Uddhav v Shinde | Isn't Speaker's Decision Deciding Real Shiv Sena Based On Legislative Majority Contrary To Our Judgment? Supreme Court Asks

While hearing Uddhav Sena's challenge against the Maharashtra assembly speaker's refusal to disqualify the members belonging to the Eknath Shinde-led group, the Supreme Court expressed reservations about Speaker Rahul Narwekar using the test of legislative majority to ascertain which faction was the real party. The Supreme Court pondered whether this approach of the speaker contradicted last year's constitution bench judgment in Subhash Desai (2023).A bench of Chief Justice DY Chandrachud, and Justices JB Pardiwala and Manoj Misra was hearing a special leave petition filed by Sunil Prabhu (MLA belonging to Shiv Sena (Uddhav Balasaheb Thackeray)) questioning the decision of Speaker Narwekar on the disqualification issue. On January 10, he held that Eknath Shinde's faction is the 'real' Shiv Sena following the emergence of this rival faction within the party in June 2022. Not only this, but the speaker also refused to disqualify any member belonging to either faction.The apex court issued notice in Prabhu's latest petition in January this year. In February, the bench, while deferring the hearing, indicated that the question of maintainability of the petition would be considered first. This came in response to Senior Advocate Harish Salve pointing out that the Eknath Shinde group has approached the Bombay High Court assailing that part of the speaker's order which refused to disqualify Uddhav Sena members, questioning the maintainability of the petition before the apex court.Earlier this month, Senior Advocate Kapil Sibal requested an urgent hearing for Prabhu's plea. Acceding, Chief Justice Chandrachud posted the matter for consideration on March 7.Today, Senior Advocate Mukul Rohatgi continued objecting to Uddhav Sena directly approaching the Supreme Court invoking its jurisdiction under Article 32 of the Constitution. Pointing to a recent judgment of the top court, he argued that Article 136 was to be pressed only in exceptional circumstances, while Article 226 presented the 'normal route'. However, Sibal stressed the urgency of the matter and the need for a swift resolution, citing that the assembly's term was set to expire in October-November of this year. He pointed to the delay in the respondent's filing of a reply and expressed concerns that if the matter were redirected to the Bombay High Court, it might prolong the case till it finally becomes 'infructuous'.“In any case, Article 32 is a right,” Sibal insisted, referring to the dispute over the maintainability of Prabhu's writ petition, "When they came under Article 32 for extension of time, Your Lordships entertained their plea. And our Article 32 petition will not be entertained?”The senior counsel also doubted the speaker's reliance on the 1999 Constitution of the party, which diluted the power from the hands of the party chief, rather than considering the 2018 Constitution that concentrated power in the hands of the party chief.Adding to the discussion, Senior Advocate AM Singhvi (for petitioner) emphasised the distinction between legislative majority and organisational majority post-defection. He stressed that the court's previous judgment had established that legislative majority post-defection would not necessarily equate to the real majority. Chief Justice Chandrachud appeared to agree with Singhvi. Reading out from Narwekar's ruling that the real party may be discerned from the legislative majority, the chief justice asked, "Is this not contrary to the judgment? The whole submission is contrary to the judgment of our court."Referring to Paragraph 144 of the speaker's order, Chief Justice Chandrachud said:"See Paragraph 144. He says "which faction is the real political party' is discernible from the legislative majority which existed when the rival factions emerged". Is it not contrary to the judgment?"Eknath Shinde's faction questions authenticity of June 2022 resolution, insists that the judicial outcome will depend on the documents' authenticityIn turn, Senior Advocate Harish Salve, representing the Shinde faction, questioned the authenticity of documents, specifically the resolution of June 2022, which marked a significant turning point in the factional struggle. In June 2022, Eknath Shinde and a group of Sena MLAs rebelled against then Chief Minister Uddhav Thackeray, leading to the passing of a resolution removing Shinde as the leader of the legislature party. Salve alleged that the documents produced by the petitioners were fabricated, pointing out purported discrepancies in the resolution of June 2022. He stressed that these discrepancies raised fundamental questions that needed to be addressed first before going into the question of law. He insisted, “These are the real questions. Then we get to the law about who did what and the principles to be applied.”Senior Advocate Mahesh Jethmalani also accused the Uddhav Thackeray faction of forging documents. He informed the court, "We are filing an application, there is a lot of forgery in...

Uddhav v Shinde | Isn't Speaker's Decision Deciding Real Shiv Sena Based On Legislative Majority Contrary To Our Judgment? Supreme Court Asks

Awstika Das

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