Supreme Court Questions Thackeray Faction: Can We Assume Speaker Role to Disqualify Shinde?

The Supreme Court of India on Wednesday raised a pivotal question during the hearing of the Uddhav Thackeray-led faction's challenge to the Election Commission's recognition of the Eknath Shinde group as the real Shiv Sena. The bench, comprising Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice V Mohana, asked whether it could assume the role of the Legislative Assembly Speaker and declare Eknath Shinde and other MLAs disqualified under the anti-defection law. The query underscored the limits of judicial review in political defection cases and the delicate balance between legislative majority and party loyalty.

Background of the Shiv Sena Dispute

The political turmoil in Maharashtra began in June 2022 when Eknath Shinde, along with a majority of Shiv Sena MLAs, broke away from the party led by Uddhav Thackeray. The split led to the fall of the Maha Vikas Aghadi government and Shinde eventually becoming Chief Minister with the support of the BJP. The Election Commission of India (ECI) later recognized the Shinde faction as the "real Shiv Sena" and allotted it the party's name and the 'bow and arrow' symbol, a decision challenged by the Thackeray faction. Simultaneously, disqualification petitions were filed against Shinde and his MLAs before the Maharashtra Speaker, who declined to disqualify them. The Thackeray faction has now appealed both the ECI order and the Speaker's decision before the Supreme Court.

The Court's Crucial Query

During the hearing of Sunil Prabhu's petition challenging the Speaker's refusal to disqualify, Justice Joymalya Bagchi posed a fundamental question to senior advocates Devadatt Kamat and Kapil Sibal , representing the Thackeray faction. "Can we declare him (Eknath Shinde) disqualified today? Can we assume the role of Speaker and hold him disqualified?" Justice Bagchi asked. The bench drew a parallel with disciplinary proceedings where the court can quash a punishment but cannot impose a new one without remanding the matter to the competent authority.

The court observed that while it can set aside an order if found perverse, the jurisdiction to determine disqualification lies primarily with the Speaker under the Tenth Schedule . "We are not the tribunal," Justice Bagchi remarked, emphasizing that the court's role is limited to judicial review . The bench also noted that Shinde and other MLAs have since been re-elected in subsequent elections, raising questions about the retroactive effect of any disqualification order.

Arguments by the Thackeray Faction

Senior Advocate Devadatt Kamat argued that if the Speaker's order is perverse, the court must interfere and can grant relief. He cited a precedent where the Supreme Court itself declared an MLA disqualified after setting aside the Speaker's order. "Your Lordships exercise the power of judicial review ," Kamat submitted. "If the order of the Speaker is perverse, which we will demonstrate, this court can correct it and grant consequential relief."

Kapil Sibal , senior advocate, argued that the Shinde faction's defection was illegitimate and should not be allowed to gain legitimacy over time. "The irony is you base your legitimacy on an illegitimate act. And that illegitimacy continues for years. And you will say to the court now that it has continued for years, therefore give legitimacy. It's like unauthorized construction on government land," Sibal contended. He further submitted that the 39 splinter MLAs had appended the 2018 party constitution to their affidavits before the Speaker, later calling it a "lawyers' mistake," which he said demonstrated bad faith .

Sibal also referred to the Rajendra Singh Rana v. Swami Prasad Maurya case, arguing that a mere meeting with the Governor along with the opposition party amounts to violation of para 2(1)(b) of the Tenth Schedule. Highlighting the MLAs' travel to Surat and Guwahati, followed by their merger with the BJP, Sibal called it a "classic case of defection" that the court must "nip in the bud."

Legal Analysis: Scope of Judicial Review Under Tenth Schedule

The Tenth Schedule of the Constitution, also known as the anti-defection law, vests the power to decide disqualification with the Speaker or Chairman of the House. The Supreme Court has consistently held that judicial review of a Speaker's order is limited to cases of perversity, mala fides, or violation of constitutional principles. In the landmark Kihoto Hollohon case, the court held that the finality of the Speaker's order is subject to judicial review on limited grounds.

The court's query in the present case reflects this tension. While the Thackeray faction argues that the Speaker's decision is perverse and contrary to the Constitution Bench decision in Subhash Desai , the bench appears cautious about substituting its own judgment for that of the Speaker. Justice Bagchi's question – "Can we assume the role of the Speaker and say that he is disqualified?" – indicates that the court may lean towards setting aside the Speaker's order and remanding the matter for fresh consideration, rather than directly imposing disqualification .

Another critical issue is the effect of legislative majority . The bench noted, "There is no dispute that Mr. Shinde had legislative majority , but the question is, when he assumed the legislative majority , did he remain in the party?" This distinction between legislative majority and party membership is central to the anti- defection law . The Thackeray faction contends that the MLAs voluntarily gave up their membership in the Shiv Sena by their actions, while the Shinde faction maintains that they represent the original party.

Impact on Political Defection Law

The Supreme Court's decision in this case could have far-reaching implications for the anti-defection law. If the court were to directly disqualify the Shinde MLAs, it would set a precedent for higher judicial intervention in matters traditionally left to the Speaker. Conversely, if it remands the matter, it may reinforce the Speaker's primary jurisdiction while stressing strict adherence to the law.

Legal experts note that the case also touches on the interpretation of a "split" versus a "merger" under the Tenth Schedule. The Thackeray faction argues that the Shinde group's move was a defection, not a split, since a split requires at least one-third of the party's members to form a separate group – a condition that was met, but the group subsequently merged with the BJP. The court may need to clarify the timeline of events and the validity of the merger.

Conclusion

The hearing is scheduled to continue on Thursday, and the Supreme Court's eventual ruling will be closely watched by the legal and political community. The case not only determines the status of the Shiv Sena but also tests the boundaries of judicial review in political defection disputes. As Justice Bagchi’s pointed questions reveal, the court is grappling with the extent to which it can step into the Speaker's shoes. For now, the Thackeray faction must convince the bench that the Speaker's order was so perverse that nothing short of direct disqualification will suffice. The legal battle over the 'bow and arrow' continues, with the future of Maharashtra's political landscape hanging in the balance.