‘Need clarity on what constitutes majority within a political party’: SC remarks on row over Shiv Sena split

“Law as it stands is ‘Subash Desai’. The control of the political party subsists over the legislature party. Any decision of the political party, validly demonstrated, must prevail over any will, even if of the majority of the legislature party,” Justice Bagchi said.

He was referring to the 2023 SC Constitution bench decision in Subhash Desai vs Governor of Maharashtra which held that a legislative party cannot act independent of the political party, and that the legislative majority is not the relevant factor to determine which faction is the real party.

Justice Bagchi said that the Election Commission of India (ECI) in recognising the Shinde faction should have asked questions about the political party and not the legislative majority.

The CJI said “the only gray area will be what is the meaning, limits of majority in political party? It can be of different types.”

Justice Bagchi said the party constitution will prescribe how it is defined and how the majority is to be understood.

The court said this while hearing Senior Advocate Kapil Sibal for the Shiv Sena (Uddhav Thackeray) group member Sunil Prabhu challenging the state assembly on Speaker’s refusal to disqualify Shinde faction MLAs under the anti-defection law.

Sibal told the court, which commenced final hearing in the matter, that the issue which the ECI had to decide on was the split of a legislature party and not a political party.

The split was only in the legislature party but as per the Subhash Desai judgment, a faction of a legislature party cannot change the Group Leader or the Chief Whip, he contended.

Stressing that it has larger implications for representative democracy, Sibal wondered “Is it not fundamentally against the basic structure of the Constitution that the representative of a party suddenly moves to another party, forms coalition with it, topples the government and doesn’t allow the disqualification proceedings to be decided until the next election?”

The hearing will continue Thursday.