SC tells EC to hold off on Shinde camp’s plea

The bench also indicated that it would disclose its mind on August 8 on referring the matter to a five-judge in the wake of the points of law surrounding the tussle between the two factions and applicability of the anti-defection law.

The Supreme Court on Thursday asked the Election Commission of India (ECI) not to proceed on Maharashtra chief minister Eknath Shinde’s plea to declare his group as the “real” Shiv Sena, turning down the poll body’s argument that disqualification of MLAs from either the Shinde or Uddhav Thackeray camp has nothing to do with recognition of a political party and allotment of election symbol.

(HT Photo)

Observing that it may spell out on August 8 whether the legal issues arising out of the split in the Shiv Sena need to be referred to a constitution bench of five judges, a three-judge bench headed by Chief Justice of India NV Ramana opined that ECI should stay its hand for the time being and not pass any order on the Shinde camp’s plea when it comes up before the statutory body on August 8.

“The argument of the other side is that if you recognise the other group as the original political party, everything will go. Can’t you hold proceedings for some time? Don’t precipitate anything,” the bench, which also comprised justices Krishna Murari and Hima Kohli, told senior counsel Arvind Datar, appearing for ECI.

Datar, on his part, sought to persuade the bench that ECI is concerned with a political party and not with disqualification of MLAs, which is the bone of contention between the Shinde and Uddhav camp.

“What happens in an assembly has nothing to do with a political party. We are duty bound under the law and the election Symbol Order to issue notice and decide if any group approaches us. We are a separate constitutional body. We cannot be interdicted by the Tenth Schedule (anti-defection law). We have to decide on the basis of evidence,” argued Datar.

But the bench asked ECI to exercise restraint and adjourn the proceedings on Shinde’s plea until its further orders. “We are not passing any formal order but don’t precipitate anything,” it told Datar.

With this, the court extended the restraint on disqualifying MLAs from both the Shinde and Uddhav camps by the Maharashtra Speaker also to a determination by ECI as to which of the two factions is the real Shiv Sena entitled to use bow and arrow as its symbol.

A coup by rebel MLAs forced Uddhav to resign as CM on June 29, leading to a dramatic takeover by Shinde as the Maharashtra CM. Later, the Shinde faction proved majority on the floor of the House with the support of the Bharatiya Janata Party (BJP), whose leader Devendra Fadnavis took oath as deputy chief minister on June 30.

The bench also indicated that it would disclose its mind on August 8 on referring the matter to a five-judge in the wake of the points of law surrounding the tussle between the two factions and applicability of the anti-defection law.

Senior counsel Kapil Sibal, representing the Uddhav faction, contended that the matter does not require to be heard by a constitution bench and that the three-judge bench was competent to decide all issues. He added that his side wants a quick decision.

The CJI, however, retorted: “Let me see. We may decide on Monday.”

The order on the larger bench was reserved after senior counsel Harish Salve, appearing for the Shinde camp, submitted a revised list of legal issues that require to be settled in the case. Most of these issues revolved around the process and consequences of disqualification of MLAs for anti-party activities – the point raised by the Uddhav faction in the Supreme Court, demanding disqualification of Shinde and his MLAs.

“The anti-defection law cannot be the anti-dissent law. The law seeks to strike a balance. Nobody is disqualified without rendering a finding. There is no concept of automatic disqualification. Therefore, the issue is if there is no finding by any authority regarding disqualification of MLAs, can this court, at the first instance, hear these (Uddhav camp’s) petitions bypassing the Speaker?” Salve argued.

He added that actions in the House are protected even if a legislator can get disqualified in the future. “If a member, against whom the disqualification proceedings are pending can act as a legislator until the final decision, how can the actions in the House be held bad? When a legislator is disqualified on the grounds of corrupt practices after he is elected, it is not that everything done by him is obliterated. If it cannot wipe out everything under the Representation of the People Act, it cannot do so under the Tenth Schedule. What happens in the House is protected or it will create havoc,” submitted Salve.

The senior counsel urged the bench not to accept the request made by the Uddhav faction to decide the pending disqualification petitions by itself. “Allegations against Speaker are in every case. This is not new. But that does not mean the court should decide at the first instance bypassing the Speaker,” said Salve. The Shinde camp has not opposed a larger bench to hear the matter.

On July 20, the court had observed that some “important constitutional issues” emanate from the petitions arising out of the split in the Shiv Sena, musing that a larger bench may be needed to settle the points of law. The court had on that day asked both sides to submit the legal issues involved in the matter to enable it to examine if a constitution bench should ideally hear it.

The top court is seized of a batch of six petitions filed by Shinde and Uddhav factions in relation to disqualification proceedings against the MLAs of both camps, election of Rahul Narwekar as new Speaker of the assembly, recognition of a new party whip for Shiv Sena, and the governor’s directive to Uddhav for proving majority on the floor of the house and subsequently inviting Shinde to form the new government in the state.

While the first two petitions in the Supreme Court were filed by the Shinde faction to stop the deputy speaker (there was no speaker at the time) from disqualifying them as MLAs, the Thackeray camp also approached the apex court later, challenging the actions of the governor in directing Thackeray to prove the majority on the floor of the House as well as inviting Shinde to form the government in the state.

The Uddhav camp further challenged Narwekar’s decision to recognise Shinde as the leader of Shiv Sena and appointment of a new chief whip of the party. Apart from these petitions, the Uddhav camp has also moved a plea to stop ECI from deciding Shinde’s plea on recognising the latter’s group as the real Shiv Sena and allot to them the bow and arrow symbol.