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In the Shiv Sena dispute, Senior Advocate Dhruv Mehta argued today before the Supreme Court that Eknath Shinde faction MLAs cannot be declared disqualified after the Maharashtra Assembly's term has expired, opposing the Uddhav Thackeray faction's plea to have the MLAs declared disqualified under the anti-defection law.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing the plea filed by Shive Sena (Uddhav Balasaheb Thackeray) 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.

Senior Advocate Dhruv Mehta for the Shinde Sena argued that the appeal against the Speaker's refusal to disqualify has become infructuous following the expiry of the Assembly's term.

Mehta submitted that the respondents have ceased to be members of the Maharashtra Legislative Assembly upon expiry of its term under Article 172 of the Constitution. Consequently, the Court could no longer grant substantive relief disqualifying them from membership of that Assembly.

He said that the Thackeray faction is nevertheless seeking a declaration that the Shinde faction's MLAs stood disqualified under the Tenth Schedule. Their argument, he explained, was that such a declaration would relate back to the alleged acts of defection, undermine the legislative majority on which the ECI had relied, and consequently affect the validity of the Commission's decision recognising the Shinde faction.

Mehta argued that this relief was impermissible because the Speaker's powers under the Tenth Schedule were confined to deciding disqualification petitions concerning members of the House.

Relying on Kihoto Hollohan v. Zachillhu, Mehta argued that the Speaker acts as a tribunal under the Tenth Schedule and the Speaker's jurisdiction is confined to deciding disqualification petitions concerning members of the House. He submitted that the Speaker could not issue a declaration of disqualification after the person had ceased to be a member.

“What is the power of the Speaker? The power of the Speaker is to either accept the petition and disqualify or reject the petition. There is no third power given to the Speaker under the Tenth Schedule,” he argued.

Mehta further argued that the Supreme Court's jurisdiction under Article 136 could not extend beyond the Speaker's jurisdiction. He noted that as per Kihoto Hollohan judgment, there are limited grounds for judicial review of the Speaker's decision, namely, violation of constitutional mandate, breach of natural justice, perversity and mala fides.

“If the source did not have the power, in exercise of review jurisdiction, do you have such a power?” he asked the Court, referring to the Speaker's authority.

He submitted that the normal course where a Speaker's decision suffers from a legal infirmity is to remit the matter to the Speaker, relying on Subhash Desai v. Principal Secretary, Governor of Maharashtra. He distinguished Rajendra Singh Rana v. Swami Prasad Maurya, in which the Supreme Court itself decided the disqualification issue because a remand would have rendered the proceedings infructuous given the proximity of the Assembly's expiry.

Mehta also relied on the Tenth Schedule and the Maharashtra Legislative Assembly Members (Disqualification on Ground of Defection) Rules, 1986, and argued that disqualification proceedings concern sitting members. He distinguished cases involving legislators who resign to evade disqualification, submitting that the present case involved the expiry of the Assembly's term by operation of law, rather than voluntary resignation.

Senior Advocate Maninder Singh, also for the Shinde faction, argued that the Election Commission was justified in relying on the legislative-majority test to determine the real Shiv Sena because the party's failure to hold internal elections made the organisational-majority test unsuitable.

Singh submitted that political parties registered under Section 29A of the Representation of the People Act are required to maintain internal democracy and hold organisational elections. He argued that where office-bearers are nominated rather than elected, the organisational-majority test loses its relevance and cannot be applied mechanically.

Referring to earlier Election Commission decisions, including those concerning the Nationalist Congress Party and the Telugu Desam Party, Singh argued that an organisational majority cannot be treated as decisive when the organisational structure itself lacks democratic legitimacy. He also relied on the principle of “breaking down of the rule” discussed in O.P. Singla.

Singh argued that where office-bearers avoid organisational elections through repeated postponements or nominated ad hoc committees, a majority test within those bodies becomes redundant.

He relied on Paragraphs 6A, 6B and 6C of the Election Symbols (Reservation and Allotment) Order, which deal with recognition of political parties based on electoral performance. He argued that the requirement of internal democracy under Section 29A(5) was relevant to the Commission's exercise of its powers under Paragraph 15 of the Symbols Order, which governs disputes between rival sections of a political party.

Singh highlighted that the Commission had not been asked to deregister the Shiv Sena or decide a general dispute over its internal elections. Rather, the organisational structure was relevant to determining which test could appropriately be applied to resolve the rival factions' claims.

He also argued that the symbol dispute should not remain open indefinitely after the Commission had finally decided it. He opposed review of the ECI's decision on the ground that the factions had contested multiple elections under the ECI's symbol arrangement, and voters had already voted under those symbols.

Also read – Shiv Sena Row | Can We Declare Eknath Shinde Disqualified Today? Supreme Court

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