Uddhav v Shinde | Isn't Speaker's Decision Deciding Real Shiv Sena Based On Legislative Majority Contrary To Our Judgment? Supreme Court Asks

The apex court issued notice in Prabhu's latest petition in January this year. In February, the bench, while deferring the hearing, indicated that the question of maintainability of the petition would be considered first. This came in response to Senior Advocate Harish Salve pointing out that the Eknath Shinde group has approached the Bombay High Court assailing that part of the speaker's order which refused to disqualify Uddhav Sena members, questioning the maintainability of the petition before the apex court.

Earlier this month, Senior Advocate Kapil Sibal requested an urgent hearing for Prabhu's plea. Acceding, Chief Justice Chandrachud posted the matter for consideration on March 7.

Today, Senior Advocate Mukul Rohatgi continued objecting to Uddhav Sena directly approaching the Supreme Court invoking its jurisdiction under Article 32 of the Constitution. Pointing to a recent judgment of the top court, he argued that Article 136 was to be pressed only in exceptional circumstances, while Article 226 presented the 'normal route'. 

However, Sibal stressed the urgency of the matter and the need for a swift resolution, citing that the assembly's term was set to expire in October-November of this year. He pointed to the delay in the respondent's filing of a reply and expressed concerns that if the matter were redirected to the Bombay High Court, it might prolong the case till it finally becomes 'infructuous'.

“In any case, Article 32 is a right,” Sibal insisted, referring to the dispute over the maintainability of Prabhu's writ petition, "When they came under Article 32 for extension of time, Your Lordships entertained their plea. And our Article 32 petition will not be entertained?”

The senior counsel also doubted the speaker's reliance on the 1999 Constitution of the party, which diluted the power from the hands of the party chief, rather than considering the 2018 Constitution that concentrated power in the hands of the party chief.

Adding to the discussion, Senior Advocate AM Singhvi (for petitioner) emphasised the distinction between legislative majority and organisational majority post-defection. He stressed that the court's previous judgment had established that legislative majority post-defection would not necessarily equate to the real majority.

Chief Justice Chandrachud appeared to agree with Singhvi. Reading out from Narwekar's ruling that the real party may be discerned from the legislative majority, the chief justice asked, "Is this not contrary to the judgment? The whole submission is contrary to the judgment of our court."

Referring to Paragraph 144 of the speaker's order, Chief Justice Chandrachud said:

"See Paragraph 144. He says "which faction is the real political party' is discernible from the legislative majority which existed when the rival factions emerged". Is it not contrary to the judgment?"

Eknath Shinde's faction questions authenticity of June 2022 resolution, insists that the judicial outcome will depend on the documents' authenticity

In turn, Senior Advocate Harish Salve, representing the Shinde faction, questioned the authenticity of documents, specifically the resolution of June 2022, which marked a significant turning point in the factional struggle. In June 2022, Eknath Shinde and a group of Sena MLAs rebelled against then Chief Minister Uddhav Thackeray, leading to the passing of a resolution removing Shinde as the leader of the legislature party.

Salve alleged that the documents produced by the petitioners were fabricated, pointing out purported discrepancies in the resolution of June 2022. He stressed that these discrepancies raised fundamental questions that needed to be addressed first before going into the question of law. He insisted, “These are the real questions. Then we get to the law about who did what and the principles to be applied.”

Senior Advocate Mahesh Jethmalani also accused the Uddhav Thackeray faction of forging documents. He informed the court, "We are filing an application, there is a lot of forgery in the matter."

Senior Advocate Devadatt Kamat (for petitioner), however, objected to this contention, arguing that the 'question of forgery' did not arise at all. He submitted that the facts such as Eknath Shinde meeting the Maharashtra governor to stake the claim for the government with the support of Bharatiya Janata Party contrary to the position of Shiv Sena was not disputed at all. However, the speaker did not go into these issues solely on the finding that Shinde group was the 'real Shiv Sena' based on the test of legislative majority, Kamat argued.

Ultimately, acceding to the request made by the lawyers for the petitioners for a hearing, the bench posted the matter to April 8. It also clarified that the question of maintainability has been left open.

Notably, the bench also summoned the original records placed before the speaker of the Maharashtra legislative assembly while he was hearing the disqualification pleas.

Related : Opinion | Maharashtra Speaker's Decision In Shiv Sena Disqualification Case Negates Anti-Defection Law, Contrary To Supreme Court Judgment

Background

This legal dispute is over a January 10 decision of Maharashtra Legislative Assembly Speaker Speaker of the Maharashtra Rahul Narwekar, dismissing the disqualification petitions filed by the Uddhav Thackeray and Eknath Shinde groups. The factions had filed 34 petitions seeking the disqualification of 54 MLAs.

The UBT faction had submitted that the decision of the pakshapramukh is synonymous with the will of the party, which is why if there is a rift in the leadership structure, the pakshapramukh's decision reflects the will of the party. Disagreeing, Speaker Narwekar said that Shinde's faction had an overwhelming majority of 37 of 55 MLAs when rival factions emerged and that he was validly appointed as leader of the party. He said the will of 'party pakshapramukh', at the time, Uddhav Thackeray, cannot be said to be the will of the political party.

On this ground, he held that the Shinde group was the 'real' Shiv Sena, pointing to its legislative majority in the state assembly following the emergency of rival factions. The speaker also recognised the whip appointed by Shinde as the official whip of the Shiv Sena party and held that there was no violation of the whip by the MLAs belonging to the Shinde group.

However, Uddhav Sena has challenged the speaker's ruling stating that it violates the judgment of the Supreme Court in Subhash Desai v. Governor of Maharashtra, by conflating the concept of 'legislature party' with the 'political party'.

This is not the first time that the Uddhav Thackeray-led group has approached the Supreme Court expressing discontent with Speaker Narwekar's conduct.

Last year, a constitution bench refused to restore the Uddhav Thackeray government citing the Shiv Sena leader's resignation without facing a floor test. It had also refrained from adjudicating on the disqualification petitions, handing over the decision to the legislative assembly speaker, to be made within a 'reasonable period'.

Citing the long pendency of this decision, Sunil Prabhu filed a writ petition in the Supreme Court last year, in July. Responding to this allegation, the apex court had set a deadline of December 31 of this year for the disposal of the disqualification pleas. Subsequently, at the speaker's request, an extension was granted, allowing him to complete the task at hand by January 10. Later, Prabhu filed an application questioning the speaker's impartiality in deciding the disqualification petitions against the Eknath Shinde-led faction members, alleging that Chief Minister Shinde had met Speaker Narwekar's at the latter's official residence with three days remaining until the much-awaited verdict.

Case Details

Sunil Prabhu v. Eknath Shinde & Ors. | Special Leave Petition (Civil) No. 1644-1662 of 2024

Click Here To Read/Download Order