If Eknath Shinde Found To Have Defected, Basis For ECI Recognition Goes : ShivSena UBT To Supreme Court

In the Shiv Sena matter, the Uddhav Balasaheb Thackeray (UBT) party today argued before the Supreme Court that the official bow-and-arrow symbol should be allotted to it, else the same should be frozen. If the Uddhav side cannot have it, so shouldn't the Eknath Shinde faction, UBT said. 

Senior Advocate Devadatt Kamat, for ShivSena (UBT), contended Eknath Shinde and his followers are continuing to reap benefits of their defection by retaining the official symbol. He argued that the symbol was granted to the Shinde faction on the basis of an erroneous reliance on the test of legislative majority. As the Speaker refused to decide the disqualification petitions in time,  the party symbol went to the splinter group. 

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing 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 asked whether the Court can today declare Shinde and associates disqualified under the Tenth Schedule of the Constitution if the Speaker's decision is found to be unsustainable, or should it be remanded back.

Today, Kamat began by responding to Justice Bagchi's query. He contended that the jurisdiction a court exercises while dealing with the order of a Speaker under 10th Schedule is different from the jurisdiction exercised in cases such as disciplinary proceedings. "There is no scope for the Speaker as the adjudicator as far as punishment or penalty is concerned. Disqualification is by operation of law", the senior counsel submitted. 

He further averred that the intent behind the 10th Schedule is that the fruits of defection be not enjoyed by the defector and they lose their membership. "In this case, they are already enjoying their fruits of defection because the matter could not be heard in a particular time. We are not blaming anybody. But today, by virtue of the matter not being heard, they are still reaping the benefits of defection because the Symbols Order today stands only by virtue of the legislative majority test", Kamat said.

Hearing him, Justice Bagchi commented, "There are two problems - disqualified from what? The House. It does not exist(since the term of the House got over in 2024). Disqualified by whom? The Speaker. Who does not exist." In response, Kamat stated that even if its consequence cannot be given effect to, a legal declaration that the MLAs lost membership of the House from the date when defection was committed is significant. He submitted that the declaration of disqualification relates back to the time when the defection was allegedly committed(in June 2022). Such a declaration will have a bearing on the ECI's decision of 2023 in recognising the Shinde side as the official ShivSena.

He contended that the Court is not denuded of its power to decide whether Shinde and others committed defection, and therefore incurred disqualification, or not. 

CJI Kant noted at this point that there cannot be a doubt about the court's power to decide. Justice Bagchi, on his part, added that there would be two relevant factors - one, the power to disqualify having been vested in an authority as high as the Speaker under the Constitution, and the relation of the disqualification to a status (MLA-ship) which is transient. 

CJI Kant further observed that even if the test of legislative majority (as relied upon by the Speaker) is held to be invalid/deficient, the Speaker and the parties will have to be given an opportunity to establish their case. Kamat however said that all parties are represented before the court and it may hear them to decide the disqualification once and for all.

He also referred to certain judicial precedents to show that the Supreme Court and/or the High Court can disqualify MLAs for defection if the facts are made out. In the said cases, the High Courts quashed the orders of the Speaker and declared the persons who defected 'disqualified'. From Rajendra Singh Rana v. Swami Prasad Maurya (BSP split case), the senior counsel referred to the Supreme Court's comment that the Court cannot allow emasculation of the 10th Schedule by the Speaker. He emphasized that in some cases where the Speaker had not taken timely decisions on disqualification, the Supreme Court had returned a finding itself at the first instance. 

"Conflate it with our case. What are we saying? The fruits of defection they are enjoying today is the symbol. And the symbol rests on the so-called legislative majority. We are only urging your lordships to decide this issue once and for all - that whether they have committed defection or not? if they have committed defection, one of the major grounds on which the ECI has awarded the symbol goes." 

Kamat also made submissions on the ECI's decision to award the party symbol to the Shinde faction. He highlighted that the Constitution Bench in Subhash Desai case "abhorred" the application of test of legislative majority while disqualification proceedings are concurrently going on. Therefore, the sole limb on which the ECI order rested is negated. 

He further contended that in all the cases upto the Shiv Sena case, the ECI applied both the organizational majority test and the legislative majority test simultaneously. In no case was one test given preference over the other. 

Apprehending a jurisdiction question from the bench, Kamat also submitted that the election symbol issue need not be sent back to the ECI and the same can be decided by the Court itself. He referred to a judgment to highlight that in a previous case, the Court had held the ECI's decision to be akin to a Tribunal's. He claimed that the election symbol was allotted to one party after adjudication in that case. 

Kamat further averred that even as per Law Commission's 255th report, the ECI has no jurisdiction to go into the qustion of validity of a party's constitiution under Para 15 of the Election Symbol Order. It was stressed that Shinde faction did not make any pleading in its para 15 petition before ECI about the 2018 constitution being undemocratic, yet the ECI went into the issue. 

It was also contended that political decisions must await settling of party structure when a dispute arises, and a splinter group, instead of jumping to the other side, must first raise the issue at intra-party forum. If the intra-party exercise fails, the group may go to the ECI and seek a decision. 

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

Previous reports :

Shiv Sena Row | Can We Declare Eknath Shinde Disqualified Today? Supreme Court Asks UBT Group