Shiv Sena Row | Can We Declare Eknath Shinde Disqualified Today? Supreme Court Asks UBT Group
In the Shiv Sena matter, Justice Joymalya Bagchi of the Supreme Court today asked the Uddhav Thackeray faction whether Eknath Shinde (and other splinter group MLAs) can be consequentially declared disqualified as per the anti-defection law under the Tenth Schedule of the Constitution if the Maharashtra Speaker's order refusing to disqualify them is set aside.
The judge posed to Senior Advocate Devadatt Kamat, appearing along with Senior Advocate Kapil Sibal for the UBT faction, whether the Court can today return a finding which incurs Shinde's disqualification even though the Maharashtra Speaker did not disqualify him and Shinde has been since re-elected pursuant to fresh elections.
"Can we declare him (Shinde) disqualified today? Can we assume the role of Speaker and hold him disqualified?" Justice Bagchi asked.
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.
In the course of the hearing, Justice Bagchi asked whether the Court can assume the jurisdiction of the Speaker. He further drew a parallel between the instant issue and a hypothetical case where disproportionate punishment has been awarded to someone in disciplinary proceedings.
"We can quash the punishment, but can we impose it? We have to remand the matter to the competent authority to take a decision...there is no dispute that Mr Shinde had legislative majority, but the question is, when he assumed the legislative majority, did he remain in the party?" the judge remarked.
Kamat responded to the observation, stating that if the Speaker, who has been equated to an Election Tribunal, passes an order that suffers from perversity, the Court must interfere in exercise of the power of judicial review. He said that the Court can also grant relief in such a situation and highlighted that if the order of the Speaker is set aside, the findings will have a clear effect on the election symbol dispute.
"This court has already taken a view that the final verdict regarding disqualification is only ex post facto recognition. If Tribunal has acted with perversity, your lordships will correct in judicial review. And your lordships can also give relief", Kamat submitted.
Justice Bagchi agreed with the submission that if the approach of the Speaker was not in accordance with law and ignored the principles laid down in Subhash Desai case (by the Constitution bench), the order could be set aside. However, he questioned whether Shinde and other MLAs could be consequentially declared disqualified?
At this point, Kamat categorically stated that in judicial precedents where disqualifications were upheld, the concerned MLAs were declared disqualified.
Story to be updated.
Case : Sunil Prabhu v. Eknath Shinde SLP(C) No. 1644-1662/2024 (and connected case)
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