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Senior Advocate Kapil Sibal on Tuesday contended before the Supreme Court that Maharashtra Assembly Speaker Rahul Narwekar had illegally conflated the Shiv Sena's legislative party with the political party while refusing to disqualify MLAs of the Eknath Shinde faction under the Tenth Schedule of the Constitution.

Sibal argued that the Tenth Schedule does not contemplate a situation where members of a legislature party become the political party merely because they constitute a majority in the House.

“The Speaker has completely exceeded his jurisdiction under the Tenth Schedule and disregarded the Shiv Sena political party leadership through an exercise that is contrary to the scheme and structure of the Tenth Schedule,” Sibal submitted.

A bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing the petition filed by Uddhav Thackeray faction member Sunil Prabhu challenging the Maharashtra Speaker's refusal to disqualify MLAs of the Eknath Shinde faction under the 10th Schedule.

Sibal argued that the Speaker had fundamentally conflated the political party with the legislature party while deciding the disqualification petitions. He relied on the Supreme Court's 2023 Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra, which held that it is the political party, and not the legislature party, which appoints the whip and the leader.

He argued that the Speaker had wrongly concluded that the majority of legislators represented the political party. “The Speaker has completely exceeded his jurisdiction under the 10th Schedule and disregarded the shifts in our political party leadership through an exercise that is contrary to the 10th Schedule,” Sibal said.

Sibal said this approach was contrary to the Subhash Desai judgment, which clearly distinguished between the political party and the legislature party.

“The legislative party is not the political party. So he can't assume that a rift in the legislative party represents a rift in the political party. It's already decided in Subhash Desai that you can't conflate the two,” he submitted. He argued that there was no principle of law under which the Speaker could treat the legislative party as the political party.

He referred to Paragraph 1(c) of the Tenth Schedule and its definition of the "legislature party", arguing that the provisions do not contemplate members of the legislature becoming the political party.

“The member of a legislative party belongs to a political party. Member of a legislative party cannot be the political party, by definition,” he added, contending that the Tenth Schedule itself distinguishes between a political party and a legislature party and does not contemplate a situation in which members of the legislature party become the political party.

Sibal also challenged the Speaker's decision to rely on the 1999 Constitution of the Shiv Sena after rejecting the 2018 leadership structure. The Speaker had held that the 2018 leadership structure was not in conformity with the party Constitution and did not provide a reliable answer to which faction was the real political party. He therefore proceeded to consider other factors.

Sibal questioned the jurisdiction of the Speaker to undertake this exercise under the Tenth Schedule. He contended that the Speaker could not have relied upon the 1999 Constitution of the Shiv Sena to determine the party's leadership structure.

The Speaker had noted that the 2018 Constitution, which concentrated powers in the hands of the party chief, was not available on the Election Commission's record. He therefore relied on the 1999 Constitution, which had a different distribution of powers within the party.

Sibal questioned the Speaker's jurisdiction to undertake this exercise. “The Speaker says the party constitution is required to be looked into and it is the 1999 constitution since that is the constitution available on the record of the ECI. Where does the Speaker get the jurisdiction to get into all this?” he asked.

He referred to the Supreme Court's judgment in Subhash Desai, which had directed the Speaker to consider the version of the party Constitution submitted to the ECI before rival factions emerged.

“If the rival groups submit two or more versions of the party constitution, the Speaker must consider the version which was submitted to the ECI before the rival factions emerged,” Sibal said, referring to the judgment.

He submitted that there were admittedly no two rival versions of the Constitution in the present case. He added that the 2018 Constitution had been relied upon by both factions and the Supreme Court had held that the version submitted to the ECI with the consent of both factions should be considered.

Sibal further questioned how the Speaker could rely on material from the ECI proceedings if the two proceedings were being treated as separate.

“If you are saying that the ECI proceedings are separate and the disqualification petitions are separate then how can the Speaker bring the ECI proceedings into these proceedings and say that the 1999 Constitution was available on the record of ECI?” he asked.

He submitted that the Speaker had accepted that the 2018 leadership structure was the relevant structure but then disregarded it. “The Speaker without jurisdiction proceeds to compare the political party leadership with the 1999 party constitution and concludes that the leadership structure is not in accordance with the party constitution. How is this part of his jurisdiction?” Sibal submitted.

Sibal also challenged the Speaker's finding that the decision of the Paksh Pramukh could not be treated as the will of the political party.

The Speaker had rejected the Uddhav faction's argument that the decision of Uddhav Thackeray, as Paksh Pramukh, was synonymous with the will of the political party.

Sibal argued that the Speaker had accepted the 2018 leadership structure when it benefited the Shinde faction, but disregarded the same structure while deciding who represented the political party. “Everything that was done with 2018 constitution he comes and gets the benefit of that constitution then. He was elected under that. So you disregard this constitution, give one section the benefit of the constitution, and then he says because of the legislative majority he is the political party,” Sibal said.

He contended that the whip was with the Uddhav faction and that it had issued a whip directing the MLAs not to vote in the election of the Speaker. The Shinde faction MLAs voted against the whip.

The Speaker had accepted that the whip and leader appointed by the Shinde faction were validly appointed. Sibal submitted that this “completely subverted” the scheme of the Tenth Schedule, which seeks to bind legislators to the directions of the political party on whose ticket they were elected.

“10th Schedule differentiates between member of the political party and member of the legislative party. It does not contemplate a situation where the members of the legislative party have become the political party, which is the conclusion that the Speaker has arrived at,” he said.

Sibal also contended that proceedings before the Election Commission for determination of real political party should be consequential upon the outcome of disqualification proceedings before the Speaker.

He said that if a faction approached the ECI claiming to be the political party while its legislators were facing disqualification proceedings, the ECI could decide which faction constituted the political party. However, that determination should follow the decision on the disqualification petitions.

"If those MLAs are ultimately disqualified, their strength in the legislature would have to be disregarded," Sibal submitted. He said this was necessary because the legislative strength of a faction could change depending on the outcome of the disqualification proceedings.

The arguments will continue tomorrow.

Earlier, the Court heard arguments in Uddhav Thackeray's plea challenging the decision of the Election Commission of India that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol.

Case: Sunil Prabhu v. Eknath Shinde SLP(C) No. 1644-1662/2024 (and connected case)

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