Speaker’s verdict big boost for Eknath Shinde in Sena vs Sena

Former chief minister Uddhav Thackeray called the order “murder of democracy” and announced that he would challenge it in the top court

Maharashtra assembly speaker Rahul Narwekar ruled on Wednesday that chief minister Eknath Shinde’s party was the real Shiv Sena and turned down demands to disqualify either faction’s lawmakers, marking a significant victory for the ruling coalition in the fractious battle for control of the regional outfit.

Eknath Shinde and Uddhav Thackeray. (File)

Narwekar’s ruling – which came weeks after the Supreme Court fixed a deadline for him to decide on long-pending petitions filed by rival factions of the Sena -- keeps the numbers in Maharashtra assembly intact, and Shinde’s chief ministership safe.

The battle for control of the Sena, a case that will not only have ramifications for another ongoing feud between rival factions of the Nationalist Congress Party but also any future schisms in political parties, will now move to the apex court.

The Shiv Sena suffered a vertical split in 2022 when Shinde and 39 other legislators walked out of the party then led by Uddhav Thackeray and joined hands with the BJP. (HT graphics)

Narwekar said the 10th schedule of the Constitution could not be invoked to use to quell intraparty dissent and indiscipline, and turned down the demand to disqualify Shinde and his 38 lawmakers from the House.

He, however, also rejected the Shinde faction’s plea to disqualify 14 members of legislative assembly (MLA) from the Thackeray faction, citing certain technical flaws. The pleas for disqualification of Thackeray’s MLAs, he said, was sent to him through an unknown cell phone number, rather than by Sena whip Bharat Gogawale.

The decision sparked a political controversy. Former chief minister Uddhav Thackeray called the order “murder of democracy” and announced that he would challenge it in the top court.

Shinde welcomed it. “I have always fought against forces that compromised for political gains and did not have respect for people’s mandate. If one has to protect democracy then the internal democracy of the party also has to be respected,” he said.

The Sena suffered a vertical split in 2022 when Shinde and 39 other legislators walked out of the party then led by Uddhav Thackeray and joined hands with the Bharatiya Janata Party (BJP) to form the government.

By its judgment on May 11, a Constitution bench invalidated the Maharashtra governor’s decision asking then CM Uddhav to face a floor test last year and flagged a flurry of errors during the political drama that toppled the three-party Maha Vikas Aghadi government, but refused to put him back in the saddle because he voluntarily resigned instead of facing the trust vote in the assembly.

At the time, the court left it for Narwekar to decide the disqualification petitions pending against both Shinde and Thackeray groups, rejecting Thackeray camp’s plea that the court should decide the disqualification petitions by itself because of the alleged bias of the BJP leader.

By a separate decision on February 17, 2022, the Election Commission ruled that Shinde’s faction will inherit the Shiv Sena name and its bow-and-arrow symbol. The NCP suffered a similar fate in July this year, prompting Sharad Pawar loyalist Jayant Patil to move the top court, seeking a directive to Narwekar for a time-bound disposal of the disqualification petitions filed against Ajit Pawar and the MLAs backing him.

In his detailed ruling on the disqualification petitions, Narwekar first determined which faction constituted the real Sena. For this, he relied on three things: Legislative majority which is with Shinde; what the original Shiv Sena constitution states about the leadership structure; and finally what the leadership structure says about the powers of the party president.

Narwekar ruled that the party constitution and its leadership structure were not in conformity with one another.

He considered the party constitution of 1999 available with the Election Commission of India (ECI) and when Shiv Sena founder Bal Thackeray was still alive. Uddhav Thackeray, who assumed presidency of the party upon his death, did not convey this change to ECI.

The Thackeray faction said that the amendment stating Uddhav Thackeray was the “all-powerful party president” was conveyed to ECI in February 2018 when, the party said, he was re-elected for a second five-year term. The Shinde faction contested this and the speaker upheld the contention saying there was no record of the same with ECI.

“The evidence submitted during the hearing failed to prove that the organisational elections were held on that day (giving all powers to take a call on party affairs to party chief Uddhav Thackeray). In such a scenario, we had to rely upon the constitution on record with ECI. As such the constitution prevailing in 1999 is the document on record. According to it, the leadership structure is not in conformity with the constitution and failed to provide reliable outcome as to which is the real party,” he ruled.

Narwekar further said that the Shiv Sena’s constitution makes no provision for the post of paksha pramukh (as self-conferred by Uddhav Thackeray in 2018) and that the contention of the Thackeray faction that the will of the party president is synonymous with the will of the party cannot be allowed.

The real political party, he said, was discernible from the legislative majority which existed when the party split on June 22, 2023. “From my analysis, I hold that the Shinde faction was the real Shiv Sena party when the two rival factions emerged.”

In the absence of clues from the party’s constitution that the will of the chief and the party were one and the same, it became clear to him that the party which prevailed numerially at the time of the split was the one led by Eknath Shinde.

Further, the speaker saw the split in the Shiv Sena as a dispute between the two leaders and opined that Uddhav Thackeray had no authority to remove Shinde from the party.

Shinde was validly recognised as the leader of the party in the legislature from the day Sunil Prabhu, the chief whip appointed by Uddhav Thackeray, was replaced by the whip appointed by the Shinde faction, Bharat Gogawale.

Keeping that in mind, the speaker said, the whip issued by Prabhu for a meeting of all lawmakers and for the election of the speaker ahead of the no-confidence motion was invalid. “Thus, the petitions by the UBT faction for the disqualification of the Shinde faction members for voluntarily giving up party membership and anti-party activities stand rejected,” he ruled. Since the Prabhu’s whip was not valid the provisions under 10 schedfule which deals with defection, could not be applied, he said.

Here, Narwekar was at clear variance from the Supreme Court which, on May 11, 2023, ruled that the appointment of Bharat Gogawale from the Shinde faction as the Shiv Sena party whip was illegal and referred the issue of disqualification to the Speaker. The apex court also said that the decisions of the then governor Bhagat Singh Koshyari were not correct.

Narwekar’s order, pronounced over an hour-and-half came on the back of 23 hearings, including cross examination from both the sides that started on September 14th and concluded on December 20th.