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 10th 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 ...

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

Akshita Saxena & Shruti Kakkar

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