Arguing the Shiv Sena disqualification case, Kapil Sibal told the Supreme Court the Maharashtra Speaker “distorted” the Tenth Schedule by treating the legislative party as the political party.
New Delhi: The Supreme Court on Tuesday resumed hearing the Uddhav Thackeray-led Shiv Sena’s challenge to the Maharashtra Speaker’s refusal to disqualify MLAs of the Eknath Shinde faction under the Tenth Schedule, with Senior Advocate Kapil Sibal arguing that the Speaker had “completely distorted” the anti-defection law by treating the legislative party as though it were the political party itself [Sunil Prabhu v. Eknath Shinde and connected matters SLP(C) No. 1644-1662/2024 ].
A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana heard the matter, taken up alongside the connected challenge to the Election Commission’s decision recognising the Shinde faction as the official Shiv Sena.
‘A legislator cannot himself become the political party’
The thrust of Sibal’s argument was a distinction he pressed repeatedly between the political party and the legislative party which he said the Speaker had impermissibly collapsed. The Tenth Schedule, he submitted, binds legislators to the directions of the political party on whose ticket they were elected, and does not contemplate the legislators themselves being treated as the party:
“A member of the legislative party belongs to a political party but cannot himself become the political party. The Tenth Schedule clearly distinguishes between the political party and the legislative party. It does not contemplate legislators themselves being treated as the political party, which is effectively the conclusion reached by the Speaker.”
On that footing, Sibal argued, a split among legislators cannot automatically be treated as a split in the political party, and the Speaker’s contrary approach treating the legislative majority as if it represented the political party was “contrary to the Tenth Schedule and goes beyond the Speaker’s authority.”
The 2018 Constitution the Speaker set aside
A substantial part of the argument turned on the party’s 2018 Constitution and organisational structure, which Sibal said the Speaker had wrongly discarded in favour of an older 1999 version.
Sibal contended that the Speaker had no jurisdiction under the Tenth Schedule to sit in judgment over the party Constitution at all, and that in any event there was no rival version before him to justify the exercise. He submitted that the Subhash Desai judgment — the Constitution Bench ruling arising from the 2022 Maharashtra crisis had laid down that where rival factions place different party constitutions before the Speaker, the version submitted to the Election Commission before the split must be considered; but here, he said, there were no competing versions, his side having relied on the 2018 Constitution that had been accepted before the factions emerged, with the other side never producing the 1999 document as a rival. The Speaker’s recourse to the 1999 Constitution merely because it was available in the ECI’s records, he argued, was without basis:
“The Speaker himself accepts that the 2018 leadership structure is the relevant one — and then proceeds to disregard it.”
The ‘you took the benefit’ argument
Sibal pressed a point of consistency against the Shinde faction that it could not accept the 2018 structure when it suited it and disown it later. He noted that he had admittedly been the Paksh Pramukh (party chief), and that Shinde had been appointed under that leadership, contested the election under it, and received the party symbol under that very structure:
“Shinde took the benefit of the 2018 Constitution he was elected and functioned under that very structure. You cannot first accept that Constitution when it benefits one side, then discard it, and finally say that legislative majority alone determines who represents the political party.”
He added that this was “not an academic issue,” since Shinde had contested on the party symbol and become a minister under the arrangement the Speaker later chose to disregard.
The sequencing of disqualification and the symbol dispute
Sibal also wove in the argument connecting the disqualification proceedings to the parallel symbol dispute that the two could not be allowed to overtake each other. He submitted that the question of who represents the political party should be decided only after the disqualification petitions are determined, and that the Election Commission’s decision “must follow, not precede, that process.” If the contested MLAs were ultimately disqualified, he argued, their numbers could not be counted in determining legislative strength cutting at the foundation of any majority-based claim.
He further contended that the Speaker had upheld the appointments of the whip and the legislative party leader made by the Shinde side, when the whip had in fact been with the Thackeray faction, which had directed the MLAs not to vote for the Speaker — a direction they defied. Relying on the Speaker’s own reasoning, Sibal argued that the Sadiq Ali principle the Speaker invoked did not apply, since on the relevant date there was no claim of a majority in the party organisation, or even of a split in the political party a claim, he said, that surfaced only later.
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 new government with the BJP. The rebellion triggered cross-petitions seeking the disqualification of MLAs of both factions under the Tenth Schedule the anti-defection law, which provides for the disqualification of legislators who voluntarily give up membership of their party or defy its whip.
In its 2023 Subhash Desai judgment, a Constitution Bench declined to order disqualifications itself and remitted the petitions to the Speaker, while laying down the framework he was to apply. In January 2024, Maharashtra Assembly 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 as the Shiv Sena and allotting it the “bow and arrow” symbol, is what the Court is now hearing.
The hearing will continue on Wednesday.
For the Thackeray faction: Kapil Sibal, Sr. Adv.