Shiv Sena Case Hearing | Distinction Between 'Split' & Rebel Group Taking Control Of Party Very Thin, Says Supreme Court

“The defence you would adopt against an allegation of a split would be to say that there was a realignment of the political party and that the [rebel] members belong to the real political party. Those defences are all right, but the principle must be formulated with respect to the decision that the speaker is going to take. It may be a jurisdictional fact. Here the distinction between a split and the case that has been set up, that is, Eknath Shinde actually controls the political party, is very thin.”

The  judge said this in response to Kaul’s contention that the Eknath Shinde faction had neither merged with any political party nor split from Shiv Sena. According to the Tenth Schedule added by the fifty-second constitutional amendment in 1985,  rebel members of a political party is protected from disqualification on the ground of defection if they have merged with another legislature party. There used to be another key exception allowing one-third of the members to ‘split’ away from the original party, but this provision was removed by a subsequent constitutional amendment in 2003. The Uddhav side argued that since the Shinde group has not merged with another party, their activities per se amount to defection, as a split in a party is no longer a valid defence.

However, representing the Eknath Shinde-led splinter group, Kaul denied the allegation of a split in Shiv Sena, as argued by Uddhav Thackeray and his cohorts. He said that Shinde’s camp was a ‘rival’ faction within the political party that was eventually recognised as the ‘real’ Shiv Sena by the election commission and allowed the use of the name and the iconic ‘bow and arrow’ election symbol.

The speaker, Kaul further said, was “not permitted to embark on an independent inquiry into the issues of the political party, which is a much larger amalgam of taluka leaders, district workers, and political workers”. The Speaker cannot get into the issue of which group is the real political party, while exercising jurisdiction under the tenth schedule, as that is a question to be decided by the Election Commission.  He said:

“The speaker must not embark on an independent inquiry as to an alleged split in a political party, de hors the issue of disqualification. Insofar as the issue of disqualification is concerned, it’s only a prima facie view the speaker must take. What is being asked today is for the speaker to usurp a power that they do not possess and will get into the politics of the political party…This is the role of the election commission, which is a constitutional authority that is competent to exercise its jurisdiction in this regard.”

In response, Justice Narasimha explained that the difficulty with Kaul’s proposition was in the principle of prima facie determination by the speaker. He asked, “What are the contours of this principle? What kind of a prima facie case. What portion of the political party has vouched for one or the other group? How much material is available at this stage?” This is a slippery ground, he added.

Besides this, Kaul also argued that internal dissent was the essence of democracy. “In several decisions, this court has held that merely because a member, on being aggrieved by the internal affairs of a party, questioned its leaders or the chief minister, it would not mean that their conduct would fall foul of Paragraph 2(1)(a),” he said, referring to a provision in the Indian anti-defection law permitting defectors to be disqualified for “voluntarily giving up their membership”. The creation of the warring factions, Kaul said while relying on a resolution addressed to the Maharashtra governor, was a culmination of an overwhelming resentment among cadres and workers generated due to the party’s association with coalition partners Indian National Congress and Nationalist Congress Party, which were “ideologically opposed to the Shiv Sena for decades”.

Notably, the senior counsel emphasised the interconnectedness of the legislature party and the political party, disputing the other side’s contentions to the contrary. To illustrate, he relied on a ‘deeming fiction’ contained in Paragraph 4 of the Tenth Schedule by virtue of which a merger of two-thirds of a legislature party with another party, was deemed to be taken as a merger of the political party as well. “This is because the two cannot be segregated. They are conjoined, integrally and organically connected, and each influences the other.”

Finally, Kaul alleged that the opposite side had invited the top court to ‘bypass’ the entire constitutional machinery of constitutional authorities and decide the disqualification petitions. “The election commission, the speaker, and the governor – three coordinate and competent constitutional authorities that the Supreme Court is being asked to bypass. This is contrary to all the decisions of this court.”

The Bench also heard the brief submissions made by senior advocate Harish Salve by way of a rejoinder. Salve argued that the top court has shown its disinclination to invoke the Tenth Schedule where there were ‘sizeable’ breakaways since the law was an anti-defection and not an anti-dissent law. “The right of the party members to dissent must be balanced,” he said. In defence of the Maharashtra governor calling for a vote of confidence, following which Thackeray had tendered his resignation, the senior counsel added, “It has been firmly laid down by this court that floor tests are to be conducted not in the Raj Bhavan, but in the assembly. Whenever there is a question mark on the ability of the chief minister to command the confidence of the House, the governor must call for a vote of confidence. Your Lordships have said let democracy play out on the floor of the house.”

In conclusion, Salve cautioned that accepting the petitioners’ prayers would amount to transgressing into an entirely political field. “The journey that you are being asked to embark on is to speculate on what would have happened if the matter were to be put to a vote of confidence.”

Case Title

Subhash Desai v. Principal Secretary, Governor of Maharashtra & Ors. | WP(C) No. 493/2022

Reports of previous hearings : 

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

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

Shiv Sena Crisis : Will Uddhav Thackeray's Decision To Resign Before Floor Test Become Crucial In Supreme Court Case?

Shiv Sena Crisis | 'I Stand Here Not Just For This Case, But For Protection Of Constitutional Processes' : Sr Adv Kapil Sibal To Supreme Court

Shiv Sena Case | How Can We Take Over Speaker's Functions? Supreme Court To Uddhav Side

Shiv Sena Crisis | Legislative Party Cannot Act Independent Of Political Party: Thackeray Faction To Supreme Court

Shiv Sena Case | What Is The Ultimate Relief Court Can Grant? Supreme Court Asks Thackeray Faction

Shiv Sena Case | Approving Shinde Faction Will Enable Future Bulk Defections, Any Govt Can Be Toppled : Kapil Sibal In Supreme Court

Shivsena Crisis | Political Waters Take Different Turns, Not For Court To Speculate: Senior Advocate Harish Salve To Supreme Court