Maharashtra Political Crisis Constitution Bench Day #1: SC Refuses to Pause EC Decision on Use of Party Symbol

Hearing petitions arising out of the Shiv Sena split in Maharashtra, a Constitution Bench refused to interfere with the Election Commission’s (EC) power to decide which faction will be permitted to use the party’s bow and arrow symbol. Justices Chandrachud, Shah, Murari, Kohli and Narasimha rejected the Uddhav Thackarey faction’s argument that the rival members could not be allowed to approach the EC as legislators while disqualification proceedings were pending against them. Justice Chandrachud observed orally that a mere reference of the case to a Constitution Bench cannot stop a constitutional body, the EC, from exercising its powers. 

Today’s hearing was historic for the Supreme Court—this case was among three Constitution Bench cases livestreamed on Youtube for the first time. Tune in to a recorded version of the livestream here. 

The Bench spent the first half of the day hearing Senior Advocates Kapil Sibal and Dr. Abhishek Manu Singhvi arguing on behalf of the Thackarey faction. Both argued that the disqualification proceedings are ‘inextricably’ linked to the party symbol issue. Accordingly, they asked the Court to stay the EC’s power to decide who can use the symbol until the Court decides the questions on disqualification. In the second half of the day, the Bench heard lawyers argue against a stay on behalf of the Shinde faction. Read the Shinde Faction’s arguments here. 

BACKGROUND

On June 21st, Shiv Sena party member Mr. Eknath Shinde,  went missing, along with a number of Shiv Sena MLAs. On the same day, Mr. Uddhav Thackeray called an emergency party meeting which the rebel MLAs refused to attend. The Shiv Sena removed Mr. Eknath Shinde as the Legislature-Party leader. Mr. Shinde responded claiming that he had the support of over 40 MLAs, and represented a significant portion of the party. He further said that, with a dwindling group of supporters, Mr. Thackeray was no longer the party’s chosen representative. 

On June 24th, 2022, Mr. Uddhav Thackeray urged the Deputy Speaker to begin disqualification proceedings against the rebel Shiv Sena MLAs, including Mr. Eknath Shinde, for defecting from the Shiv Sena. On the same day, two independent MLAs moved a ‘no confidence’ motion against the Deputy Speaker Mr. Zirwal, stultifying his power to decide on Shinde’s disqualification. 

The next day (June 25th, 2022), Mr. Shinde’s faction of the Shiv Sena challenged the disqualification proceedings before the Supreme Court on two grounds. On June 27th, 2022, a Vacation Bench of the Supreme Court comprising Justices Surya Kant and J.B. Pardiwala issued an unusual Order, staying the disqualification proceedings. 

On June 28th, 2022, the Shinde faction requested the Governor of Maharashtra, Mr. Bhagat Singh Koshyari to direct a floor test in the Assembly. Mr. Koshyari agreed to conduct the floor test on June 30th, 2022. Immediately, the floor test was challenged by the Thackeray faction in the Supreme Court. After four hours of arguments, on June 29th, 2022, the Supreme Court refused to stay the floor test. Chief Minister Uddhav Thackeray resigned within the hour, making way for the Shinde faction to consolidate power. 

The Thackeray faction argued that the Shinde faction’s actions—disregard for the party Whip, appointment of a new Deputy Speaker, call for floor test, and insistence of the Shinde faction’s majority—were all acts of defection. An exception under Para 3 of the Tenth Schedule once stated that splitting within a party with a minimum of one-third of the party members was not defection. However, this exception was repealed in 2003 through the Constitution (Ninety-First Amendment) Act. Meanwhile, the Shinde faction approached the EC to use the party symbol in upcoming local polls. 

In What Capacity Did Mr. Shinde Approach the EC to Use the Shiv Sena Symbol? 

At the outset, Justice Chandrachud asked Mr. Sibal in what capacity Mr. Shinde approached the Election Commission for permission to use the bow and arrow symbol as the ‘real’ Shiv Sena. 

