Shiv Sena crisis falls within realm of politics: Harish Salve tells Supreme Court

The Supreme Court, on Thursday, heard the arguments on the Shiv Sena crisis which began last year on the rift between CM Eknath Shinde and former CM Uddhav Thackeray. Harish Salve, senior advocate and King's Counsel, argued that the crisis belongs to the political realm and the court should not speculate on the crisis because it would be 'extremely perilious' for the judiciary. 

Speaking in his typically balanced calm baritone, Harish Salve, whose expertise in constitutional law is unparalleled, said arguments of Uddhav Thackeray's advocate Abhishek Manu Singhvi on the former Maharashtra Chief Minister's floor test, which he never faced, could not apply in the court. 

The Shiv Sena crisis

In 2022, Maharashtra CM Eknath Shinde, along with 40 of the 55 Shiv Sena MLAs, rebelled against then-CM and Shiv Sena chief Uddhav Thackeray. Left with only 15 MLAs, the latter lost majority and resigned from his post before taking the floor test and proving his majority.

On June 29, 2022, the apex court refused to stay the former Maharashtra governor Bhagat Singh Koshyari's order to the Maha Vikas Aghadi government (Congress + Shiv Sena + NCP) to take a floor test in the assembly. 

With Thackeray no more in the picture, Shinde was sworn in as the new Chief Minister by Koshyari the very next day. On February 23, 2022, the Thackeray faction submitted before the Supreme Court that Shinde's appointment as CM was the "direct and inevitable result" of two orders of the apex court that "disturbed the co-equal and mutual balance" between the judiciary and the legislature. 

'Not for us to decide'  

Arguing before the Supreme Court, Harish Salve said, "It would be extremely perilous for this court to embark on this journey. Mr. Thackeray 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." 

"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." 

"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," the senior advocate told the five-judge bench comprising Chief Justice of India (CJI) D Y Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.

While admitting that there are "leaks" in the 10th Schedule of the constitution (anti-defection law), Salve underscored the problems of "criminalisation of politics, election funding, spending in elections". However, he added there is a line the judiciary should not cross to address such problems.

He even defended the former Maharashtra governor for swearing in Shinde as the new CM as he questioned, "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?" Mr. Salve further said the governor's job is not to count heads. The hearing, however, remained inconclusive and it will resume when the court proceedings resume on March 14.