Supreme Court Rejects Uddhav Group's Plea To Stop Election Commission From Deciding Eknath Shinde's Claim As Real Shiv Sena

A 5-judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha was hearing the interim application moved by the Uddhav Thackeray group to restrain the Election Commission of India from deciding the claim raised by Eknath Shinde group for recognition as the official Shiv Sena party.

HIGHLIGHTS FROM THE HEARING

In what capacity Shinde has moved ECI? Bench asks

During the hearing, the bench asked Uddhav group's lawyer Senior Advocate Kapil Sibal in what capacity did Shinde approach the Election Commission of India (ECI) with his claim as the real Shiv Sena.

Sibal replied that it was the whole issue, as Shinde cannot approach the ECI once he has incurred disqualification. "I challenged the very locus of the person who moved the EC", Sibal submitted.

The bench further asked which powers of the ECI have been invoked. Sibal replied that Shinde's claim is on the basis of Election Symbols(Reservation and Allotment) Order and the decision of the Supreme Court in the Sadiq Ali case. He added that when the decision of the Apex Court in Sadiq Ali And Anr. v. Election Commission of India And Anr. came about, the Tenth Schedule was yet to be introduced in the Constitution.

He contended that Shinde has incurred disqualification as his various acts/omissions amounted to 'voluntarily giving up membership of the party' under Paragraph 2(1)(a) of the Tenth Schedule. Apart from that he has also violated the party whip as per Paragraph 2(1)(b) of the Tenth Schedule.

Does the dispute in relation to the legislature party affect the jurisdiction of Election Commission in relation to the political party?

The bench observed that the issue is in relation to the ambit of jurisdiction of the Speaker under the Tenth Schedule and ambit of jurisdiction of the Election Commission with respect to the symbol order.

 "The political party is a much wider configuration than the legislative unit of that party which consists of the elected members...does the dispute in relation to the former in the legislative unit affect the authority of Election Commission. That is the heart of the matter", Justice Chandrachud observed.

Sibal replied that legislature party works within the framework of the political party and that there is an umbilical cord linking them.

The bench asked how would disqualification under the tenth schedule have effect on the Symbols order? Sibal replied that allowing a disqualified member to approach the Election Commission can spell doom for democracy.

"Then any government can be thrown out and they will have their own Speaker who will not decide on disqualification", replied the senior counsel.

He highlighted that disqualification under Tenth Schedule relates back to the time when the acts were done and that it is not effective just from the date of decision. When an elected member writes to the Governor against his own government, it amounts to voluntarily giving up membership of the party. 

Ambit of Election Symbols Order

Sibal argued that Election Symbols Order can be invoked only when the claimant belongs to the same political party and claims to be of a rival group. He relied on Paragraph 15 of the Symbols Order.

So, if a member has voluntarily given up party membership, he can't invoke Paragraph 15. Therefore, the decision regarding disqualification has a great bearing on the Election Commission's powers.

Balance of convenience 

Sibal added that the balance of convenience was in favour of the Uddhav group. He informed the Bench that the Supreme Court on August 22 ordered a status quo on the Brihanmumbai Municipal Corporation elections. There are no elections happening in the near future. He further stated that allowing the ECI to decide Shinde's claim can result in "irreparable damage" to the Uddhav group.

Merger the only defence under tenth schedule

Senior Advocate Dr. Abhishek Manu Singhvi supplemented Sibal's arguments for the Uddhav group. He highlighted that merger with another political party is the only defence under the Tenth Schedule. There is no concept of "split" under the anti-defection law.

"In whatever form the Shiv Sena exists today, they have no claim that they have merged with the BJP", Singhvi said. "You have left the Shiv Sena, but you want the goodwill of Shiv Sena and so you won't merge", he added.

Can Tenth Schedule affect Election Commission's powers? Bench asks

During the hearing, Justice Chandrachud observed :  "What is troubling is, the whole concept of disqualification is in relation to the house. The jurisdiction of the Election Commission is to decide who represents the political party. What happens in the floor of the house is a microcosm of the consequence of elections.That is an area where thought has to be put".

 "Your contention is that because the legislature party is brought under the cloud because of disqualification proceedings, the Election Commission should be interdicted from deciding the non-legislature party..that is an area with a little bit of....", Justice Chandrachud added.

In response, Singhvi referred to the Sadiq Ali case to point out that in 1968, the Election Commission took note of the numbers in the legislature party as well in determining who was the real representative of the party.

