Uddhav vs Shinde : Defection Or Inner Party Dissent? Supreme Court Hears Preliminary Arguments

The Supreme Court on Wednesday heard the preliminary arguments in the cases relating to dispute between Uddhav Thackeray and Eknath Shinde arising out of the rift within the Shiv Sena political party.

After hearing the senior lawyers appearing for both sides for over an hour, the bench adjourned the hearing till tomorrow morning, asking Senior Advocate Harish Salve (who appeared for Eknath Shinde group) to re-draft the written submissions for more clarity.

A bench comprising Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli was hearing petitions filed by petitioners belonging to Eknath Shinde and Uddhav Thackeray factions of Shiv Sena party in relation to disqualification proceedings, election of Speaker, recognition of party whip, floor test for Shinde Government in the Maharashtra assembly and proceedings initiated by the Election Commission of India on request made by the Eknath Shinde-led faction for their recognition as the 'real' Shivsena and their claim over the party's election symbol - the bow and arrow.

A three-judge bench of the Supreme Court on July 20 had observed that the issues arising in the petitions filed in relation to the Shiv Sena rift may have to be referred to a larger bench. CJI NV Ramana orally remarked during the hearing that important constitutional issues arise in the cases which may require adjudication by a larger bench. However, the CJI made it clear that he is not immediately constituting the bench and the parties must first come up with the preliminary issues.

Senior Advocates Kapil Sibal and Dr. AM Singhvi for Uddhav group argued that since the rebellion group violated chief whip, they are disqualified as per tenth schedule. He also submitted that the protection under para 4 of the schedule is not available to them since they did not merge with another political party.

"Here, they (Shinde group) were called for party meeting, they went to Surat and then to Guwahati. They wrote to Dy Speaker, appointed their whip. By conduct they have given up the party membership. They can't claim to be original party. 10th schedule does not allow that," Sibal said.

Senior Advocate Harish Salve appearing for Eknath Shinde argued that there is no split in the political party and rather, there is a dispute over its leadership, which can be said to be an "intra-party" dispute, not falling within the scope of defection.

"If there is an intra-party rebellion within a party against a leader versus a group of people who are leaving the party, the anti-defection law will apply only to those who have given up the membership of political party."

Solicitor General Tushar Mehta appearing for Maharashtra Governor Bhagat Singh Koshyari submitted that the Court must consider whether the 10^th schedule can be "misused" to curb intra-party democracy and to prohibit majority members from exercising their freedom of expression within the party.

Courtroom Exchange

Can Supreme Court decide disqualification proceedings?

Uddhav faction has alleged that the Speaker is "merrily sitting" on the disqualification complaints made by them, even notices have not been issued.

Commenting on this aspect, Salve said,

"In India, there will be always question marks at the Speaker. To say that a Speaker who has been elected by the majority, should be stripped of all authority and this Court should decide the disqualification is unprecedented."

He claimed that the writ petitions are not maintainable.

Here, the CJI pointed out that the Shinde group was the first to approach the Supreme Court challenging the disqualification notices issued by the Dy Speaker.

It was their contention that since a notice for removal of Speaker was pending, that had to be decided first in view of Nabam Rebia decision.

CJI said,

"You came here first. And the entertaining of that petition was contrary to Karnataka judgment where we said High Court has to be approached first… Rightly or wrongly we granted some relief and now you come and say that we can't decide?"

Salve responded that Shinde faction has not given up party membership and somebody has to decide that. However, inviting the Court to decide merely because someone doesn't "trust" the Speaker is not something precedents support.

"If tomorrow disqualification petition is filed before Speaker, and 4 or 5 people send a notice against Speaker saying Speaker can't decide..." the CJI asked.

Salve responded,

"I am not venturing into those issue, in Nabam Rebia Court considered those concerns. Till we have Speaker decide I have given up membership, the question of demolishing my defences will not arise…We are not arguing any split or merger. Our argument is simple, we have not given up membership."

Arguments for Uddhav Faction

Sibal and Singhvi for Uddhav group argued that since the rebellion group violated chief whip, they are disqualified as per tenth schedule. He also submitted that the protection under para 4 of the schedule is not available to them since they did not merge with another political party.

Para 4 permits merger of 2/3^rd members of a party with another party or formation of a new party altogether, Sibal said.

"Now important thing is 2/3rd cannot say they are the original political party. Para 4 (of tenth schedule) does not allow that. What they (Shinde group) are arguing is they are the original party. That is not permissible. They admit before the Election Commission that there is a split," he submitted.

"The only defence available to them is merger and they are not claiming it," Singhvi added.

