Shiv Sena Case Hearing | Immaterial For 10th Schedule Whether Rival Group Has Majority; ECI Decision Has Retroactive Effect : Supreme Court

For the application of anti-defection law (tenth schedule of the Constitution), it does not matter whether the rival group is the minority or majority within the political party if their acts amount to defection, observed the Supreme Court on Wednesday while hearing the arguments of the Eknath Shinde group in the Shiv Sena case.

The Court also remarked that the tenth schedule will operate even in a situation where the splinter group claimed to be the real party. A bench comprising Chief Justice of India DY Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli, and Justice PS Narasimha was hearing the matter.

Senior Advocate Neeraj Kishan Kaul, on behalf of the Eknath Shinde faction, submitted that their argument was never that they split, rather their argument was that they represented the real Shiv Sena and were now recognised as such by the Election Commission of India. Relying on the judgement in Yediyurappa case, he argued that merely because a dissent is expressed within the party, it did not mean that a faction was acting against the party. He stated that there had to be "overt specific acts" such as merger with another party or stating that the MPs did not have faith in the party. While giving examples for such "overt acts", he said–

"In Ravi Naik case, there were photographs of MLAs with opposite parties. These are overt acts. In this case, the whole basis of their argument is that we didn't attend two meetings. In G Vishwanathan, two members were suspended from AIADMK and joined MDMK, and then act of disqualification was moved."

He argued–

"Our case was not that we didn't have faith in the party. Our argument was that you can't continue with INC and NCP coalition. Our case was that our pre poll alliance was with BJP so we can't now form alliance with INC - we have had serious ideological differences with them since the beginning."

As per Kaul, the Governor was not wrong in asking for a floor test as an overwhelming number of MLAs had written to him and expressed that the Ministry no longer enjoyed majority. He argued–

"The Election Commission of India decides on the splinter groups or rival factions. I have never claimed a split. I am claiming a rival faction within the party which is now recognised as Shiv Sena. A symbol can't be split into two. A competent body has said that I represent a rival faction which is now the political party. That decision is exclusively with the Election Commission of India".

For tenth schedule, it is immaterial if the splinter group is the majority

At this juncture, CJI DY Chandrachud remarked–

"Mr.Kaul, for the purposes of the tenth schedule, it makes no difference as to whether the rival faction which has emerged claims to be still be under the fold of the erstwhile political party or forms a new political party in the legislature. It makes no difference at all. Once the tenth schedule attaches a disqualification, the moment you have a rival faction, unless you make out one of the defences, it makes absolutely no difference whether you are saying that we are in the same party....They say that we are the Shiv Sena, there was large discontent because you teamed up with the Indian National Congress and the NCP, when you are ideologically opposed to them, that we had a pre-poll alliance with the BJP. Fair enough. That is the contention. But does that obviate the fact that this is a rival faction within the meaning of the tenth schedule and a split within the meaning of the tenth schedule?"

The CJI added–

"A split does not postulate that the people who are party to a split, leave the party. It may be that people who split sometimes leave the party. The 10th schedule will also operate when a group of persons, whether minority or majority, say that we belong to the same party. Though you constantly say that the Eknath Shinde faction was the majority and the Uddhav Thackeray faction represented the minority, it makes no difference to the application of the 10th schedule as to who remains in the minority."

Kaul, furthering his arguments, stated that there was no distinction between legislature party and political party and that the legislature party had the authority of the political party. He added- 

"Their argument is in the teeth of Kihoto decision because ultimately under para 6 of the tenth schedule, the Speaker is the sole constitutional authority to decide the issue of disqualification. Your lordships have been asked to bypass the entire constitutional machinery. These are coordinate constitutional authorities vested with some jurisdiction. Their decisions attain finality. Without the speaker exercising his jurisdiction, how can the court say that an MLA is to be disqualified? It's like annulling the mandate of people. See the danger- if such MLAs against whom disqualification is pending are prevented to participate, it would open up serious possibilities of misuse of tenth schedule. The consequences are disastrous. Constituencies go unrepresented only because disqualification proceedings are pending?"

Kaul reiterated that the Shinde faction never claimed to be a new political party, but as a faction, represented the recognised political party. He added–

"This happened in Yediyurappa case. Supreme Court held that they didn't say they lost faith in the political party- they said that they lost faith in the CM. We never said that Shivsena shouldn't form the government. We're just saying that we don't want to go with the MVA, our ideologies are at loggerheads."

ECI decision may not have retrospective effect, but has retroactive effect

Regarding the latest decision of the Election Commission of India to recognize Shinde group as the official Shiv Sena, CJI remarked :

"The order of the Election Commission is prospective. Then we'll have to hold that it doesn't date back to defiance of whip. Once this is recognized as the political party,. then para 2(1)(b) will also not operate. Once your party is recognized as the political party, then where is the question of defiance of the whip. Willy nilly it will impact. The declaration of the Election Commission will not be retrospective, but it will certainly have a retroactive effect in the sense that then there cannot be defiance of the whip. Otherwise it will be anomalous."

Was Governor right in inviting Shinde to form Government?

CJI DY Chandrachud also asked if as a matter of propriety, should the governor have invited Eknath Shinde to form the government. "Suppose the interim order was not passed on 27th and say the speaker had disqualified the persons, would the Governor still been justified in calling a trust vote?"

To this, Kaul responded that it could not be a "headless government" and highlighted that Uddhav himself resigned without facing the test. He also argued that the Court cannot review the Governor's exercise of discretion merely on the ground that a different view is possible.

During the discussion, CJI said, "They(Uddhav side) are right to this extent that the request to swear in Shinde as the Chief Minister and the opportunity given to him to prove his majority - came into being only because the Speaker couldn't disqualify Shinde. Because if he had disqualified him, then all the 39 would have gone. With the 39 going out, the composition of government also changes".

"These are all hypothetical assumptions", was Kaul's reply.

"Not exactly hypothetical. Because you know what was happening and what would have happened ", CJI replied with a smile.

Kaul concluded his arguments of the day by stating that apart from the 39 MLAs who had lost confidence, even 13 MLAs who were from MVA abstained from voting. He said–

"Your own people were not there to support your government! That's why this number comes to 99. 13 from MVA abstained. Because you had lost the support. It's wrong to say that Shinde wouldn't have gotten support."

The hearing will continue today.

Case Title: Subhash Desai v. Principal Secretary, Governor of Maharashtra And Ors. WP(C) No. 493/2022

Previous day's hearing :

Shiv Sena Case Hearing | If Some MLAs In A Political Party Oppose Coalition After Forming Govt, They Will Attract Disqualification : Supreme Court

Shiv Sena Case | Uddhav Side Urges Supreme Court To Restore Status Quo Ante As On June 27, 2022