Supreme Court refuses to stay Election Commission proceedings on Eknath Shinde’s claim over Shiv Sena 

September 27, 2022 09:44 pm | Updated 09:44 pm IST

A Constitution Bench led by Justice D.Y. Chandrachud hears the Shiv Sena case in the Supreme Court’s Court No. 2 on September 27, 2022. Photo: YouTube/NIC Webcast

A Constitution Bench led by Justice D.Y. Chandrachud hears the Shiv Sena case in the Supreme Court’s Court No. 2 on September 27, 2022. Photo: YouTube/NIC Webcast

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.

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 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,” 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.

Sibal asked what was the point of the ECI deciding that 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 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?” Singhvi asked during the hearing.

Election Commission to apply ‘rule of majority’ while deciding on the real Shiv Sena matter: CEC 

After the Supreme Court’s go ahead to decide on the Shiv Sena rebel group’s plea seeking recognition of “real Shiv Sena” and allot the party’s election symbol to the group, the Chief Election Commissioner (CEC) Rajiv Kumar said the ECI will follow the laid down process while deciding on the matter.

Kumar said that the ECI will apply the transparent process of the “rule of majority” while taking the decision on the plea of the breakaway faction. Kumar made the remark while responding to a query in Gandhinagar where the top officials of the ECI reviewed the poll preparations for the Assembly elections of Gujarat.

Maharashtra Chief Minister Eknath Shinde group’s has filed a plea in the ECI seeking recognition as the “real” Shiv Sena and allocation of the party’s bow-and-arrow poll symbol to it, a claim contested by the party supremo Udhdhav Thackeray.

According to Kumar, the poll watchdog has laid down a transparent process of the “rule of majority” in place and it is applied when dealing with such pleas. “There is a set procedure which mandates us and we define it in terms of a very transparent process by judging and applying the ‘rule of majority’. We will apply the ‘rule of majority’ whenever we are looking at it. This will be done after reading the exact decision (of SC),” the CEC said when asked about the apex court’s order.

Sabotage suspected after leaks in Russia’s Nord Stream pipelines 

The two Nord Stream gas pipelines linking Russia and Europe have been hit by unexplained leaks, Scandinavian authorities said Tuesday, raising suspicions of sabotage.

The pipelines have been at the centre of geopolitical tensions in recent months as Russia cut gas supplies to Europe in suspected retaliation against Western sanctions following its invasion of Ukraine.

Gas bubbles from the Nord Stream 2 leak reach surface of the Baltic Sea in the area that shows disturbance of well over 1 km diameter near Bornholm, Denmark on September 27, 2022.  Photo: Danish Defence Command via Reuters

Gas bubbles from the Nord Stream 2 leak reach surface of the Baltic Sea in the area that shows disturbance of well over 1 km diameter near Bornholm, Denmark on September 27, 2022. Photo: Danish Defence Command via Reuters

Russia said it was “extremely concerned” about the leaks. Asked by reporters whether it could be an act of sabotage, Kremlin spokesman Dmitry Peskov said that at the moment “it is impossible to exclude any options”.

While the pipelines, which are operated by a consortium majority-owned by Russian gas giant Gazprom, are not currently in operation, they both still contain gas but the environmental impact appeared limited so far.

One of the leaks on Nord Stream 1 occurred in the Danish economic zone and the other in the Swedish economic zone, while the Nord Stream 2 leak was in the Danish economic zone. A leak was first reported on Nord Stream 2 on Monday.

“Authorities have now been informed that there have been another two leaks on Nord Stream 1, which likewise is not in operation but contains gas,” Danish climate and energy minister Dan Jorgensen told AFP in a statement on Tuesday.

“It is too early to say anything about the causes of the incidents,” the Danish Ministry of Climate, Energy and Utilities said in a statement. Denmark’s energy agency has, however, called for “higher levels of preparedness in the electricity and gas sector” in the country, Jorgensen said.

A Nord Stream spokesperson told AFP that they had not been able to assess the damage but conceded that “an incident where three pipes experience difficulties at the same time on the same day is not common.”

The Danish energy agency told the Ritzau news agency that only the area where the gas plume is located will be affected by the leak, but methane escaping into the atmosphere has a “climate-damaging effect”.

“Gas pipeline leaks are extremely rare and we therefore see a reason to increase the level of preparedness following the incidents we have witnessed over the past 24 hours,” director of the Danish Energy Agency Kristoffer Bottzauw said in a statement.

Built in parallel to the Nord Stream 1 pipeline, Nord Stream 2 was intended to double the capacity for Russian gas imports to Germany.

Meanwhile, German daily Tagesspiegel reported that “the Nord Stream pipelines may have been damaged by targeted attacks and leaked as a result”. According to a source close to the government and relevant authorities, quoted in the newspaper, “everything speaks against a coincidence”.

83% Indian students believe foreign degrees land them better jobs: Study  

Nearly 83% of Indian students believe an overseas degree will enhance their prospects of securing better jobs and provide an edge over competition, according to a study.

The Leap-Ipsos Strategy Study Abroad Outlook Report unveiled on Tuesday said 57% of Indian middle-class households – income between ₹3 lakh and ₹10 lakh – are inclined towards spending on overseas education.

