Shiv Sena row: SC refuses to stay EC order, issues notice to Shinde group

Seeking interim protection, Senior Advocates Kapil Sibal, A M Singhvi and Devadutt Kamat, appearing for the Thackeray group, expressed apprehension that the Shinde camp would take over the party’s bank accounts and properties. Sibal said it may even lead to a law and order situation.

“Does the (EC) order contain any direction regarding bank accounts or properties,” the SC asked.

“No, but tomorrow they will say they are the party, they will take over…They are doing that… So no taking over of bank accounts, properties, all those things till the court decides the matter,” Sibal responded.

The CJI, however, said the court can only consider matters which are part of the EC order. “If something is a part of the EC order, we can certainly look at it. This does not form… The EC order is confined to the allotment of a symbol,” he said.

Sibal contended that “recognition of them as the Shiv Sena… is the problem”.

The CJI then responded: “But equally, now that they have succeeded after hearing before the EC, we can’t pass an order which has the effect of staying the order without a hearing…We are entertaining the Special Leave Petition. We can’t stay the order at this stage”.

The senior counsel then prayed for liberty to mention it before the court “if they take precipitatory action as regards other issues”.

“That is independent of the EC order. Ultimately, that’s a contractual relationship within a political party. Any further action is not based on the EC order. Then you have to exhaust your remedies as available in law,” the CJI said.

Singhvi also raised the concern that the Thackeray group members may be disqualified during the pendency of the petition by issuing a whip or a notice. “Tomorrow, if notice is issued asking them to do this or that, then we will be disqualified if we don’t do it. That’s the beauty of it. The EC actually conflates the tenth schedule (anti-defection law) by holding them to be the party. Now they are the party. I have no protection,” he said, urging the court to order status quo on that.

The bench then sought to know if the Shinde camp was planning to issue a notice or whip to them and disqualify them.

Senior Advocates Mahesh Jethmalani and N K Kaul, appearing for the Shinde group, said there was no such plan. They said that in July last year, there was an undertaking between the groups that they would not do anything to precipitate matters. “No, they are already protected. A statement that ‘we would not precipitate the disqualfication’ was already made,” said Jethmalani.

On the Thackeray group’s name, the court said: “Pending further orders, the protection which has been granted in Paragraph 133(IV) of the impugned order of Election Commission dated February 17, 2023, shall continue to remain in operation.”

Paragraph 133(IV) of the EC order said: “In view of the ongoing bye-elections for 205 Chinchwad, and 215 Kasba Peth of Maharashtra Legislative Assembly, the respondent faction, which was allotted the name of ‘Shiv Sena (Uddhav Balasaheb Thackeray)’ and symbol of ‘flaming torch’ as per the interim order dated 10.10.22 of the Constitution in this dispute case, is hereby allowed to retain the said name and symbol till completion of the said bye-elections”.

The court gave the Shinde camp two weeks to file a counter affidavit, followed by one week for Thackeray to file his rejoinder, after which it will hear the case again.

Meanwhile a five-judge Constitution bench of the SC which continued to hear petitions filed by the Thackeray and Shinde factions last year, said the court assuming the role of the Speaker and deciding disqualification proceedings is “dangerous” and will have “very serious ramifications”.

“There are very serious ramifications (if)… we start taking over these functions,” said CJI Chandrachud. “Right or wrong, this is the system which we have now assumed to ourselves as we the people,” he said.

Sibal said the Deputy Speaker, who was in place before the Shinde faction appointed a new Speaker, could take the decision. The CJI, however, said that had been “completely overtaken by events”. The bench will continue to hear the matter on Thursday.