Supreme Court Allows EC To Decide Who Is ‘Real’ Shiv Sena

"We direct that there would be no stay of the proceedings before the Election Commission," the bench also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha said.

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New Delhi: In a setback for Uddhav Thackeray, the Supreme Court on Tuesday allowed the Election Commission (EC) to go ahead with hearing the Eknath Shinde group’s plea seeking recognition as the ‘real’ Shiv Sena and allocation of the party’s bow-and-arrow poll symbol to it.

Justice D.Y. Chandrachud, heading a constitution bench, rejected the plea of the Thackeray-led faction seeking to restrain the EC from deciding the Shinde group’s claim over who is the “original” Shiv Sena.

“We direct that there would be no stay of the proceedings before the Election Commission,” the bench also comprising Justices M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha said.

According to the Indian Express, Kapil Sibal, appearing for the Uddhav faction, argued that Shinde cannot approach the EC as he has ‘incurred disqualification.’ Referring to his breaking away and forming his own faction earlier in the year, Sibal said that Shinde’s actions amounted to voluntarily “giving up of the party membership under Paragraph 2(1)(a) of the Tenth Schedule”.

Shinde rebelled against Thackeray in June this year, leading to the collapse of the Maha Vikas Aghadi coalition government. Shinde was sworn-in as the chief minister, with the BJP’s outside support. He has claimed that his faction has not resigned from the party but is the “real” Shiv Sena.

Lawyer Abhay Nevagi, writing for The Wire, has argued that though the Shinde faction has been recognised as the Shiv Sena legislature and parliamentary parties in the Maharashtra assembly and parliament, Thackeray remains the party president and therefore will be the “real” faction.

Chief election commissioner (CEC) Rajiv Kumar, reacting to the verdict, said the poll body has a transparent process of the “rule of majority” in place and will apply the same when looking into the case.

“There is a set procedure. That procedure mandates us and we define it in terms of a very transparent process by judging and applying the ‘rule of majority’. We will apply the ‘rule of majority’ whenever we are looking at it. This will be done after reading the exact decision (of SC),” the CEC said when asked about the apex court’s order.

Court arguments

Kapil Sibal said that Shinde is no longer in the party and membership has been given up. “How does the EC hear him then?” he said, referring to the disqualification notice issued against Shinde and some other Shiv Sena MLAs who had rebelled against Thackeray.

Senior advocate Arvind Datar, appearing for the poll panel, said the EC is free to decide who constitutes the aspect of majority.

Solicitor general Tushar Mehta, appearing for Maharashtra governor B.S. Koshiyari, contended the EC is only deciding which faction is the “real” party and so it should be allowed to proceed with Shinde’s plea.

Shinde group’s counsel and senior advocate N.K. Kaul submitted an election symbol is not the property of an MLA and to which faction it belongs has to be decided by the EC, asserting the poll panel cannot be prevented from taking any decision on the issue.

The bench was hearing pending cases related to the political crisis in Maharashtra that began with Shinde group’s revolt against Uddhav Thackeray’s leadership which led to the fall of the three-party Maha Vikas Aghadi government in the state.

The bruising political battle had resulted in a slew of petitions getting filed in the Supreme Court by the rival factions, and the apex court referred those to a five-judge bench on August 23, saying the conflict had raised several constitutional questions related to defection, merger and disqualification.

It had asked the EC not to pass any orders on the Shinde faction’s plea that it be considered the “real” Shiv Sena and granted the party’s poll symbol, the bar which was lifted on Tuesday.

Though the Shinde faction has formed a coalition government with the BJP in Maharashtra and enjoys the support of an overwhelming majority of MLAs who had won on Shiv Sena tickets, the EC cannot recognise it as the original party simply on that basis.

The EC will have to consider the support each faction enjoys in the party’s legislative and organisational wings. In such cases, the poll panel also goes through the party constitution and the list of office bearers submitted to it by the party when it was united.

The top court had said the petitions brought forth important constitutional issues relating to the 10th schedule of the Constitution pertaining to disqualification like the powers of the speaker and the governor, and the scope for judicial review.

It said the proposition of law laid down by the constitution bench in the Nabam Rebia case relating to the 10th schedule stands on a contradictory reasoning which requires “gap filling” to uphold constitutional morality.

Following a political crisis in Arunachal Pradesh in November 2015 when 21 Congress MLAs rebelled against chief minister Nabam Tuki, and a string of events that followed, a five-judge bench of the Supreme Court had unanimously ruled that a state governor’s powers to summon, dissolve and advance an assembly session are within the scope of judicial review.

In Maharashtra’s case, the Supreme Court had asked the constitution bench to look into constitutional issues like whether a notice for removal of the speaker restricts him from continuing to hear and decide disqualification proceedings, if a petition under Article 32 or 226 lies against disqualification proceedings, can a court hold that a member is deemed to be disqualified by virtue of his/her actions and what is the status of proceedings in the legislature pending disqualification petitions against its members.

Articles 32 and 226 relate to powers of the Supreme Court and high courts respectively with regard to a citizen’s right to seek constitutional remedy if their fundamental rights have been infringed.

(With PTI inputs)

Note: Additional details were added to this story after it was published.