The Supreme Court on March 7 asked whether Maharashtra Speaker Rahul Narwekar “contradicted” a Constitution Bench judgment to bank on ‘legislative majority’ as a criterion to declare Chief Minister Eknath Shinde’s faction as the “real” Shiv Sena.
“The Speaker says the ‘real’ political party is discernible from which faction held the legislative majority at the time of the emergence of the rival factions… Is this not contrary to what we had laid down on May 11?” Chief Justice of India D.Y. Chandrachud, heading a three-judge Bench, asked.
Deciding the disqualification petitions filed against Mr. Shinde by rival Uddhav Thackeray under the anti-defection law on January 10, Mr. Narwekar had declared the Chief Minister’s camp as the true party based on a finding that he had commanded the legislative majority at the time Shiv Sena splintered in June 2022.
On May 11, 2023, a Constitution Bench headed by Chief Justice Chandrachud, while placing its trust on Mr. Narwekar’s impartiality as a tribunal to hear and decide the anti-defection proceedings under the Tenth Schedule of the Constitution, had made it clear that the Speaker should not be swayed by the factor of legislative majority.
“The Speaker must not base his decision as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly. This is not a game of numbers, but of something more. The structure of leadership outside the Legislative Assembly is a consideration which is relevant to the determination of this issue,” Chief Justice Chandrachud had observed in the judgment.
The Constitution Bench had differentiated between the legislative wing, composed of the MLAs of the party, and the political wing of the party, made up of the cadre. It had held that the answer to which faction was the real party should be gleaned from the support from the political wing and not the numbers on the legislative side.
“A majority faction of the legislature party cannot be construed as the political party for the purposes of the Tenth Schedule,” the May 11 judgment had noted.
2018 Constitution
Senior advocate Kapil Sibal, A.M. Singhvi and Devadutt Kamat said the Speaker had also stumbled by refusing to accept the 2018 Constitution of the Shiv Sena party, which appointed Mr. Thackeray as president.
“The 2018 Constitution was relied upon by the High Court and the Supreme Court. Nobody disputed it then. But the Speaker said he will not depend on this Constitution as it was not filed with the Election Commission of India. So, he went by a Constitution from 1999 when nobody had even talked about it,” Mr. Sibal submitted.
Mr. Salve countered that the documents produced by the Thackeray camp before the Speaker had been “brazenly fabricated”. He urged that a similar case against the Speaker’s decision of January 10 was pending in the Bombay High Court. He said the Thackeray camp could not file petitions in multiple courts at the same time over the same issue.
However, the Supreme Court decided to go ahead and list the case for further arguments in the week commencing April 8. It also summoned the records of the disqualification proceedings from the Maharashtra Speaker’s office.
