Supreme Court has decided to hear the plea by Uddhav Thackeray that challenges the decision by Election Commission for allotting Shiv Sena name, symbol to Eknath tomorrow.
The CM Eknath Shinde has however said that they will not stake claim to any property of Shiv Sena, including Sena Bhavan.
At present the Supreme court five-judge Constitution bench is been hearing the batch of plea that deal with the political fallout in Maharashtra which happened after the Shiv Sena split.
During the Court room hearing the Advocate Kapil Sibal told the bench that there are around three prime issues which come in fore in the matter.
The first question was that if the governor swears member of legislative assembly against whom a proceeding under xth schedule is pending , what are his powers in matters of disqualification?
The second pertinent question was whether a constitutional court without referring the matter to the speaker decide that the matter doesn’t have a disputed fact.To further a clarify their point the counsel referred to xth schedule by which the speaker has the power to initiate a disqualification proceeding against a member of party / legislative assembly.
Third important question asked by the counsel was what are the powers of election commission against disqualification, and when a party is split in two fragments then which party should get the symbol under symbols act.
Advocate Kapil Sibal, appearing
for the Uddhav Thackeray faction argued that if the court upholds the Eknath Shinde faction as the official Shiv Sena, it could be a precedent for toppling down any government. He cautioned that the court would be enabling defections.
Senior Advocate Sibal contended that previously, the Shinde faction never argued that there existed a split in the party.
However, now, the ECI has recognized that there is a split.
“They said they’re the real Shivsena. If you’re disqualified you cannot be a minister. Now your disqualification is pending before the court. It is pending before the speaker and you’re appointed as the minister?”.
He further argued that the purpose of the 52nd amendment was to prevent the destabilisation of the government by bulk defection but that was exactly what had happened in the present case. He highlighted that the tenth schedule does not recognize ‘split’ as a defence and the only defence against disqualification is merger with another party. Therefore, it is immaterial if the Shinde group is the majority within the legislature.
“The concept of minority is over. Bulk majority will also be qualified of disqualification. What they’re doing is bulk defection which is what is to be prevented. If this is allowed by court then any government can be toppled. You just take those people, become majority, have a trust vote-topple the government. You don’t need a split”.
Sibal suggested that the only remedy is to have a law that MLAs who defect will not be entitled to hold any public office for at least the next five years.
“The only way to remedy this is to have a five year period of no public post. If you want to maintain morality in public life, you will not be given any office – no governorship, no remunerative posts.”
Sibal argued that merely by
claiming majority within the
legislative wing, a group cannot claim to be the real party.
“There is no contest. There has to be a split in the party. It is nobody’s case. They’re saying they’re the Shivsena. That can only happen if there’s a split in the party. Otherwise it’s just a normal procedure of taking presidentship of the party. Para 15 of symbol order says that if there are two factions in political party, then the question of symbol will arise. That is nobody’s case here. How does the majority in legislative
assembly become Shivsena?
This has great consequences on
the polity of the country.
Because now the legislative party believes that it can proclaim to be the political party and throw out office bearers of the political party”.
Sibal also took objection to the newly elected Speaker replacing the whip and the legislative party leader of Shiv Sena, replacing the whip and the leader appointed by the party chief Uddhav Thackeray. He argued that it is not for the Speaker to make such appointments but for the Party chief. By making such appointments, the Speaker has acted in an openly biased manner. In such a scenario, there could not be any confidence in this constitutional authority.
However, the bench pointed out
that the Parliament has decided that the Speaker will act as the Tribunal under the tenth schedule and this was upheld by the Supreme Court in Kihoto Hollohon case.
Justice PS Narasimha said-
“The parliamentarians have decided that Speaker will be the tribunal. The court is only interpreting. As long as the constitutional judgement (of Kihoto Hollohon) is there, we’ll go by this- that the speaker is the tribunal under tenth schedule…unless there is a constitutional amendment or a direct challenge to this…”
Senior Advocate Sibal, furthering his arguments, remarked-
“The fact is that he has no authority in law to decide upon the whip and the leader of the house. I told them that if they take the symbol and then get disqualified, what happens to the symbol? Do we then get back the symbol? Election commission, on 8th Oct, without hearing either of the party, freezed the symbol of bow and arrow. Hearing is mandatory.”
He also argued that the Shinde faction did not enjoy an “overwhelming majority” and while they had a majority in two houses, the Thackeray faction also enjoyed majority in two houses. He submitted-
“What we need to note is that he cannot vote contrary to direction issued by the political party. So it’s the political party, not the legislative party, who issues directions.”
While concluding his arguments,
Sibal stated that the 40 MLAs who joined the Shinde camp had no defence under the tenth schedule. He said-
“They don’t claim that there is a merger. They say they are majority in the legislative party. They claim that they can change the whip, they can change the leader of the house. Eknath Shinde calls himself the leader- because he’s one of 40. What happens to the political party? He is enjoying the fruits of ministership and says I can do whatever – I can join the BJP, I can go to Gauhati. Under what provision of tenth schedule can they have a defence?
The schedule doesn’t give them a defence. You cannot destabilize a government. Bulk defections are destroying the polity of the country and elected governments are being toppled. If such an act is upheld by judicial process you are enabling such future defections which will have far reaching impact on polity of the country.”
The post Kapil Sibal tells Supreme Court that approving Shinde faction will enable future bulk defections, making Government topple appeared first on India Legal.
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