Real Shiv Sena row: SC Asks If Maharashtra Speaker's Verdict Is Contrary To Its Judgement

The Supreme Court, which was hearing the case of Shiva Sena (UBT) and Shinde group, has scheduled the matter for further hearing on April 8, writes ETV Bharat's Sumit Saxena.

New Delhi:The Supreme Court on Thursday queried whether the Maharashtra Legislative Assembly Speaker's reliance on the test of legislative majority to decide, which is the real Shiv Sena, contrary to the May 2023, judgment of the apex court. The apex court has also summoned all original documents about the disqualification case hearing from the Speaker’s office.

In the May 2023 Subhash Desai's judgment, the apex court had said that instead of a legislative majority, what is to be considered is the evaluation of the majority in the organisational wings of the political party, an analysis of provisions of the party constitution, or any other appropriate test.

Today, a three-judge bench led by Chief Justice of India DY Chandrachud and comprising justices JB Pardiwala and Manoj Misra was hearing a petition filed by Shiv Sena UBT (Uddhav Balasaheb Thackeray) challenging Maharashtra Assembly Speaker's refusal to disqualify MLAs of Eknath Shinde group.

Senior advocates AM Singhvi, Kapil Sibal and Devdutt Kamat appeared for the Shiv Sena UBT and senior advocates Harish Salve, Mukul Rohatgi and Mahesh Jethmalani, represented the Shinde group. At the outset, Sibal, seeking an early hearing on the case by the apex court, said elections to the Assembly would be held in either October or November of 2024, the court has already given a judgment and notice has been issued and the other side has not filed a reply.

Sibal said the matter should be expeditiously decided otherwise the whole matter will become infructuous. Sibal said the Shinde faction has gone to the High Court and they are trying to send my client back to the High Court and stressed that his client has a constitutional right to come to the apex court.

Sibal contended, “What he (Speaker) said is that legislative majority because they have a legislative majority, they are the party. He also holds that the legislative majority happened on June 21, 2022, when there was no application before the Election Commission. Your lordships know that the party on June 21 was headed by Uddhav Thackeray…he (Speaker) does not accept the 2018 Constitution because it was not filed before the Election Commission”. Sibal said the Speaker had gone by the 1999 Constitution of the Shiv Sena, which nobody had discussed.

Singhvi said Subhash Desai's judgment delivered in May 2023, decided that where there is a question of legislative majority vs organisational majority post-defection, the inherently legislative majority cannot be the basis, as one is counting on legislative majority based on defections and the apex court has made it clear that legislative majority will not apply, however, the Speaker has applied that.

Salve said what your lordships are called upon to decide is not the question of legislative majority, rather documents produced are brazenly fabricated, including documents produced in this court. “A fantastic question is asked to a witness, is it true that you deliberately forged your signatures and signed…..”, said Salve, insisting that the matter should be first examined by the High Court.

“Just see para 144 (Speaker’s order), on page 108, given the above observations and findings, I hold as follows, which faction is the real political party is discernible from the legislative majority…is it not contrary (to the Subhash Desai judgment, 2023)?”, asked the CJI.

Salve said the trouble is with the Constitution they produced, “We said to go by the authentic copy, which is with the Election Commission. They said we have amended the Constitution. At one stage they say we amended it on Date ‘A’ and then amended it on date ‘B’…”.

Salve said somebody has to examine the paper and see which Constitution of Shiv Sena is applicable, the old one or the new one. Rohatgi said there is a recent judgment of the Supreme Court directly on the question of Article 136 vs Article 226, and it says Article 136 is exceptional and Article 226 is the normal route (going to the High Court) added, especially in this case, which involves fraud. The CJI told Rohatgi, that the whole submission of Speaker at para 144 is contrary to the May 2023 judgment of the apex court.

Jethmalani also accused the Uddhav Thackeray faction of forging documents and added that they are applying. The Shiv Sena UBT counsel insisted on hearing the matter. The apex court also summoned the original records placed before the Speaker of the Maharashtra Legislative Assembly while he was hearing the disqualification pleas.

The apex court has scheduled the matter for further hearing in the week commencing on April 8. Shinde faction’s response to Thackeray faction’s petition sought by April 1. On January 22, the Supreme Court issued notice on a plea by Uddhav Thackeray-led Shiv Sena challenging Maharashtra Assembly Speaker Rahul Narwekar’s ruling in favour of the faction led by Chief Minister Eknath Shinde. Thackeray faction sought an interim stay on January 10, the decision of the Speaker.

The plea said the Speaker’s finding that the 2018 leadership structure cannot be taken as the yardstick to determine, which faction represented the political party is perverse and in the teeth of law laid down in Subhash Desai. It added that the Speaker has erred in holding that the party president cannot be taken to represent the will of the political party. “The Speaker has erred in holding that the Shinde faction has led uncontroverted evidence to show that they adhered to the aims and objectives of the Shiv Sena. This is a completely baseless and perverse finding”, said the plea.

Thackeray has challenged the Speaker's decision to reject petitions to disqualify lawmakers, who quit the (then) undivided Shiv Sena to join Shinde's breakaway faction in June. Narwekar had sided with the Shinde faction, basing his decision on the 1999 version of the undivided party's constitution, which did not give Uddhav Thackeray the authority to expel Shinde, meaning he remains a Shiv Sena member.