Hearing the Shiv Sena disqualification case, the Supreme Court asked whether it could itself declare Shinde-faction MLAs disqualified or only set aside the Speaker’s order and remand it.
New Delhi: The Supreme Court on Wednesday, hearing the Uddhav Thackeray-led Shiv Sena’s challenge to the Maharashtra Speaker’s refusal to disqualify Eknath Shinde faction MLAs, asked whether it could itself declare the MLAs disqualified if it found the Speaker’s order legally unsustainable, or whether it could only quash that order and send the matter back Justice Joymalya Bagchi posing the question as Senior Advocate Kapil Sibal concluded his arguments and Senior Advocate Devadatt Kamat took over for the Thackeray faction [Sunil Prabhu v. Eknath Shinde and connected matters].
A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana heard the matter, taken up with the connected challenge to the Election Commission’s recognition of the Shinde faction as the official Shiv Sena.
‘Can we assume the role of the Speaker?’
The most significant exchange of the day went to the scope of the Court’s own remedial power. When Kamat submitted that a declaration of disqualification, if the Court ruled in the Thackeray faction’s favour, would “relate back to the relevant date,” Justice Bagchi pressed the limits of judicial review:
“Can we disqualify him today? Can we assume the role of the Speaker and declare Shinde disqualified?”
Kamat argued that where a Speaker, acting as a tribunal, has decided perversely, the Court in judicial review can not only correct the order but also grant consequential relief. Justice Bagchi drew a careful distinction, indicating the Court had no hesitation about its power to quash but was less certain about substituting its own decision:
“We have no doubt that if the Speaker’s approach is contrary to law, we can set aside the order. But can we, as a consequence, ourselves declare him disqualified? The Speaker is exercising a quasi-judicial power. We have no hesitation in issuing a writ of certiorari, but…”
Illustrating the point, he compared it to a disciplinary proceeding “We can quash the punishment, but can we ourselves impose a punishment? We can certainly remand the matter to the competent authority for a fresh decision.” Kamat responded that there were precedents in which the Court had itself granted the consequential relief of disqualification, and offered to place a chart of such cases before the Bench.
Justice Bagchi also framed what he saw as the central question, accepting the legislative arithmetic while isolating the legal issue:
“There is no dispute that Mr. Shinde had the legislative majority. The primary question is: when he acquired that legislative majority, did he continue to remain the political party?”
Sibal: ‘legitimacy based on an illegitimate act’
Concluding his submissions, Sibal pressed the argument that a legislative majority cannot be equated with the political party for the purposes of the Tenth Schedule, and that the Shinde group had, in effect, tried to convert a defection into legitimacy through the passage of time. He submitted that the faction had disputed the party leadership only after relying on that very leadership to get elected, and characterised the resulting position vividly:
“The irony is that their legitimacy is based on an illegitimate act, and that illegitimacy continues for years… It is like an unauthorised construction on government land the mere passage of time cannot make it lawful.”
Sibal argued that, in the absence of a split, the only defence open to the Shinde MLAs on the relevant date was to claim that they were the political party an issue he said had already been decided against them and that their case rested simply on being the majority of legislators. He pointed to what he called an inconsistency in the Shinde faction’s own pleadings: that its 39 MLAs had each placed the 2018 party Constitution before the Speaker in separate replies, only to later claim, through an additional affidavit, that this was their lawyers’ mistake. “So, did 39 different advocates make the same mistake? That may also be a conspiracy to make a mistake together,” he remarked.
Invoking the sequence of events the MLAs travelling to Surat and then Guwahati, and forming a government with the BJP on June 30 Sibal submitted that “that sequence of events itself speaks volumes,” and that their subsequent vote for Speaker Rahul Narwekar was “a classic case of defection.” Relying on Kihoto Hollohan, the foundational judgment on the anti-defection law, and the Karnataka disqualification case, he urged the Court not to interpret the Tenth Schedule in a way that permits defection, which he called “a constitutional sin.”
The demand to freeze the symbol
Sibal closed by pressing that the Shiv Sena name belonged to the Thackeray faction and that the Shinde faction could not retain the “bow and arrow” symbol, arguing that its continued use created no equity in its favour. In a striking submission, he asked that if the symbol could not be his, it be frozen for both:
“If he cannot have the symbol, neither should I. It should be frozen. One cannot create equity by doing something illegal.”
Kamat: the Speaker could not sit over the party’s structure
Taking over, Kamat developed the argument that the Speaker had impermissibly inquired into the validity of the party’s leadership structure. Political conduct, he submitted, must be understood by reference to the political party, and a faction cannot first engage in conduct prohibited by the Tenth Schedule and then claim that the party’s structure had thereby changed. The claim of legislative majority, he argued, itself ran contrary to Subhash Desai, and the Shinde faction had never put forward any case of a change in the leadership structure of the political party outside the legislature.
Kamat submitted that it was undisputed that the Thackeray side enjoyed the majority in the party’s organisational leadership structure, and that Shinde had become Chief Minister contrary to the wishes of the original party “a matter in the public domain” requiring no evidence. He pointed to the Speaker’s own order, which, he said, recorded that the Speaker would not comment on a particular affidavit because he had already held the Shinde faction to be the political party — reasoning Kamat argued was circular and rendered the inquiry into the leadership structure impermissible. He also submitted that a finding that the disqualification petitions were wrongly decided would have “a definite bearing” on the connected dispute over the party name and symbol.
Background
The proceedings arise from the June 2022 split in the Shiv Sena, when Eknath Shinde led a group of MLAs against then Chief Minister Uddhav Thackeray, bringing down the Maha Vikas Aghadi government and forming a government with the BJP. The rebellion triggered cross-petitions for disqualification under the Tenth Schedule the anti-defection law, which disqualifies legislators who voluntarily give up membership of their party or defy its whip.
In its 2023 Subhash Desai judgment, a Constitution Bench declined to decide the disqualifications itself and remitted them to the Speaker, while laying down the framework he was to apply and holding, among other things, that the floor test the Governor had called was legally unsustainable. In January 2024, Speaker Rahul Narwekar declined to disqualify MLAs of either faction, a decision the Thackeray camp challenged as having rewarded defection by treating the Shinde group’s legislative majority as the will of the party. That challenge, together with the separate challenge to the Election Commission’s February 2023 order recognising the Shinde faction and allotting it the “bow and arrow” symbol, is what the Court is now hearing.
The arguments for the Thackeray faction having concluded, the matter will continue, with the Shinde faction and the Election Commission yet to respond.
For the Thackeray faction: Kapil Sibal and Devadatt Kamat, Sr. Advs.
