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Synopsis

Uddhav Thackeray-led Shiv Sena on Monday approached the Supreme Court challenging the Maharashtra Assembly Speaker's decision of January 10, 2024 dismissing its disqualification petition filed against Chief Minister Eknath Shinde and other MLAs.

The party questioned the Speaker's decision, which "erroneously" holds that the 2018 leadership structure cannot be relied upon as it purportedly does not conform with the provisions of the Shiv Sena's Constitution.

Claiming the Speaker's decisions as "unlawful and perverse", it claimed, "All impugned decisions are premised on a common finding that the majority of legislators represented the will of the political party, and therefore, they are not liable for disqualification. This amounts to a complete inversion of the Tenth Schedule". 

It contended that the decision by the Speaker was against the Supreme Court's judgment in 'Subhash Desai Vs Governor of Maharashtra' (2022), as it conflated the concept of ‘legislature party’ with the ‘political party’ and held that since the faction led by Eknath Shinde has a ‘legislative majority’, the same has to be considered as the ‘real political party’.

"The order is a complete colourable exercise of power and is based on extraneous and irrelevant considerations. The Speaker has relied upon ‘legislative majority’ to determine ‘who is the real political party’. This is in the teeth of the judgment of this Court in Subhash Desai," the plea filed by their leader Sunil Prabhu said.

The petition filed through advocate Nishanth Patil contended that the complete perversity is evident from the fact that while deciding disqualification petitions, the Speaker has not even considered the main ground for seeking disqualifications like Shinde met the Governor, and took oath as Chief Minister with support of the BJP on June 30, 2022, and all the respondent MLAs supported this decision. 

"This act by itself amounted to voluntarily giving up membership of the political party under Para 2(1)(a), as held by the Constitution Bench in Rajendra Singh Rana Vs Swami Prasad Maurya, (2007). This argument has not been dealt with by the Speaker, although it was specifically raised and argued," it said.

"It is settled law that legislators cannot enter into political alliances de hors and contrary to the political alliance of which their political party is a member. This is precisely what the Tenth Schedule seeks to prevent and punish," the plea said.

It further stated that despite the admitted position that Shiv Sena political party was in a post-poll alliance with the INC and the NCP (called the Maha Vikas Aghadi), of which the respondent MLAs were a part 2019 till the impugned acts in June, 2022, they have been permitted to get away with revolting against that alliance and forging an alliance with the opposition party (BJP), through a perverse exercise of non-consideration of the main ground for disqualification.  

"There is no consideration of the fact that the respondents’ collusion with the BJP is evident from the undisputed fact that Eknath Shinde became Chief Minister with support of the BJP. Further, there is no consideration of admissions made by the respondents in their pleadings and their cross-examination that they were in BJP ruled states of Gujarat and Assam from 21st June, 2022 onwards," it said.

The special leave petition also claimed that the Speaker has failed to appreciate that the Shiv Sena Party Constitution has been amended in the years 2013 and 2018.

"Merely because the Election Commission of India may not have categorically taken the amended Constitutions on record, does not imply that amendments to the Constitution were not carried out. Under the Shiv Sena Party Constitution, the Rashtriya Karyakarini is authorised to amend the party Constitution. The amendment of party Constitution is not dependent on the Election Commission taking the same on its record," it said.

"The Speaker has erred in holding that the Tenth Schedule cannot be used to enforce party discipline. The Speaker has failed to appreciate that the respondent legislators did not vent their alleged grievances in any party forum. They simply colluded with the opposition BJP to topple the elected Government in Maharashtra. The Respondents’ actions were not intra-party dissent, but clear defection," the plea said.

It also claimed that the Speaker has erred in holding that the party president cannot be taken to represent the will of the political party. 

The plea also contended that the Speaker's judgments are contrary to the 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," the plea said.

Case Title: Sunil Prabhu Etc Vs Eknath Shinde Etc