The report gives a critical insight into how foreign education is becoming popular with this segment, the largest of the Indian population. Leap co-founder Vaibhav Singh said, “Fuelled by the student community’s growing aspirations, the Indian overseas education market is expected to grow multifold and will see over two million Indian students fly out by 2025, spending over $100 billion on their international education. This is a huge opportunity and the sector will see a meteoric rise in demand for innovative products and services.”

According to the report, 83% of students believe an overseas degree will enhance their prospects of landing better jobs. Thanks to global connectivity, 42% of Indian students are open to destinations beyond anglophone countries that don’t have English as their first language, the statement said.

“This reflects that Indian students are widening their choices and becoming more flexible in their preferences of an overseas education destination. Factors they are considering for making this choice include university ranking, scholarship, cost of living, etc,” it said.

Aspirants are showing more trust in taking education loans. Over 62% of Indians prefer education loans, while 53% try scholarships, the report showed. The significant increase in preference for education loans is expected to boost the study abroad loan market in the coming years, it said.

About 60% of the aspirants covered in the study were men while 39% were women. Two percent of the surveyees did not wish to mention their gender. Two-third of the aspirants were aged 18-24 years while about 34% were aged 25-30 years.

Supreme Court reserves verdict on pleas challenging Centre’s 10% EWS quota 

The Supreme Court on Tuesday reserved its verdict on a batch of pleas challenging the validity of the 103rd Constitution amendment providing 10% reservation to economically weaker sections (EWS) persons in admissions and government jobs.

A five-judge Constitution Bench headed by Chief Justice Uday Umesh Lalit reserved the verdict on the legal question of whether the EWS quota violated the basic structure of the Constitution after hearing a battery of senior lawyers including Attorney General K.K. Venugopal and Solicitor General Tushar Mehta in the marathon hearing that lasted for six-and-a half days.

Academician Mohan Gopal had opened the arguments in the case before the Bench, which also comprised Justices Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi, and J.B. Pardiwala, on September 13 and opposed the EWS quota amendment by terming it as “deceitful and a backdoor attempt” to destroy the concept of reservation.

Senior lawyers including Ravi Verma Kumar, P. Wilson, Meenakshi Arora, Sanjay Parikh, and K.S. Chauhan and advocate Shadan Farasat also assailed the quota, saying it also excluded the poor belonging to the Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs) categories, and defeats the creamy layer concept.

Tamil Nadu, represented by senior advocate Shekhar Naphade, also opposed the EWS quota, saying the economic criteria cannot be the basis for classification and the top court will have to revisit the Indira Sawhney (Mandal) judgement if it decides to uphold this reservation.

On the other hand, the attorney general and the solicitor general vehemently defended the amendment, saying the reservation provided under it was different and had been given without disturbing the 50% quota meant for the socially and economically backward classes (SEBC). Hence, the amended provision does not violate the basic structure of the Constitution, they said.

The solicitor general argued in detail about the state’s power to take affirmative action to elevate the poor among the general category and said the constitutional amendment strengthens the basic feature of the Constitution and its validity cannot be tested on grounds of some statistics.

The Bench, on September 8, had framed three broad issues for adjudication arising from the pleas challenging the Centre's decision to grant 10% reservation to EWS in admissions and jobs. The Bench had said the three issues suggested by the attorney general for the decision “broadly” covered all the aspects relating to the petitions on the constitutional validity of the decision to grant the reservation.

“Whether the 103rd Constitution amendment Act can be said to breach the basic structure of the Constitution by permitting the State to make special provisions, including reservation, based on economic criteria,” read the first issue framed.

The second legal question was whether the constitutional amendment could be said to breach the basic structure by permitting the state to make special provisions concerning admissions to private unaided institutions.

“Whether the 103rd Constitution amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs, SCs/STs from the scope of EWS reservation,” the third issue, to be adjudicated upon by the Bench, read.

The doctrine of basic structure was propounded by the top court in 1973 while deciding the Keshavananda Bharati case. It was held that Parliament could not amend every bit of the Constitution, and aspects such as rule of law, separation of powers, and judicial freedom formed part of the “basic structure” of the Constitution and hence, could not be amended.

The Centre, through the 103rd Constitutional Amendment Act, 2019, introduced the provision for Economically Weaker Sections (EWS) reservation in admissions and public services.

Earlier, the Centre, in 2019, had also told the apex court that its law, granting a 10% quota for Economically Weaker Sections (EWSs), was brought in to promote “social equality” by providing "equal opportunities in higher education and employment to those who have been excluded by virtue of their economic status”.

The Lok Sabha and the Rajya Sabha cleared the Bill on January 8 and 9 in 2019 respectively and it was then signed by then President Ram Nath Kovind. The EWS quota is over and above the existing 50% reservation to SCs, STs, and Other Backward Classes (OBCs).

In Brief: 

The Enforcement Directorate has frozen all the bank accounts, merchant IDs in payment gateways and fixed deposit of the Coda Payments India Private Limited (CPIPL) with a total balance of ₹68.53 crore, as part of a probe into the alleged unauthorised deductions from the accounts of unsuspecting online game users. The agency also conducted searches on three premises linked to CPIPL. The ED investigation is based on multiple cases registered against the company and one “Garena Free Fire” mobile game alleging unauthorised payment deductions from end users’ accounts. The CPIPL had so far collected about ₹2,850 crore, of which ₹2,265 crore was remitted outside India after retaining a certain percentage of the revenue for payment of taxes and nominal profits, said the agency.

Evening Wrap will return tomorrow.  

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