Supreme Court has decided to hear the plea by Uddhav Thackeray that challenges the decision by Election Commission for allotting Shiv Sena name, symbol to Eknath tomorrow.
The CM Eknath Shinde has however said that they will not stake claim to any property of Shiv Sena, including Sena Bhavan.
At present the Supreme court five-judge Constitution bench is been hearing the batch of plea that deal with the political fallout in Maharashtra which happened after the Shiv Sena split.
During the Court room hearing the Advocate Kapil Sibal told the bench that there are around three prime issues which come in fore in the matter.
The first question was that if the governor swears member of legislative assembly against whom a proceeding under xth schedule is pending , what are his powers in matters of disqualification?
The second pertinent question was whether a constitutional court without referring the matter to the speaker decide that the matter doesn’t have a disputed fact.To further a clarify their point the counsel referred to xth schedule by which the speaker has the power to initiate a disqualification proceeding against a member of party / legislative assembly.
Third important question asked by the counsel was what are the powers of election commission against disqualification, and when a party is split in two fragments then which party should get the symbol under symbols act.
Advocate Kapil Sibal, who represented appearing Uddhav Thackeray faction argued that the decision by court to uphold the Eknath Shinde faction as the official Shiv Sena, can be a precedent for toppling down any government.
Advocate Sibal contended that earlier the Shinde faction had no arguments on an existing split in the party but the ECI has recognized that there is a split.
The minister said that they say they’re the real Shiv sena. He questioned that if they are disqualified they cannot be a minister. Now their disqualification is pending before the court. It is pending before the speaker and they are appointed as the minister?
Advocate Sibal argued that the purpose of the 52nd amendment was to prevent the destabilisation of the government by bulk defection but that was exactly what had happened in the present case. He highlighted that the tenth schedule does not recognize ‘split’ as a defence and the only defence against disqualification is merger with another party. and so even if Shinde faction is in majority, it is immaterial.
The only probable solution that Sibal suggested was to have a law that MLAs who defect will not be entitled to hold any public office for at least the next five years.
The senior lawyer Sibal argued that just by merely claiming majority within the legislative wing, a group cannot claim to be the real party.
Advocate Sibal referred to Para 15 of symbol order says that if there are two factions in political party, then the question of symbol will arise. That is nobody’s case here. How does the majority in legislative assembly become Shivsena?
Another major objection raised by Sibal was that the newly elected Speaker replacing the whip and the legislative party leader of Shiv Sena, appointed by the party chief Uddhav Thackeray which is the charter of the Party chief.
The bench then made its point stating that as per the Parliament the Speaker will act as the Tribunal under the tenth schedule and this was upheld by the Supreme Court in Kihoto Hollohon case.
Justice PS Narasimha who was the part of bench said that the parliamentarians have decided that Speaker will be the tribunal. The court is only interpreting it.
Senior Advocate Sibal, furthering his arguments, remarked-
“The fact is that he has no authority in law to decide upon the whip and the leader of the house. I told them that if they take the symbol and then get disqualified, what happens to the symbol? Do we then get back the symbol? Election commission, on 8th Oct, without hearing either of the party, freezed the symbol of bow and arrow. Hearing is mandatory.”
He also argued that the Shinde faction did not enjoy an overwhelming majority and while they had a majority in two houses, the Thackeray faction also enjoyed majority in two houses.
“What we need to note is that he cannot vote contrary to direction issued by the political party. So it’s the political party, not the legislative party, who issues directions.”
Concluding the arguments,
Sibal stated that the 40 MLAs who joined the Shinde camp had no defence under the tenth schedule. He said-
“They don’t claim that there is a merger. They say they are majority in the legislative party. They claim that they can change the whip, they can change the leader of the house. Eknath Shinde calls himself the leader- because he’s one of 40. What happens to the political party? He is enjoying the fruits of ministership and says I can do whatever – I can join the BJP, I can go to Gauhati. Under what provision of tenth schedule can they have a defence?
The schedule doesn’t give them a defence. You cannot destabilize a government. Bulk defections are destroying the polity of the country and elected governments are being toppled. If such an act is upheld by judicial process you are enabling such future defections which will have far reaching impact on polity of the country.”