'Are Political Parties Not Supposed To Follow Democratic Principles Like Other Institutions?' Supreme Court Asks In Shiv Sena Hearing

In the Shiv Sena matter, the Supreme Court today asked the Uddhav Thackeray faction if political parties are not supposed to abide by democratic principles the way constitutional institutions do.

"Your party constitution was based on democratic principles. And then you suddenly brought an amendment and created a complete...When we talk of democratic principles in institutions, a question would arise - as a political party, are you also not supposed to follow the principles?" the Chief Justice of India questioned.

In response, Senior Advocate Kapil Sibal, for the Uddhav faction, contended that there is a difference between institutions that discharge political functions and institutions that discharge constitutional functions. He said that while an erroneous political function can be corrected, a wrong decision by a constitutional authority like ECI can seldom be rectified. The senior counsel further underlined that the level of integrity expected from institutions discharging constitutional functions is way higher.

"Institutional integrity is at the heart of a democracy. Defection is a constitutional sin. [But] Now, it is a badge of honor. Already, enough powers have been given to ECI. Give another power (to go into validity of party constitution and ignore them) and see what happens", Sibal commented.

The exchange was in the context of Sibal questioning the ECI's refusal to accept Shiv Sena's Constitution on the ground that it did not provide for internal democracy.

The bench of CJI Kant, Justice Joymalya Bagchi and Justice V Mohana was dealing with the plea 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. Another petition, filed by Uddhav Thackeray, was also listed before the bench, which challenges the ECI decision that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol.

Yesterday, Justice Bagchi had orally observed, on the strength of the Constitution Bench decision in Subhash Desai, that a political party has subsisting control over a legislature party and any decision of the political party would prevail over the will of the majority of the legislature party. 

Today, Sibal contended inter-alia that the ECI had no jurisdiction to question the 2018 party constitution and it erred in "assuming the jurisdiction" and ignoring the constitution while holding in favor of the Shinde faction. In this regard, Sibal relied on a Division Bench judgment of the Delhi High Court, as per which the ECI does not have adjudicatory power with regard to a party's constitution.

"Maximum power they have is of withdrawing recognition. But they assume jurisdiction and decide the matter on the basis of that. This is most unfair. If institutions don't inspire confidence, this is what happens", he averred. 

Sibal further claimed that the Uddhav faction was left in a lurch because the disqualification issue was not timely decided. He recalled that he had urged before the Constitution bench as well that ECI should first decide the disqualification issue, not the election symbol issue, but the plea was rejected.

Justice Bagchi, in response, noted that there were overlapping facts in both issues, but the tests employed by the Speaker (on the disqualification issue) and the ECI (to decide the election symbol issue) differed.

From the Subhash Desai case, the judge observed that voluntarily giving up membership of a party was held not to automatically amount as severance of ties with the party. It was also noted that the Speaker decided the issues on the basis of actions of the Eknath Shinde faction, such as moving of the 31 MLAs to Surat and their not attending party meetings despite notice.

When Sibal highlighted that there were other anti-party activities as well, such as the MLAs' passing of own resolution appointing Eknath Shinde as group leader and Bharat Gogawale as Chief Whip, Justice Bagchi noted that those events took place "after" the filing of disqualification petitions. Sibal however argued that the same did not matter, especially as the Constitution Bench held those actions to be illegal. Differing, Justice Bagchi said that the date did matter and the Constitution Bench did not decide on disqualification. The judge further referred to the Sharad Yadav case, where it was held that the date of filing of disqualification petition would be relevant.

Subsequently, Sibal argued that under law (Section 29A of RP Act), there is no requirement for a party to place on record of the ECI its amended Constitution. He said that only the original constitution is to be placed on record before the ECI, while any subsequent amendments are only to be intimated. Even so, he maintained that in the present case, the 2018 constitution was sent to the poll body along with the Uddhav faction's letter (although the same is denied by ECI).

Sibal also lamented the manner in which the Shinde faction came to power. He highlighted that the ECI disregarded the political party's organizational structure, the Speaker kept the disqualification petitions pending, the facts of the case were covered by precedents, yet the party's symbol was allotted to Shinde faction and virtually everything taken away from the political party. It was stressed that the Shinde government should not have been allowed to be formed.

The senior counsel also remarked that people in power are like a magnet. He underlined that in Shiv Sena's case, initially 31 MLAs defected then the number rose to 39. Certain MPs as well, who were with the Uddhav faction, shifted sides after Shinde became Chief Minister. So to keep disqualification petitions "lingering" is wrong.

Another contention of the Uddhav faction was that the Election Symbols Order does not recognize the concept of a legislature party. On facts, it was also highlighted that both sides had filed their affidavits before the ECI to show the support they enjoyed in the legislative and organizational wings. The Uddhav faction had an overwhelming majority in the organizational wing. Hence, the ECI found it "convenient" to ignore the 2018 constitution and the organizational structure.

Appearance: Senior Advocate Kapil Sibal and Devadatt Kamat (for Uddhav faction); Senior Advocates Neeraj Kishan Kaul and Maninder Singh (for respondents)

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