The Supreme Court said Thursday it will decide by August 8 whether it needs to refer to a five-judge Constitution Bench the questions raised in a bunch of petitions by rival factions of the Shiv Sena.
The bench of Chief Justice of India N V Ramana and Justices Krishna Murari and Hima Kohli also asked the Election Commission of India (ECI) not to precipitate action until then on the Eknath Shinde faction’s plea seeking recognition as the original Shiv Sena.
The Shinde faction broke away from the Uddhav Thackeray-led Shiv Sena and formed a government in Maharashtra with the BJP after Thackeray resigned as Chief Minister of the Maha Vikas Aghadi government in June this year.
The bench told the ECI that if the Thackeray faction seeks more time to submit its response to the notice issued by the Commission on the Shinde faction’s plea, it should consider granting reasonable adjournment.
Appearing for the Shinde faction, Senior Advocate Harish Salve said one of the issues to be decided is whether disqualification under the Tenth Schedule is incurred only when the Speaker renders a finding that the alleged delinquent member has either voluntarily forsaken membership of the original political party from which he was elected or has voted contrary to a directive of the party.
If the answer to the question is in the affirmative, can a person against whom a disqualification petition is filed, and is pending, continue to act as a member of the House and participate in proceedings of the House, he said.
Another issue is whether a writ can be filed in the High Court or Supreme Court to invite a decision by the court on disqualification proceedings under the Tenth Schedule bypassing the Speaker, Salve said, adding that since the Thackeray faction is saying that the Speaker cannot be trusted, the court will then, in the first instance, have to decide whether there is a disqualification.
Salve said it’s “extremely important” to decide whether a vote by a member contrary to the party directive can be considered an illegality with the consequence that a legislative measure, passed by a support of the majority including those voting against their party’s directive, be considered void.
“Today, suppose a law is passed, one party says vote against it. The member says no, we want to support this, doesn’t matter if we lose our seats. And they go and vote. Is that action illegal? Or is it an action that is perfectly lawful but opens them to disqualification?” Salve said.
To this, the CJI asked, “If that is the case, what is the sanctity of the whips?”
Salve said, “It opens you to disqualification. You lose your seat. You go back to the people… Because there is a reason why the disqualification law is constructed the way it is. It strikes a balance between maintaining people switching parties and action in the House.”
Illustrating this further, he said, “Suppose a person gets elected by corrupt practices. Till his election is set aside, everything he does is lawful. And that’s as bad, if not worse than defection… That’s the structure of our law.”
Salve said “the anti-defection law always has to strike a balance by preventing unwholesome defections, but not becoming an anti-dissent law. Nani Palkhivala had criticised the anti-defection law saying this is an anti-dissent law… A member may say this whip of my party I am not going to obey. And he may vote against it. And may be later on, the party itself, realising it was supporting a wrong cause, may not move against its members. That is not disqualification. That is how this law is understood.”
The CJI asked if a member can totally ignore the political party after getting elected and said if that is so, “it will be a danger to democracy.”
Senior Advocate Kapil Sibal, appearing for the Thackeray faction, said the BMC elections are coming and what the dissidents will try to do is press for orders from the ECI while proceedings in the court remain pending.
“In their petition, they have said they enjoy support of 40 MLAs of Shiv Sena in the Maharashtra Legislative Assembly… and 12 out of 19 Members of Parliament. Therefore, their argument is that they are the political party. Now if 40 MLAs stand disqualified, how will this petition lie? They are the ones who have moved (ECI)… That’s the problem,” he said.
Senior Advocate A M Singhvi, also appearing for the Thackeray camp, said the entire claim of the rebels is based on the support of majority MLAs. But the claim goes if they are disqualified, he said, adding “Where does the balance of convenience lie? Why should it be made irreversible and a fait accompli?”
Appearing for ECI, Senior Advocate Arvind Datar said the poll body is bound by the Representation of the People Act, 1951 and Election Symbols (Reservation and Allotment) Order, 1968 whose regulation 15 says that if any group of members of a political party claim they are the real political party, then the Election Commission is duty-bound to give notice to other people, hear everybody and then decide.
“Election Commission is concerned with the political party which is on a political plane. The Tenth Schedule is concerned with what happens in the Assembly. Suppose the court ultimately holds that all these members are actually disqualified, that doesn’t make a difference as far as the EC is concerned. We are concerned with the main political party,” he said.
The CJI said “the apprehension is you are making these petitions fait accompli because if you recognise the other group that they are the original political party, the entire thing will go”.
Datar said what is happening in ECI can be independent of what is happening in the Assembly. “I am a separate constitutional body. I have to do my duties under the Constitution. Tenth Schedule can’t interdict my responsibility,” he said, adding that the EC has to adjudicate on who has the symbol by adducing evidence.
The bench, however, told Datar that while the EC can receive affidavits etc, it should not precipitate matters till the court takes a decision on the issue of referring it to a Constitution Bench. Datar agreed to this.