NEW DELHI: In a setback to the Uddhav Thackeray faction, the Supreme Court on Tuesday dismissed the Thackeray camp’s application seeking a stay on proceedings pending before the Election Commission of India (ECI) over Maharashtra CM Eknath Shinde faction’s request to be recognised as the real Shiv Sena, and to use the party symbol “bow and arrow”.
After a marathon hearing of almost five hours, a five-judge bench of the SC headed by Justice DY Chandrachud in their order said, “Having heard the counsel, we direct that there shall be no stay of the proceedings before the ECI.", and allowed the Election Commission to go ahead with the hearing of the Shinde group's plea.
During the hearing, the bench opined that the mere fact of the reference to several constitutional questions pertaining to defection, merger and disqualification would not stall the ECI from taking recourse to its powers under the law.
“Mere fact that the reference has been made does not stall the constitutional authority from taking recourse to its powers under the power of law. One of the issues which have been made is the power of the ECI to decide upon a split in the party but that by itself does not restrain the authority from proceeding ahead if they have the authority under the law,” Justice Chandrachud said.
For the Uddhav faction, Senior Advocate Kapil Sibal contended that ECI can't determine which is the real Shiv Sena till a decision on disqualification of the rebel MLAs and other linked issues that are pending before the constitution bench of the SC is decided. It was also his contention that legislative members of the political party function within the overall control of the party and represent the party.
“Legislative members of the political party function within the overall control of the party. They represent the party. There is an umbilical cord which is linked between the members of the legislature & political party,” Sibal said.
He further added, “I'm a member of the original political party and I’ve been elected on that symbol. I continue to be under the discipline of that party. It has huge consequences. Any government can be thrown out in this fashion. What is the constitution meant for? People go to the governor and throw out the government that is elected by the people. I’ve never heard in the democratic world that an elected government for a period of five years through these fascinations is toppled because we’re discussing some academic issues. See the heart of the matter. Where is democracy going?”
Claiming that the Shinde faction still represented an overwhelming majority within the Shiv Sena, Senior Advocate Neeraj Kishan Kaul for the Shinde faction argued that he was still entitled to approach the ECI. He also added that the election symbol was not the property of the MLA but a decision of the ECI and he had a legal right to use it.
“If at all finding an ECI may help the speaker but nothing that the speaker decides will never impact a member approaching the ECI. So to say that 2 petitions are intertwined and thus await the decisions in the main matter is completely wrong. None has ever questioned the vires of the symbol order, none has ever questioned the power of the ECI. All that has been said here is the scope of the powers of ECI. Till the constitution bench decides the scope of the ECI, this may be Shinde v. Thackeray matter but there would be another matter where there are disqualification of MLAs and other set of people go to the ECI, ECI is denuded of its powers as coordinate constitutional authority to continue and do what it is mandated under the constitution to do because your lordships are seized of the scope of the EC,” Kaul said.
“The moment the question comes “who is the Shiv Sena” the jurisdiction is exclusively with ECI,” Senior Advocate Maninder Singh said.
“Any possible link between disqualification and power of ECI to deal with intra-party dispute has been snapped with the resignation of the then CM,” Senior Advocate Mahesh Jethmalani told the bench.
Contending that the functioning of ECI was completely different from that of the role of the Speaker under the Xth schedule, Senior Advocate Arvind Datar for the poll body contended that ECI was free to decide as to how it tested the majority.
“Whatever happens on the floor of the house is completely independent and does not interdict as to what happens in the house. Disqualification of a legislator from the membership of the Legislature by the Speaker is different from removal of a person from membership of a party,” he further added.
On 23rd August, a 3 judge bench led by the then CJI NV Ramana had referred to 5 judge bench petitions related to the Maharashtra political crisis preferred by rival groups of Shiv Sena that had raised several constitutional questions pertaining to defection, merger and disqualification. The bench had also asked the ECI to not take any action on Shinde’s application for recognition as the real one and allotment of the party's bow and arrow symbol till August 25, 2022.