Mr. Sibal responded that the Bench would have to settle whether his rebellion amounts to an offence for which he can be disqualified. Mr. Sibal pointed out that only party members can approach the Election Commission under Part 15 of the Election Symbols (Reservation and Allotment) Order to decide which faction can use the existing party symbol. In this case, when Mr. Shinde moved the EC, disqualification proceedings were already pending against him in the Maharashtra Legislative Assembly. As such, he had no power to approach the EC. Dr. Singhvi echoed this concern, stating that the EC should not be allowed to proceed until the SC settled the pending questions on disqualification. 

Does the EC Have the Power to Determine Which Faction Has Majority in the Assembly?

Dr. Singhvi argued that the Court was not considering the question of defection today-it was scheduled to do so in November. The focused question today was if the EC should use its power to determine who can use the contested symbol in the interim. The ‘balance of convenience’ should be the basis for this decision, he argued. Both Mr. Sibal and Dr. Singhvi argued that the ‘balance of convenience’ tilted in favour of the Thackarey faction. 

Mr. Sibal argued that the reference of the defection case to a Constitution Bench was proof that the Thackarey faction has a prima facie case. He charted out a situation in which the EC allows the Shinde faction to use the party symbol right now, but the SC holds in November that the Shinde faction’s rebellion had disqualified them from the Assembly. In this case, he argued, the Thackarey faction would suffer irreparable damage. 

Justice Chandrachud stated that the Constitution vests the Election Commission with the power to exercise complete control over elections. The mere reference of a case to a Constitution Bench should not strip the EC of its powers. 

Dr. Singhvi stated that the Shinde faction does  not want to associate with the party but wished to continue to use its goodwill. To decide on the party symbol, Dr. Singhvi argued that the EC will have to decide who has a real majority in the State Legislative Assembly. The Tenth Schedule of the Constitution, dealing with defection, does not recognise the possibility of a ‘split’ within a party. Any rebel members are considered disqualified. The question of a ‘real majority’ therefore, Dr. Singhvi argued, is moot. 

Justice Chandrachud pointed out that the concept of a split may be alien to the Tenth Schedule, but is factored into the Election Symbol Rules. The EC may not have power to decide on issues of the legislative assembly, but has absolute power to decide election issues. 

Mr. Sibal stated further that the local polls in Maharashtra were currently paused by Court orders. Since no elections were imminent, there was no urgent need to decide on the use of the party symbol. 

Shinde Faction: We Cannot Be Barred From Approaching EC Until We Are Disqualified

Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, argued that there should not be any adverse consequences for the rebel members until the Court decides that their actions amount to defection. He argued that there was no link between the Speaker’s powers to disqualify under the Tenth Schedule and the EC’s constitutional powers to decide election issues. 

Mr. Kaul stated that the EC has wide plenary powers under Article 324 of the Constitution. The EC will consult local party members and thoroughly investigate the dispute before deciding who has the real majority support of the party. This is an entirely different process from disqualification. One should have no bearing on the other, argued Mr. Kaul. 

The Shinde faction denied that they had defected from the party. Until the Speaker finds otherwise, Mr. Kaul argued that they should not be denied access to the EC. Staying the EC proceedings will denude the powers of an important constitutional body, he argued. 

Senior Advocate Maninder Singh, also representing the Shinde faction, argued that the term ‘political party’ is not defined in the Tenth Schedule on the Speaker’s powers. It is only mentioned in the Election Symbols Order. As such, decisions about party splits and factions is the sole jurisdiction of the EC. This jurisdiction is not subject to any proceedings pending before the Speaker on the Assembly floor. 

Solicitor General Tushar Mehta, representing the Shinda faction, stated that the Speaker’s decision on disqualification will affect the membership of the Assembly, not of the political party, which is a wider unit. Senior Advocate Arvind Datar, representing the Election Commission, agreed with this argument. He stated that the power to disqualify and the power to decide party symbol use have no relation. The Election Commission does not consider Assembly membership at all when deciding on symbol use. The only relevant factor is membership of the political party. 

The path is now clear for the Election Commission to decide which faction can use the bow and arrow symbol in the local polls this year. The Supreme Court will hear arguments on whether the Shinde faction’s rebellion constitutes defection and the powers of the Speaker to disqualify MLAs after the Diwali break in November.