"According to you, they have to merge with BJP party or they have to form a new party and register with election Commission?" the CJI asked.

"That is the only defence possible," Sibal responded.

He referred to definition of "original political party" in the 10^th schedule to argue that an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member.

He added that since they (Shinde group) are defectors, it will relate back to their conduct when they first gave up party membership. Thus, all subsequent proceedings- election of Speaker and Chief Minister, calling of house, etc., will be illegal.

"So, if all these are illegal, the decisions of the Maharashtra Government are illegal, void ab initio, affecting the destiny of the people. That is the urgency of the matter," Sibal urged.

Referring to the Karnataka Assembly case, he submitted that giving up of party membership can be inferred from conduct.

"Here, they (Shinde group) were called for party meeting, they went to Surat and then to Guwahati. They wrote to Dy Speaker, appointed their whip. By conduct they have given up the party membership. They can't claim to be original party. 10th schedule does not allow that," Sibal said.

He added,

"Their argument is they have the majority. But the majority is not recognised by the tenth schedule. Any form of split is violative of tenth schedule."

He then referred to para 2(1)(b) of tenth schedule which relates to disqualification due to voting in violation of official whip.

"Whip is the link between the political party and the legislature party. The idea of whip being, once you are elected, it is not that the umbilical party connecting you to the political party is not severed… They are linked to the political party and that linkage is not severed merely because they say they are the majority in the legislature."

The counsels also opposed the proceedings initiated by the Election Commission of India on request made by the Eknath Shinde-led faction for their recognition as the 'real' Shivsena.

"Every act of theirs violates Para 2(1)(a), amounts to voluntary giving up party membership. Which is why they say they want to go to ECI. What will ECI do here? If you are disqualified, you cannot go to ECI. ECI cannot decide," Sibal said.

Arguments for Eknath Shinde

Salve appearing for Eknath Shinde on the other hand argued that the anti-defection law is not a weapon for the leaders who has lost the numbers to "lock" their members. "In India we confuse political party with some leaders," he said.

Salve illustrated that if a party member wants change of the Chief Minister, that is not anti-party, that is "intra-party".

"If there are a larger number of MLAs who are not satisfied with the way the Chief Minister is functioning and want a change, why can they not say that there should be fresh leadership contest?"

The CJI then asked Salve whether a member can form a new party saying that the leader did not meet him.

"I am within the party…I am a dissenting member within the party," Salve responded.

He continued,

"I am part of Shiv Sena. Within the party, there has to be democracy. I am saying that there are two groups within the Political Party…It has happened in Congress in 1969. We're all the same Political Party but the question is who is the leader of the Political Party…There is no judgment saying your membership is vacated because you did not turn up for a meeting."

The CJI then inquired what is the purpose of Shinde faction approaching the Election Commission?

Salve responded that after Uddhav's resignation as the CM, there were several political developments and the BMC elections are also approaching.

Senior Advocate Mahesh Jethmalani appearing for Shinde camp argued that the new government came in not because the Chief Minister was defeated in the floor test. It was because he resigned.

"If a Chief Minister refuses to take the floor test, it has to be presumed he does not have majority."

He added that the new Government has elected the Speaker after a contest. "The decision of the Full House cannot be a matter for judicial review. Let the constitutionally and lawfully elected Speaker decide."

Arguments on behalf of Governor

SG Tushar Mehta appearing for Maharashtra Governor submitted that the Court must consider whether the 10^th schedule can be "misused" to curb intra-party democracy and to prohibit majority members from exercising their freedom of expression within the party.

"Whether the tenth schedule can be held to be violate Article 19 if it infringes inner party democracy and freedom of speech within the fold of the party," he asked.

He cited the case of Rajendar Singh Rana, to emphasize that Court cannot decide the issues in the first instance. It can review the Speaker's decision and then record its findings.

"In Manipur case also, the Court gave a time line as Speaker was not deciding. It is not a correct proposition of law to say that this Court can decide the disqualification issue at the first instance."

Earlier, the Supreme Court had said that the Status quo order passed by the Court on July 11, keeping in abeyance the disqualification proceedings, continued to operate.

On June 27, the division bench of Justices Surya Kant and JB Pardiwala had extended the time for the rebel MLAs to file written responses to the Deputy Speaker's disqualification notice till July 12.

Recently, Uddhav Thackeray group of the Shiv Sena had approached the Supreme Court challenging the decision of the Lok Sabha Speaker, Om Birla in approving MP Rahul Shewale of the Eknath Shinde group as the party's floor leader.

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