Shiv Sena Case Hearing | Distinction Between 'Split' & Rebel Group Taking Control Of Party Very Thin, Says Supreme Court

The distinction between a split in Shiv Sena, as alleged by the Uddhav Thackeray-led camp, and the claim of a ‘rebel faction’, as used as a defence by Eknath Shinde and his followers, is very thin, the Supreme Court orally said on Tuesday during the hearing. The Bench, comprising Chief Justice DY Chandrachud, and Justices MR Shah, Krishna Murari, Hima Kohli, and Narasimha, was hearing a gamut of constitutional issues arising out of the political fallout in Maharashtra due to the coup carried out by Shinde’s faction. While hearing the arguments of Shinde faction's lawyer Senior Advocate Neeraj Kishan Kaul, Justice Naramsimha observed : “The defence you would adopt against an allegation of a split would be to say that there was a realignment of the political party and that the [rebel] members belong to the real political party. Those defences are all right, but the principle must be formulated with respect to the decision that the speaker is going to take. It may be a jurisdictional fact. Here the distinction between a split and the case that has been set up, that is, Eknath Shinde actually controls the political party, is very thin.” The judge said this in response to Kaul’s contention that the Eknath Shinde faction had neither merged with any political party nor split from Shiv Sena. According to the Tenth Schedule added by the fifty-second constitutional amendment in 1985, rebel members of a political party is protected from disqualification on the ground of defection if they have merged with another legislature party. There used to be another key exception allowing one-third of the members to ‘split’ away from the original party, but this provision was removed by a subsequent constitutional amendment in 2003. The Uddhav side argued that since the Shinde group has not merged with another party, their activities per se amount to defection, as a split in a party is no longer a valid defence. However, representing the Eknath Shinde-led splinter group, Kaul denied the allegation of a split in Shiv Sena, as argued by Uddhav Thackeray and his cohorts. He said that Shinde’s camp was a ‘rival’ faction within the political party that was eventually recognised as the ‘real’ Shiv Sena by the election commission and allowed the use of the name and the iconic ‘bow and arrow’ election symbol. The speaker, Kaul further said, was “not permitted to embark on an independent inquiry into the issues of the political party, which is a much larger amalgam of taluka leaders, district workers, and political workers”. The Speaker cannot get into the issue of which group is the real political party, while exercising jurisdiction under the tenth schedule, as that is a question to be decided by the Election Commission. He said: “The speaker must not embark on an independent inquiry as to an alleged split in a political party, de hors the issue of disqualification. Insofar as the issue of disqualification is concerned, it’s only a prima facie view the speaker must take. What is being asked today is for the speaker to usurp a power that they do not possess and will get into the politics of the political party…This is the role of the election commission, which is a constitutional authority that is competent to exercise its jurisdiction in this regard.” In response, Justice Narasimha explained that the difficulty with Kaul’s proposition was in the principle of prima facie determination by the speaker. He asked, “What are the contours of this principle? What kind of a prima facie case. What portion of the political party has vouched for one or the other group? How much material is available at this stage?” This is a slippery ground, he added. Besides this, Kaul also argued that internal dissent was the essence of democracy. “In several decisions, this court has held that merely because a member, on being aggrieved by the internal affairs of a party, questioned its leaders or the chief minister, it would not mean that their conduct would fall foul of Paragraph 2(1)(a),” he said, referring to a provision in the Indian anti-defection law permitting defectors to be disqualified for “voluntarily giving up their membership”. The creation of the warring factions, Kaul said while relying on a resolution addressed to the Maharashtra governor, was a culmination of an overwhelming resentment among cadres and workers generated due to the party’s association with coalition partners Indian National Congress and Nationalist Congress Party, which were “ideologically opposed to the Shiv Sena for decades”. Notably, the senior counsel emphasised the interconnectedness of the legislature party and the political party, disputing the other side’s contentions to the contrary. To illustrate, he relied on a ‘deeming fiction’ contained in Paragraph 4 of the Tenth Schedule by virtue of which a merger of two-thirds of a legislature party with another party, was deemed to be taken as a...

Shiv Sena Case Hearing | Distinction Between 'Split' & Rebel Group Taking Control Of Party Very Thin, Says Supreme Court

Awstika Das

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