"Symbols Order is premised upon a dispute, not on a disqualification petition. It never contemplated the penal consequences of a person being disqualified. So, it is logically prior to the disqualification", Singhvi stated. It was also emphasised that the Symbols Order was made before the tenth schedule was introduced in the Constitution.

Arguments of Counsel representing the Shinde faction

Senior Advocate Neeraj Kishan Kaul, appearing for the Eknath Shinde group, submitted that the Speaker's power is only in relation to the legislature party and that it cannot circumscribe the Election Commission's powers under the Symbols Order. Under Article 324 of the Constitution, the Election Commission of India possesses plenitude of powers to deal with any situation which arises in relation to political parties. Even assuming that the situation is not covered under the Symbols Order, the ECI can invoke its plenary powers under Article 324 to deal with the present situation.

Kaul pointed out that over 1.5 lakh party members have sent their representations to the ECI supporting the Shinde group.

"The genesis of the entire dispute is what happened on the floor of the house. Symbols order predates the tenth schedule. Sadiq Ali decision also predates 10th Schedule. Does the fact that the determination whether or not disqualification is exclusively entrusted to the Speaker, does that denude the ECI of its powers and secondly, does that disqualification impact the ECI powers?", Justice Chandrachud asked.

Kaul replied that the nature of enquiry under 10th schedule and the Symbols Order are different. Speaker's power is only in relation to the majority in the house. "Does the Speaker get into the local party leaders for the enquiry? There is no machinery for that", Kaul submitted.

Even if the other side's arguments are accepted at its highest, the maximum consequence is that the Shinde group members are disqualified from the House but that does not prevent them from approaching the Election Commission in relation to the political party, the senior counsel added.

"Assume for a moment, the person who has moved the EC has been disqualified? Does that disqualification impact the locus of the person and the authority of the EC?", Justice Chandrachud asked at this juncture.

"Till I am disqualified, I am entitled to participate in the proceedings in the house", Kaul submitted.  "My whole case is I have not given up the membership. We represent the overwhelming majority within the party. We have not left the party. So who will decide whether I have voluntarily given up the membership? Until the Speaker decides, how can I be restrained", he argued.

"So you are saying until he is disqualified, the consequences do not attach", Justice Chandrachud observed.

"If at all, the finding of the EC may help the Speaker. But the decision of the Speaker will in no away affect the EC", Kaul stated. He denied that the both the proceedings were intertwined.

"If their arguments are accepted, the Election Commission, a coordinate Constitutional authority, is denuded of all its powers", he said.

CM Thackeray resigned, so lack of confidence in house to be presumed

Senior Advocate Maninder Singh, appearing for the Shinde group, submitted that there was a pre-poll alliance. Uddhav Thackeray resigned as Chief Minister a day before the floor test. So, it has to be presumed that he lost majority. These facts show that there is no prima facie case for the petitioners.

Differences and dissent part of intra-party democracy

Singh further submitted differences and dissent are a part of intra-party democracy. He referred to Paragraph 15 of the Symbols Order to assert that ECI is given the power to decide in relation to rival sections or splinter groups of a political party. The power of the ECI need not be based on a complaint and it can be exercised suo motu as well. 

He pointed out that the term "political party" is not defined under the tenth schedule. The recognition of political party is the sole preserve of the Election Commission. Hence, the decision of the Speaker under the Tenth Schedule regarding "giving up of membership of political party" can only be based on the ECI's decision under the Symbols Order.

Senior Advocate Mahesh Jethmalani, appearing for the Shinde group, submitted that there is no concept of "deemed disqualification". The Governor, while inviting a party to form government, cannot take into account any "potential disqualification" as the primary concern is to ensure that there is a stable government.

Solicitor General Tushar Mehta, appearing for the Maharashtra Governor, submitted that the Election Commission should be allowed to discharge its duties.

"This is a political question and it is not the first time that such a split has happened and to decide which faction is the real party. It is the election commission which is equipped to look into this", SG said. The disqualification will only affect the membership in the legislature party and will not affect the membership in the political party.

Stand of Election Commission

Senior Advocate Arvind P Datar,  appearing for the ECI, submitted that the powers of the ECI and the Speaker are entirely different. If political party is a larger set, legislature party is the subset of members of political party who are now elected and form part of the House.

 Datar submitted that proceedings become parallel when two conditions are met - when both authorities have concurrent jurisdiction and when one of them is inferior to the other.

