Supreme Court Rejects Uddhav Group's Plea To Stop Election Commission From Deciding Eknath Shinde's Claim As Real Shiv Sena

The Supreme Court on Tuesday refused to stop the Election Commission of India from deciding the claim of Eknath Shinde group as the real Shiv Sena. A Constitution Bench of the Court dismissed the application for stay filed by the Uddhav Thackeray group after a day long hearing."We direct that there would be no stay of the proceedings before the Election Commission of India. Accordingly, the Interlocutory Application is dismissed", the bench dictated the order.A 5-judge Bench comprising Justices D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha was hearing the interim application moved by the Uddhav Thackeray group to restrain the Election Commission of India from deciding the claim raised by Eknath Shinde group for recognition as the official Shiv Sena party.HIGHLIGHTS FROM THE HEARINGIn what capacity Shinde has moved ECI? Bench asksDuring the hearing, the bench asked Uddhav group's lawyer Senior Advocate Kapil Sibal in what capacity did Shinde approach the Election Commission of India (ECI) with his claim as the real Shiv Sena.Sibal replied that it was the whole issue, as Shinde cannot approach the ECI once he has incurred disqualification. "I challenged the very locus of the person who moved the EC", Sibal submitted.The bench further asked which powers of the ECI have been invoked. Sibal replied that Shinde's claim is on the basis of Election Symbols(Reservation and Allotment) Order and the decision of the Supreme Court in the Sadiq Ali case. He added that when the decision of the Apex Court in Sadiq Ali And Anr. v. Election Commission of India And Anr. came about, the Tenth Schedule was yet to be introduced in the Constitution.He contended that Shinde has incurred disqualification as his various acts/omissions amounted to 'voluntarily giving up membership of the party' under Paragraph 2(1)(a) of the Tenth Schedule. Apart from that he has also violated the party whip as per Paragraph 2(1)(b) of the Tenth Schedule.Does the dispute in relation to the legislature party affect the jurisdiction of Election Commission in relation to the political party?The bench observed that the issue is in relation to the ambit of jurisdiction of the Speaker under the Tenth Schedule and ambit of jurisdiction of the Election Commission with respect to the symbol order. "The political party is a much wider configuration than the legislative unit of that party which consists of the elected members...does the dispute in relation to the former in the legislative unit affect the authority of Election Commission. That is the heart of the matter", Justice Chandrachud observed.Sibal replied that legislature party works within the framework of the political party and that there is an umbilical cord linking them.The bench asked how would disqualification under the tenth schedule have effect on the Symbols order? Sibal replied that allowing a disqualified member to approach the Election Commission can spell doom for democracy."Then any government can be thrown out and they will have their own Speaker who will not decide on disqualification", replied the senior counsel. He highlighted that disqualification under Tenth Schedule relates back to the time when the acts were done and that it is not effective just from the date of decision. When an elected member writes to the Governor against his own government, it amounts to voluntarily giving up membership of the party. Ambit of Election Symbols OrderSibal argued that Election Symbols Order can be invoked only when the claimant belongs to the same political party and claims to be of a rival group. He relied on Paragraph 15 of the Symbols Order.So, if a member has voluntarily given up party membership, he can't invoke Paragraph 15. Therefore, the decision regarding disqualification has a great bearing on the Election Commission's powers.Balance of convenience Sibal added that the balance of convenience was in favour of the Uddhav group. He informed the Bench that the Supreme Court on August 22 ordered a status quo on the Brihanmumbai Municipal Corporation elections. There are no elections happening in the near future. He further stated that allowing the ECI to decide Shinde's claim can result in "irreparable damage" to the Uddhav group.Merger the only defence under tenth scheduleSenior Advocate Dr. Abhishek Manu Singhvi supplemented Sibal's arguments for the Uddhav group. He highlighted that merger with another political party is the only defence under the Tenth Schedule. There is no concept of "split" under the anti-defection law."In whatever form the Shiv Sena exists today, they have no claim that they have merged with the BJP", Singhvi said. "You have left the Shiv Sena, but you want the goodwill of Shiv Sena and so you won't merge", he added.Can Tenth Schedule affect Election Commission's powers? Bench asksDuring the hearing, Justice Chandrachud observed : "What is troubling is, the whole concept of disqualification is in relation to the house. The jurisdiction...

Supreme Court Rejects Uddhav Group's Plea To Stop Election Commission From Deciding Eknath Shinde's Claim As Real Shiv Sena

Sohini Chowdhury

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