Mumbai (Maharashtra): Five days after the Maharashtra Assembly Speaker Rahul Narwekar said that the Chief Minister Eknath Shinde led Shiv Sena faction was the “real Shiv Sena”, former Chief Minister Uddhav Thackeray and chief of the rival faction on Monday approached the Supreme Court against the Speaker's declaration, sources said. Sources said the Thackeray has filed a petition in the apex court in this regard.
The petition was filed through senior advocate Devdatt Kamat and advocates Nishanth Patil and Rohit Sharma. Thackeray faction has sought interim stay on the January 10 decision of the speaker. Maharashtra Assembly Speaker Rahul Narwekar declared that the Sena faction led by Chief Minister Eknath Shinde was the “real Shiv Sena” as he declared all the 16 MLAs of Shinde-faction of the Shiv Sena including Chief Minister Eknath Shinde as valid. The Speaker's ruling came in reaction to the disqualification petitions filed by Shinde-led Sena and the rival faction led by Uddhav Thackeray against each other's MLAs.
The Uddhav Thackeray plea said the Tenth Schedule is intended to disqualify legislators who act against their political party. “However, if majority of legislators are treated to be the political party, then the members of the actual political party become subject to the will of the majority of legislators. This is totally against the constitutional scheme, and is consequently liable to be set aside”, said the plea.
The plea contended that by treating the majority of legislators as representing the will of the political party, the speaker has in effect equated the legislature party with the political party, which is in the teeth of the law laid down by the apex court in Subhash Desai’s case. "The legislature party is not a legal entity. It is merely a nomenclature given to the group of legislators, elected on the ticket of a political party, who are members of a House for a temporary period”, said the plea.
The plea contended that the Tenth Schedule used to permit as a defence to disqualification, if a group of legislators, provided they comprised at least 1/3rd of their legislature party, acted contrary to the directions of their political party. “This was the defence of ‘Split’ which was provided under Para 3. However, this defence was consciously done away with when Para 3 was omitted from the Tenth Schedule. The impugned judgments, in holding that majority of legislators represent the will of the political party, have in effect revived the defence of split, which had been consciously omitted”, said the plea.
On the aspect of speaker’s decision, the plea said judgments are contrary to this salutary principle of constitutional law, as they allow the evil of defection to be committed unabated, merely by winning over a majority of legislators belonging to the political party. “In fact, rather than punishing the act of defection, the impugned judgments reward the defectors by holding that they comprise the political party”, it said.
“The Speaker has erred in holding that majority legislators of the Shiv Sena represented the will of the Shiv Sena political party. This is in the teeth of Para 168 of Subhash Desai decision, which held that ‘the Speaker must not base their decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly’”, said the plea.
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 absolutely 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 in June, quit the (then) undivided Shiv Sena to join Shinde's breakaway faction. Narwekar had sided with 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.
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