How Shiv Sena is working to escape anti-defection law

The cross-examination of witnesses in the Sena vs Sena battle in Mumbai has concluded. The Shiv Sena's strategy is to fight against the anti-defection law. The party argues against a split and claims Uddhav Thackeray had no power to lead the party. The next phase of cross-examination will focus on Thackeray's deviation from the Hindutva agenda. The Shinde faction will argue that the majority of leaders were aligned with Shinde, making the anti-defection law not applicable. The faction also claims that Thackeray's appointment as chief of the party was not submitted to the Election Commission of India.

MUMBAI: The cross examination of witnesses from the Thackeray faction by Shinde faction in the fourth leg of Sena vs Sena battle concluded at Vidhan Bhavan on Saturday. As the proceedings on the disqualification petition against chief minister Eknath Shinde enters a crucial stage, the Shinde-led Shiv Sena’s strategy has become clear – to do everything to keep the anti-defection law at bay.

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The party has argued against a split, as Uddhav Thackeray was never in position to lead the party and majority of the legislators stood by Shinde to run it, aligned with its Hindutva ideology.

Over the last seven days’ cross-examination of people from the Thackeray faction, Shinde faction’s counsels pressed hard on the amendment in Shiv Sena’s constitution in 2018, which its counsel Mahesh Jethmalani argued had no validity. Therefore, Uddhav Thackeray had no power to appoint people or issue orders to MLAs who had walked out of the party, in June 2022. Additionally, the faction also insisted that Sunil Prabhu had no right to issue the whip and that Shinde led the real party as he was backed by numbers.

Led by Jethmalani, the counsels cross-examined Sena (UBT) chief whip Sunil Prabhu and party office secretary Vijay Joshi over the last seven sessions. Going forward, counsels representing the Thackeray faction will cross-examine at least seven witnesses, including Uday Samant, Sanjay Rathod and Bharat Gogawale, from the Shinde side over the next three to four sessions, beginning December 7, at the winter session of the assembly in Nagpur.

The oral arguments are expected in the second and third weeks of the month, in accordance to the deadline – December 22 -- set by assembly speaker Rahul Narwekar. He is expected to announce his verdict before December 31 – a matter he has highlighted several times in the course of the hearing this week.

It is now up to the Thackeray faction to plan its strategy.

A senior leader from the Thackeray camp underscored that the Shinde faction had steered clear of two crucial factors -- the defection according to schedule 10 and the election of speaker Narwekar that took place before the floor test by Eknath Shinde. “They are aware that it may go against them. Instead, they have been insisting on how the whip issued by Sunil Prabhu was not applicable to the MLAs who had walked out of Shiv Sena on June 21, 2022. They have claimed that Prabhu was removed as whip on June 22 by majority of the MLAs that stood by Shinde and Bharat Gogawale was appointed as the chief whip,” said the leader.

He also pointed out that Jethmalani bringing up the question of Thackeray deviating from the Hindutva agenda on Saturday is an idea that will be taken forward by in the next phase of cross-examination.

On the matter of the ‘real’ Sena, one of the legal experts abreast of the proceedings said, “Shinde’s counsels will stand firm against the argument of ‘defection’ as the majority of leaders were aligned with him, rendering schedule 10 of the constitution not applicable.”

Other ideas that will come up again are Uddhav Thackeray’s appointment as Paksha Pramukh (chief of the party) as per the January 2018 elections. The Shinde faction has claimed that the copy of the election procedure and the constitution amended in the meeting held on January 23 that year, was not submitted to the Election Commission of India (ECI). The faction has stated that according to the ECI records, the party constitution of 1999 is legit when late Bal Thackeray was elected as Shiv Sena Pramukh (chief of Shiv Sena).

“By contesting Thackeray’s leadership, the Shinde faction wants to establish his appointment of the whip and other leaders null and void, after the split. We however have the proofs to show how the copy of the amended constitutions was submitted to ECI on April 4, 2023. Also, copies of earlier resolutions passed during five elections, including 2013 when Uddhav Thackeray was elected as Paksha Pramukh, was also submitted to the poll body,” said a senior leader from Thackeray faction.