Friends, a few days back I wrote on Election Commission (EC) declaring the group led by Eknath Shinde is Shiv Sena and restored the symbol of Bow and arrow to them. Whereas the group led by Uddhav Thackeray will be known as Shiv Sena (UBT). Against this order of EC Uddhav Thackeray group filed a petition in the Supreme Court (SC) to stay this order of EC.
Yesterday, the SC heard this matter by a bench headed by Chief Justice DY Chandrachud and Justices PS Narsimha and JB Pardiwal. After hearing from the Counsels of the Uddhav Thackeray group, the bench gave the following order:
- SC rejects plea to stay the EC’s decision to allot the ‘Shiv Sena’ name and ‘bow and arrow’ symbol to Eknath Shinde-led group.
- SC does not restrain the Shinde group from taking over the assets and bank accounts of Shiv Sena.
- Uddhav Thackeray group can continue using ‘Shiv Sena (Uddhav Balasahib Thackeray)’ name and ‘flaming torch’ symbol till further orders. EC had allowed them to use this name and symbol till the mid-term elections in two assembly seats.
- Shinde group could allow MPS & MLAs owing allegiance to Uddhav Thackeray to continue without facing fresh disqualification proceedings. This order was because of the fear of UBT group MPs and MLAs, because Shinde group who is Shiv Sena now can issue whips to all Sena MPS and MLAs to vote for them, infraction of which would invite fresh disqualifications petitions and proceedings.
- The SC has asked the Shinde group to file its responses in two weeks on the points raised by the SC.
As per press reports, it has still not been clarified whether Shiv Sena (UBT) is a recognized legislature party in the Maharashtra assembly. In the absence of any directives from the competent authority, the present speaker gave a statement yesterday, I will not be in a position to recognize the Shiv Sena (UBT) any legislative party or group.
With few days left for the Budget session of the Maharashtra assembly, one has to wait and watch for the happenings on this issue.
There is one more case, which was also heard by the SC bench headed by CJ DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha. This is the case where 12 MLAs belonging to Shinde group had filed a petition in the SC because a disqualification notice is given to them by the then-deputy speaker and they were asked to give their reply within 2 days. In this case, the SC made an observation “saying that the SC may not have intervened on 27th June 2022 had the deputy speaker not given an unreasonable two days’ time for them to respond to the disqualifications petitions against the norms of a minimum of 7 days. In any case, it is the speaker who should be deciding the disqualifications.
When UBT group’s counselor said, the disqualifications notice were given to 12 MLAs as they had defied the whip issued by the party. The bench pointed out that “ if the courts start deciding disqualification of MLAs at the first instance, instead of the speaker, it would have serious ramifications. Right or wrong, there is a system assigning the speaker the task of adjudicating the disqualification petitions. Can the courts breach the established constitutional system?
The fact is, in this case, that, when the defections of MLAs started, then the Sena led by Uddhav Thackeray was surprised and taken off guard, but the other group was smart and they sent the notice for the removal of the deputy speaker with the governor as they were sure that the dy speaker being Uddhav’s man will play mischief with them. The position was such that when dy speaker issued a disqualification notice to 12 MLAs, their response was as the disqualification notice against dy speaker is pending, therefore, he has no right to send a disqualification notice to MLAs.
In a similar case of the Arunachal Pradesh assembly, which is known as Naban Rebia case, the SC had said that speaker of the house can not decide a disqualification plea under the anti-defection law while a notice for the speaker’s removal is pending.
Whatever happened that time in June 2022, the fact is that Uddhav Thackeray govt had lost the majority in the assembly, and Uddhav did not face the trust vote on the floor of house and resigned one day prior to the date when the assembly was to be convened.
When counsel for UBT said that the SC should restore the status quo as of 27th June 2022, the bench said for that to happen, it has to restore the situation prior to 27th June, after which Uddhav Thackeray resign without facing a trust vote, and after that Eknath Shinde won the trust vote. So, ‘can we restore the deputy speaker and ask him to decide the disqualification proceedings against MLAs after the passage of eight months, and several subsequent events?
When counsel for UBT said the SC had done exactly that in the Nabam Rebia case in 2016 by ordering restoration of the status quo. The CJI said, “ You rely on Rebia ruling when it suits you, and seek its reconsideration when it does not”. Because last week the same counsel was of the opinion that Rebia’s case should be reviewed by a larger bench, at that time the bench had said they will take the call when the time came.
The arguments will continue on 23rd Feb and are likely to spill over next week.
In my opinion, the proceedings up till now are giving indications that the verdict may not favour UBT.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
23rd February 2023.