Datar also pointed out that disqualification under the Tenth Schedule will relate to the membership of the House. Every provision of the Tenth Schedule speaks about the disqualification of the particular member. On the other hand, the Symbols Order is party-specific.

"It is a matter of common sense that a person who has given up the membership will not apply under the Symbols Order...only a person who has not left the party will make that application", Datar submitted.

"ECI is free to decide as to how it tests the majority. ECI takes a compliant, then ask for submission, then evidence, affidavit followed by enquiry. Kindly see my notice, it has nothing to do with the larger issue", he added. The ECI notice makes no reference to the membership of the house.

"As a general rule, whatever happens in the floor of the house will not affect the powers of the ECI. ECI goes by the membership of the political party and not the legislature party", Datar submitted.

Rejoinder by Uddhav group

In rejoinder, Sibal submitted that voluntary giving up of membership of party can take place through acts outside the house. Since split is no longer recognized, there can be no concept of majority or minority in a party. For the purposes of the Tenth Schedule, that is irrelevant. He stressed that Uddhav Thackeray continues to the President of the Shiv Sena party from 2018 to 2023 as per the records of the ECI and Shinde, by his acts, has lost the membership of the party by operation of Paragraph 2 of the Tenth Schedule.

"What the Election Commission is doing is, it says 'I am not concerned about what is happening in the house, even if you have voluntarily given up party membership, even if you are disqualified, I will assume you as a party member'. Election Commission cannot do that", Sibal submitted. Those who are disqualified cannot get a symbol of the party.

Para 15 of the Symbols Order presupposes legitimacy in the context of membership of party and two factions arising out of legitimate membership of party claiming to be real party. Para 15 does not empower Election Commission to disregard the Tenth Schedule. If Election Commission decides in favour of Shinde, it will make the petitions of Uddhav Thackeray infructuous.

As regards the argument of inner-party democracy, Sibal submitted "inner party democracy in the context of the Tenth Schedule does not mean you join hands with the opposition party and topple your government".

After the arguments of the parties, the bench dictated the order dismissing the application.

BACKGROUND

On 23.08.2022, the 3-Judge Bench led by the then Chief Justice of India, N.V. Ramana had referred the issues arising out of the political rift in Shiv Sena to a Constitution Bench. 

The questions of law referred for the consideration of the Constitution Bench are as under -

A. Whether the notice of removal of the speaker restricts him from continuing the disqualification proceedings under Schedule X of the Indian Constitution as held by the Court in Nabam Rebia;

B. Whether a petition under Article 226 and Article 32 lies inviting a decision on a disqualification proceeding by the High Courts or the Supreme Court as the case may be;

C. Can a court hold that a member is deemed to be disqualified by virtue of his/her actions absent a decision by the Speaker?

D. What is the status of proceedings in the House during the pendency of disqualification petitions against the members?

E. If the decision of speaker that a member was incurred disqualification under the Tenth Schedule relates back to the date of the complaint, then what is the status of proceedings that took place during the pendency of the disqualification petition?

F. What is the impact of the removal of Para 3 of the Tenth Schedule? (which omitted "split" in a party as a defence against disqualification proceedings)

G. What is the scope of the power of the Speaker to determine the whip and leader of house of the legislative party?

H. What is the interplay with respect to the provisions of the Tenth Schedule?

I. Are intra-party questions amenable to judicial review? What is the scope of the same?

J. Power of the governor to invite a person to form the government and whether the same is amenable to judicial review?

H. What is the scope of the powers of Election Commission of India with respect to deter an ex parte split within a party.

The decision to refer was taken by the 3-Judge Bench upon consideration of the issues in a following batch of petitions -

• Petition preferred by rebel Shiv Sena leader Eknath Shinde (now the Chief Minister) challenging the disqualification notices issued by the Deputy Speaker and plea filed by Bharat Gogawale and 14 other Shiv Sena MLA's 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 challenging the Maharashtra Governor's direction to the Chief Minister to prove majority of Maha Vikas Aghadi Government.
• 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 assailing the decision of the Maharashtra Governor to invite Eknath Shinde to be the Chief Minister of Maharashtra and challenged the further proceedings of the State's Legislative Assembly held on 03.07.2022 and 04.07.2022 as 'illegal'.
• Petition preferred by 14 MLAs of Uddhav camp challenging the initiation of illegal disqualification proceedings against them under the Tenth Schedule by the newly elected Speaker