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Shinde vs Thackeray: Anti-defection law can’t be used to lock up MLAs after losing majority: Harish Salve

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The Supreme Court on Wednesday heard the petitions related to the Maharashtra political crisis with both Chief Minister Eknath Shinde and his predecessor Uddhav Thackeray filing claims over which is the real Shiv Sena.

Appearing for the Shinde faction, Senior Advocate Harish Salve said that anti-defection law was not a weapon for a leader, who has lost the majority within the party, to hang on to power by locking up its members.

As per Salve, there were serious factual controversies in the matter. He said if a large number of MLAs were not happy with the present leadership in the party, they were entitled to demand a new leader.

The Counsel asserted that Eknath Shinde was a dissenting member of the party and was still a part of Shiv Sena. Using the the Congress split in 1969 as an analogy, Salve submitted that Shiv Sena had two groups within the party.

He said the question, which needed answer on an immediate basis, was who was now the leader of the political party.

Stating that there was a difference between an intra-party conflict against a leader and persons leaving the party, Salve said the question of anti-defection would arise only to those giving up the party membership.

Regarding the arguments made by Senior Advocate Kapil Sibal on disqualification, Salve said that a member cannot be disqualified merely for not attending a party meeting, adding that there was no Supreme Court verdict, which held the same.

Salve also argued on the court substituting to the Speaker’s jurisdiction. He said the Speaker has been elected by a majority and he cannot be stripped of all the authority and have this court decide the petitions for disqualification.

CJI Ramana then told Salve that Shinde came to the court first and got the orders of the court asking the Deputy Speaker to defer the hearing of disqualification by 10 days. However now, an argument was being advanced that the Speaker should decide the issue.

Salve replied that the arguments were not on getting 10-day advantage, but the same were misconceived.

The Counsel asserted that nobody has left the membership of the party and the reason why they approached the Supreme Court was that the Speaker
could not decide on their disqualification, as there was a resolution seeking his removal.

However, he agreed to the point that the Shinde faction could have moved the High Court under Article 226 of the Constitution.

On behalf of Governor Bhagat Singh Koshiyari, Solicitor General Tushar Mehta appeared before the Bench headed by Chief Justice of India N.V. Ramana.

He said all the parties have submitted their replies to the Apex Court regarding the constitutional question in this case, which the court had asked last time.

The top court of the country has already indicated to refer the matter to a larger bench during the hearing.
Kapil Sibal, appearing on behalf of Uddhav Thackeray, said that the rebel MLAs neither formed a separate party, nor merged with any party. They were calling themselves the original party.

The CJI asked, “We want to know that if two-thirds of the members of a party separate from a political party, will they have to form a new party?
“Whether the new group would have to be registered with the Election Commission? Or go to the Speaker? Or will he have to join BJP?”

Sibal said that if he forms a new party, he will have to register with the Election Commission, but when he merges with a party, registration is not required.

Sibal said that this is also an issue of balance. One-third of the members are still in the party. In such a situation, the rebel members cannot say, “We are the party.”

CJI asked Sibal, “According to you, not attending the meeting is giving up the membership of the party?”

Sibal replied that they (rebel MLAs) have given up the membership. They have appointed a new whip as well as elected a new leader. They have also admitted in front of the Election Commission that they have separated.

“The party from which you have come, you should listen to it. Instead of a party meeting, you hold a meeting in Guwahati and say that we are the real political party,” Sibal added.

He said the Tenth Schedule is being used to promote defection. He raised the question as to whether this was the purpose of the Tenth Schedule? Sibal said that if this is allowed, this can be used to bring down any majority government.

“If you are disqualified, then you cannot go to the Election Commission, you cannot even apply to the Commission.
With their disqualification, everything becomes illegal. The formation of the government, Eknath Shinde becoming the Chief Minister and the decisions being taken by the government all become illegal,” concluded Sibal.

Abhishek Manu Singhvi then presented his side on behalf of the Thackeray faction.

Singhvi said that the issue was very interesting as the only loophole before all of them was merger, which they did not do. At present, the Shinde faction was running the government illegally in Maharashtra and claiming before the Election Commission that it was the real Shiv Sena.

As per Singhvi, the matter was still pending in the court. Despite this, the Shinde Group has filed a petition in the Election Commission, which was completely wrong. Now the only way for them was to go before the Election Commission and the Commission should give them recognition.

The Apex Court will take up the matter tomorrow.

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