Tuesday, December 6, 2022

Real Shiv Sena: Supreme Court disposes of Uddhav Thackeray plea, allows Election Commission to decide on claim of Eknath Shinde

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The Supreme Court on Tuesday dismissed the interim application filed by the Uddhav Thackeray faction, seeking stay on the Election Commission of India from deciding on the claim made by the Eknath Shinde for recognition as the official Shiv Sena party.
The order was passed by a five-Judge Constitution Bench comprising Justice D.Y. Chandrachud, Justice M.R. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice P.S. Narasimha, after a day-long hearing. 
The Constitution Bench was hearing a batch of petitions filed by members of rival groups, challenging the various actions of the Speaker, the Deputy Speaker and the Governor in relation to political developments in Maharashtra.

The Apex Court, during the hearing, asked Senior Advocate Kapil Sibal, representing the Uddhav camp, in what capacity did Shinde approach the ECI with his claim as the real Shiv Sena. Sibal replied that this was the whole issue, as Shinde could not approach the ECI, once he had incurred disqualification. He further said that he challenged the “very locus” of the person who moved the Commission.

Asked about the powers of the Commission being invoked, the Senior Advocate said that Shinde’s claim was raised on the basis of Election Symbols (Reservation and Allotment) Order and the decision of the Supreme Court in the Sadiq Ali case. 
As per Sibal, the Sadiq Ali case was decided at a point when the tenth schedule was yet to be introduced in the Constitution. He said Shinde had incurred disqualification as his various acts amounted to voluntary giving up of the party membership under Paragraph 2(1)(a) of the Tenth Schedule; also he had violated the party whip as per paragraph 2(1)(b) of the Tenth Schedule.

The matter came under the ambit of jurisdiction of the Speaker under the tenth schedule and the ambit of jurisdiction of the Election Commission with respect to the symbol order, noted the Apex Court.

It said a political party was a much wider configuration than the legislative unit of that party, which consisted of the elected members..It asked whether the dispute in relation to the former in the legislative unit could affect the authority of the Election Commission. 

As per Sibal, the legislature party worked within the framework of the political party and that there was an umbilical cord linking them. 

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