

According to the Solicitor General, he was merely introducing his arguments with facts to demonstrate that Nabam Rebia was a sound judgement, negating the need for citation. 

He claimed that: 

"Right to conscience is a right pleaded while challenging the constitutional validity of these provisions(10th schedule). If your lordships were to leave power to the speaker to disqualify even in case of a legitimate dissent exercising the right to conscience, possibly your lordships may have to revisit such challenges."

SG Mehta concluded his arguments by stating–

"Out of 55 elected persons of the party, 40 people want speaker to go. But the speaker says, and CM says that there was no disqualification...Tenth schedule is not a weapon to stifle bonafide dissent but a weapon to control unprincipled defection. This unbridled power takes away the accountability of the leader of the house, accountability to MLAs. They cannot exercise their freedom of expression and conscience."

Supreme Court has now concluded hearing. The Court would also pronounce if the case is to be heard by 7 judges bench.

NV Ramana, Chief Justice of India, Justice Krishna Murari, and Justice Hima Kohli made up the three-judge panel that had referred the cases to the Constitution. The 11 items were presented by Bench for deliberation.

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. 
Citation: WP(C) No. 493/2022