SC allows Election Commission to take call on which faction is ‘real’ Shiv Sena

Dealing a blow to Uddhav Thackeray who had to resign on June 29 following a dramatic turn of events sparked off by a group of rebel MLAs led by Shinde, the five-judge bench passed a brief order while rejecting his faction’s vehement plea to stop EC from deciding the CM’s petition

The Supreme Court on Tuesday cleared the decks for the Election Commission of India (ECI) to decide Maharashtra chief minister Eknath Shinde’s petition staking claim over the “real” Shiv Sena and the party symbol, dismissing a plea by the Uddhav Thackeray camp to restrain the poll body from adjudicating on the matter.

While the Shiv Sena has not split formally, the faction led by Shinde is supported by a majority of the party’s legislators. (Anshuman Poyrekar/HT PHOTO)

“We direct that there would be no stay of the proceedings before the Election Commission of India. The IA (interlocutory application) is accordingly dismissed,” ordered a Constitution bench, headed by justice Dhananjaya Y Chandrachud.

Dealing a blow to Uddhav who had to resign on June 29 following a dramatic turn of events sparked off by a group of rebel MLAs led by Shinde, the five-judge bench passed a brief order while rejecting his faction’s vehement plea to stop ECI from deciding the CM’s petition.

The bench, which included justices MB Shah, Krishna Murari, Hima Kohli and PS Narasimha heard a battery of lawyers from the two sides for almost five hours before giving a go ahead to ECI. Although no formal order was passed by the top court to restrain ECI, on two occasions in August, the poll body was orally asked by a previous bench to stay its hands and not proceed with Shinde’s plea on recognition of his faction as the “real” Shiv Sena and allotting it the bow-and-arrow symbol. The previous three-judge bench had said that the application by the Uddhav camp to hold back ECI will be considered by the Constitution bench.

The court nod to ECI on Tuesday will lead to resumption of the proceedings before the statutory body under para 15 of the 1968 Election Symbols (Reservation and Allotment) Order. On July 19, Shinde instituted the proceedings before ECI, which issued a notice to Uddhav three days later. Subsequently, the Uddhav camp moved the application before the top court to prevent ECI from proceeding under the Symbols Order, and the court orally asked the poll body to wait till the application is decided.

While the Shiv Sena has not split formally, the faction led by Shinde is supported by a majority of the party’s legislators; it has also claimed that it is the Shiv Sena. The Shinde camp’s rebellion forced Uddhav to resign as the Maharashtra CM on June 29. A day later, Shinde took over the post and proved majority on the floor of the House with the support of the Bharatiya Janata Party.

While Shinde welcomed the verdict, saying “we have never done anything outside the purview of the law”, the Thackeray faction said the battle is “important for democracy and the constitution”.

Arguing for the Uddhav camp on Tuesday, senior advocates Kapil Sibal and Abhishek Manu Singhvi emphasised that the proceedings before ECI would render the pending judicial proceedings meaningless. The senior lawyers contended that when the entire gamut of disputes over the disqualification of MLAs from the respective factions and the validity of Shinde’s takeover as the state CM were yet to be decided by the top court, it is imperative that ECI stays its hand. According to them, Shinde and his MLAs have no right to approach ECI and stake claim to the party since they have already given up the membership of Shiv Sena by their anti-party activities and hobnobbing with a rival party.

The Shinde faction was represented by senior advocates Neeraj Kishan Kaul, Maninder Singh, and Mahesh Jethmalani, who asserted that the pendency of disqualification proceedings under the 10th Schedule (anti-defection law) has nothing to do in law with the dispute before ECI. The senior counsel argued that disqualification could cost membership of the House but would not end a person’s membership with his party and therefore, every member of the party was entitled to approach the commission.

After an extensive hearing, the court ruled in favour of the Shinde-faction while deciding the issue relating to proceedings before ECI. The Constitution bench, however, is yet to take up the questions of law and constitutional interpretations emanating from the tussle between the two groups, who have filed multiple petitions.

A three-judge bench, in the reference order on August 23, noted that the matter “raises important issues” involving the contours of disqualification proceedings and the powers of the governor and the speaker in their respective spheres. It also doubted the correctness of the 2016 judgment by another five-judge bench in the Nebam Rabia (Arunachal Pradesh disqualification) case in holding that the speaker cannot initiate disqualification proceedings when his own removal is sought.

The raft of issues framed by the three-judge bench included the question as to whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under the 10th Schedule (anti-defection law) of the constitution. Other issues included the maintainability of a writ petition before a high court or the Supreme Court for inviting a decision on a disqualification proceeding and whether a court can disqualify a legislator.

The reference order sought the larger bench’s decision on the sanctity of the proceedings and decisions taken in the House during the pendency of disqualification petitions against the members and after they are held to be disqualified.

It also framed a legal issue regarding the authority of the governor to invite a person to form the government and whether the same is amenable to judicial review, besides seeking mapping out the power of the speaker to determine the whip and Leader of the House of the legislative party.

The five-judge bench was also called upon to ascertain the impact of the removal of Para 3 of the 10th Schedule, which did away with a split in a party as a defence against the disqualification of members, and the scope of the powers of the ECI with respect to determining a split within a party. “Are intra-party questions amenable to judicial review?” the smaller bench had asked.

“In a democracy, the majority carries the day. We have a majority in the Lok Sabha and state legislative assembly,” the chief minister said, adding that constitutional experts felt that their position was strong.

Yuva Sena chief Aaditya Thackeray said they will continue to fight the battle. “We have faith in the judicial process. This is a battle that is important for democracy and the Constitution and the entire country is watching it,” he said.