In a blow to Uddhav Thackeray, a Constitution Bench of the Supreme Court on Tuesday allowed the Election Commission of India (ECI) to go ahead and decide on Maharashtra Chief Minister Eknath Shinde's claim that his faction represents the "real" Shiv Sena party.
The Bench led by Justice D.Y. Chandrachud dismissed the Thackeray camp's plea to stay the Election Commission of India (ECI) proceedings under the Election Symbols (Reservation and Allotment) Order of 1968.
Mr. Thackeray’s side argued that disqualification petitions against the Shinde faction were pending before the Assembly Speaker under the Tenth Schedule (anti-defection law) of the Constitution. Moreover, they contended that the ECI proceedings should be stayed till the Constitution Bench decides questions of law referred to it, which include whether the dissent of Mr. Shinde’s faction, without subsequently forming a new party or merging with another, amounted to a “split” from the original Shiv Sena party. A “split” from the original political party without a subsequent merger with another party or formation of a new faction is not a defence under the Tenth Schedule since January 1, 2004.
But Justice Chandrachud, speaking for the five-judge Bench, said it was a “bit of a problem” to accept the argument that proceedings before a constitutional authority like the ECI should be “stultified” merely for the fact that questions about the disqualification proceedings were referred to a Constitution Bench.
“The mere fact that a reference has been made does not stall a constitutional authority like the Election Commission from taking recourse to its powers under the law… It is true the Tenth Schedule post January 1, 2004 does not recognise ‘split’. On the other hand, there is the Symbols Order which contemplates that there could be more than one faction of a political party. Now, the Symbols Order governs a political party. The ambit of the disqualification provisions of the Tenth Schedule is the legislature party. The Speaker, in the course of deciding whether there is a case of disqualification or not, cannot decide which group of persons form the wider political party…” Justice Chandrachud addressed the Thackeray camp, represented by senior advocates Kapil Sibal, Abhishek Manu Singhvi and Devadatt Kamat, and advocate Amit Anand Tiwari.
Senior advocates Neeraj Kishan Kaul and Mahesh Jethmalani, for the Shinde group, said even disqualification as MLAs would not disqualify them from the primary membership of the political party. The ECI had power under the 1968 Order to deal with claims of two rival factions over the party. “There is nothing in the Tenth Schedule which dilutes the ECI’s jurisdiction under the 1968 Order,” Mr. Kaul submitted.
Justice Chandrachud said the Shinde faction claims they have affidavits from 1.5 lakh party members saying it is their group which is the actual Shiv Sena.
“Does the Speaker have the power to admit this as evidence, decide this matter which is otherwise within the ambit of the ECI… The ambit of the ECI in terms of the Symbols Order is the entire political party, which has a much wider configuration than the legislative unit of the same party… The whole concept of disqualification under the Tenth Schedule is in relation to the House. The Election Commission decides which of the rival factions represents the whole party… Just because the legislative wing of the party is brought under the cloud of disqualification, the ECI proceedings are to be stultified from exercising its jurisdiction with regard to the non-legislative wing of the party? That is a bit of a problem,” Justice Chandrachud observed.
The Shinde faction argued that the Speaker’s ambit under the anti-defection law is restrained to the House. The Speaker cannot decide who actually represents the “larger” political party, which includes both elected MLAs and ordinary party members outside the House that form the bulwark of a political party. It is the Election Commission which is empowered to decide on the question of ‘split’ and which of the two rival factions represents the political party.
Senior advocate Arvind Datar, for the Election Commission, and Solicitor General Tushar Mehta, said it was wrong to entwine the disqualification process with the ECI’s proceedings.
Mr. Sibal asked what was the point of the ECI deciding that Mr. Shinde’s faction represents the party when they could be disqualified for defection for having given up the membership of Shiv Sena and having violated the party Whip. The disqualification proceedings precede Mr. Shinde’s petition to the ECI to recognise his faction as the true party.
“Mr. Shinde’s group had neither merged with another party nor formed a new party. Their ‘split’ is not protected under the Tenth Schedule. But that is exactly what the ECI is being asked to do now — to recognise the ‘split’. This would cause irreversible harm. Imagine an unreal situation if ECI recognises the faction but they are disqualified under the Tenth Schedule?” Mr. Singhvi asked during the hearing.