New Delhi The Supreme Court on Thursday wondered if the Maharashtra assembly speaker’s decision to hold state chief minister Eknath Shinde’s faction as the “real Shiv Sena” by applying the test of “legislative majority” is tenable, raising a question that lies at the heart of an intriguing legal-political tussle ahead of the 2024 Lok Sabha elections.
“Look at the speaker’s decision. It has gone by the test of legislative majority. Isn’t it contrary to our judgment last year?” a bench led by Chief Justice of India Dhananjaya Y Chandrachud asked.
The bench, which also comprises justices JB Pardiwala and Manoj Misra, recalled the May 2023 Constitution bench judgment in a related case, holding that in case of a vertical split in a party it would be futile to assess which group enjoys a majority in the legislature. The judgment by the five-judge bench had added that other tests such as an evaluation of the majority in the organisational wings of the political party, an analysis of the provisions of the party constitution, or any other appropriate test may come handy in deciding which group represents the real party.
The bench was on Thursday hearing a petition filed by the Shiv Sena (Uddhav Balasaheb Thackeray ) against the assembly speaker’s decision to dismiss disqualification petitions against Shinde and the legislators who supported him during the rebellion in 2022 and holding the chief minister’s faction to be the “real Shiv Sena”.
Senior advocates Kapil Sibal, Abhishek Manu Singhvi and Devadatt Kamat, representing the UBT group, assailed the January 10 judgment by Maharashtra speaker Rahul Narwekar on the ground that his reliance on the legislative majority was in the teeth of the 2023 judgment of the Supreme Court.
“Legislative majority cannot be the basis of determination in cases of a defection. This court also said it in its judgment. This court said that UBT is the leader of the party,” Singhvi emphasised.
At this, the bench questioned the speaker’s decision. “If we look at the findings of the Speaker on the legislative majority, the whole finding is contrary to our judgment,” it told senior counsel Harish Salve, Mukul Rohatgi, Maninder Singh and Mahesh Jethmalani, who were appearing for the Shinde camp.
Responding, Salve said that the questions of law were “miles away” when the UBT group has forged and fabricated crucial documents during the proceedings before the speaker and also before this court. “Documents produced by them on the resolution passed in June 2022 are brazenly fabricated,” he said.
Salve questioned the authenticity of documents, specifically the resolution of June 2022 by which the UBT group sought to remove Shinde as the leader of the legislature party. He added that the signatures on the resolution were forged and the UBT faction interchangeably used working committee and governing body in different fora. Jethmalani, on his part, said that the Shinde faction will move an application citing forgery by the other side.
Rohatgi, also appearing for the Shinde faction, implored the bench to send back the matter to the Bombay high court where the Shiv Sena has already filed a petition against the speaker’s decision not to disqualify MLAs of the UBT faction.
Sibal, however, countered this submission, contending that they have a constitutional right to approach the Supreme Court and the dimension of the matter required the top court to hear it. “The term of the present assembly will end in October-November. So, time is the essence here and I request the court to hear this matter at an earliest date so that it does not become infructuous,” Sibal added.
To this, the bench said that it would hear the matter in detail in the week commencing April 4. The court also called for the original records from the office of the assembly speaker to consider the Shinde faction’s allegations of forgery.
On January 22, the bench issued notices all the 39 MLAs, including Shinde, against whom the disqualification petitions were filed by the Thackeray-camp under the anti-defection law for defying the party whip in the House for the election of the speaker and the floor test in 2022.
The Shiv Sena suffered a vertical split in June 2022 when Shinde and 38 other legislators walked out of the party then led by Uddhav Thackeray and joined hands with the Bharatiya Janata Party (BJP) to form the government. The rebellion brought down the then Maha Vikas Aghadi (MVA) government.
In the petition filed through Thackeray-loyalist and legislator Sunil Prabhu, the UBT group called Narwekar’s January 10 order a “colourable” (it probably meant coloured) exercise of power based on “extraneous and irrelevant” considerations. It added that such a conclusion was “erroneous” and went against the anti-defection law and the top court’s judgment of May last year directing the Speaker not to solely base its decision on the group possessing majority in the House by distinguishing between “legislative party” and “political party”.
By its judgment on May 11, 2023, a Constitution bench invalidated the Maharashtra governor’s decision asking then CM Thackeray to face a floor test last year and flagged a flurry of errors during the political drama that toppled the MVA government, but refused to put Thackeray back in the saddle because he voluntarily resigned instead of facing the trust vote in the assembly.
At the time, the court left it for Narwekar to decide the disqualification petitions pending against both Shinde and Thackeray groups, rejecting Thackeray camp’s plea that the court should decide the disqualification petitions by itself because of the alleged bias of the speaker. By a separate decision on February 17, 2022, the Election Commission ruled that Shinde’s faction would inherit Shiv Sena party’s name and its bow-and-arrow symbol.
