Uddhav vs Shinde : Supreme Court Asks Election Commission To Not Take Precipitative Action On "Real Shiv Sena" Claim

A 3-judge bench of the Supreme Court on Thursday said that it will decide on referring the issues arising out of the rift in Shiv Sena political to a Constitution Bench. The Chief Justice of India, leading the bench, orally said that a decision on reference is likely by August 8.

The bench also orally asked the Election Commission of India to not take any precipitative action on the claim raised by Eknath Shinde group for recognizing them as the real Shiv Sena party in the meanwhile. he bench observed in the order that ECI may give reasonable adjournment to the Uddhav Thackeray Group to file their responses in view of the pendency of the matter in the Supreme Court.

The Election Commission of India took the stand that the disqualification proceedings under the tenth schedule operate in a different territory and do not affect the Commission's power to decide the claim of rival factions for official recognition.

A bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli was hearing petitions filed by petitioners belonging to Eknath Shinde and Uddhav Thackeray factions of Shiv Sena party in relation to disqualification proceedings, election of Speaker, recognition of party whip, floor test for Shinde Government in the Maharashtra assembly and proceedings initiated by the Election Commission of India on request made by the Eknath Shinde-led faction for their recognition as the 'real' Shivsena and their claim over the party's election symbol - the bow and arrow.

Shinde group submits the questions of law

Shinde group's lawyer Senior Advocate Harish Salve,  who was asked by the bench yesterday to submit a revised list of issues in the case, started by reading out the questions of law proposed.

The questions are given below :

We cannot totally ignore political party, says CJI

Here, the CJI said that if they were to agree with Salve, then what is the use of the whip. "We cannot totally ignore the political party, it will be a danger to democracy," the CJI said.

Salve responded,

"In facts of this case, there is nothing to show that these people left the party. There are two important cases. It may be that a political party can decide to condone. So, it is not a per se illegality. And if months go by before disqualification is decided, are the votes given and decisions taken in the house, are they rendered illegal?"

Salve added that relating back does not mean everything they have done in the house is rendered illegal. "Relating back means disqualification relates back but the actions in the house are protected."

Shinde group can't claim to be real Shiv Sena

Senior Advocate Kapil Sibal on the other hand appearing for Uddhav group submitted that the 40 rebel MLAs are disqualified by their conduct and thus, they cannot say that they are the Shiv Sena.

"They are saying they have support of 40 out of 50 MLAs. Their argument is therefore they are political party. If 40 MLAS are disqualified, then what is the basis for their claim.?"

"This is not a normal case. Here the entire claim is based on support of majority MLAs. If they are disqualified, claim goes. Where does the balance of convenience lie? Why should it be made irreversible and fait accompli?", added Senior Advocate Dr Abhishek Manu Singhvi, also appearing for Uddhav group.

Submissions by ECI

Senior Advocate Arvind Datar appearing for the Election Commission submitted that the ECI is governed by Representation of People's Act and Election Symbols Order.

"As per Rule, we are bound to decide if a claim is raised by a group… 10th schedule is a different territory. If they are disqualified, they cease to be members of legislature. Not political party. These are different. Whatever happens in the assembly, that has got nothing to do with the membership of the political party."

Datar contended that the 10th schedule dies not interfere with the ECI's powers.

"Regulation came in 1965. 10th schedule has not interdicted the powers of the Election Commission. I am a separate constitutional body and the 10th schedule cannot interdict my functions."

However, the CJI told the ECI to not take any precipitative action in the meantime. "We are not passing any order. But at the same time don't take any precipitative action..."

Yesterday, the Top Court had heard the preliminary arguments in the cases relating to the dispute between Uddhav Thackeray and Eknath Shinde arising out of the rift within the Shiv Sena political party. After hearing the senior lawyers appearing for both sides for over an hour, the bench adjourned the hearing till today morning, asking Senior Advocate Harish Salve (who appeared for Eknath Shinde group) to re-draft the written submissions for more clarity.

Senior Advocates Kapil Sibal and Dr. AM Singhvi for Uddhav group had argued that since the rebellion group violated the chief whip, they are disqualified as per the tenth schedule. He also submitted that the protection under para 4 of the schedule is not available to them since they did not merge with another political party.

Salve appearing for Eknath Shinde argued that there was no split in the political party and rather, there was a dispute over its leadership, which can be said to be an "intra-party" dispute, not falling within the scope of defection.

Solicitor General Tushar Mehta appearing for Maharashtra Governor Bhagat Singh Koshyari submitted that the Court must consider whether the 10th schedule can be "misused" to curb intra-party democracy and to prohibit majority members from exercising their freedom of expression within the party.

A three-judge bench of the Supreme Court on July 20 had observed that the issues arising in the petitions filed in relation to the Shiv Sena rift may have to be referred to a larger bench. CJI NV Ramana orally remarked during the hearing that important constitutional issues arise in the cases which may require adjudication by a larger bench.  

On June 27, the division bench of Justices Surya Kant and JB Pardiwala had extended the time for the rebel MLAs to file written responses to the Deputy Speaker's disqualification notice till July 12.

The following are the petitions:

• Petition preferred by rebel Shiv Sena leader Eknath Shinde(now the Chief Minister) and the petition filed by Bharat Gogawale and 14 other Shiv Sena MLAs challenging the disqualification proceedings initiated by the Deputy Speaker and seeking to restrain the Deputy Speaker from taking any action in the disqualification petition until the resolution for removal of Deputy Speaker is decided. On June 27, the division bench of Justices Surya Kant and JB Pardiwala had extended the time for the rebel MLAs to file written responses to the Deputy Speaker's disqualification notice till July 12.
• Petition filed by Shiv Sena Chief Whip Sunil Prabhu(belonging to Uddhav Thackeray group) challenging the Maharashtra Governor's direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government. On June 29, the Supreme Court had refused to stall the floor test. After the Court's order, Uddhav Thackeray announced his resignation as the Chief Minister and Eknath Shinde was later sworn-in as the CM.
• Petition filed by Sunil Prabhu, the whip appointed by Uddhav Thackeray-led group, challenging the action of the newly elected Maharashtra Assembly Speaker recognizing the whip nominated by the Eknath Shinde group as the Chief Whip of Shiv Sena.
• Petition preferred by Mr. Subhash Desai, the General Secretary of the Shiv Sena(of Uddhav group) assailing the decision of the Maharashtra Governor to invite Eknath Shinde to be the Chief Minister of Maharashtra and challenging the further proceedings of the State's Legislative Assembly held on 03.07.2022 and 04.07.2022 for election of the new Speaker and the vote of confidence of Shinde government as 'illegal'.

Recently, Uddhav Thackeray group of the Shiv Sena had approached the Supreme Court challenging the decision of the Lok Sabha Speaker, Om Birla in approving MP Rahul Shewale of the Eknath Shinde group as the party's floor leader.

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