Rival Sena sides face off in SC: Voluntarily quitting vs hanging on to power

Appearing for the Shinde group, senior advocate Harish Salve said this while responding to arguments by senior advocates Kapil Sibal and A M Singhvi, who appeared for the Uddhav Thackeray faction and argued that actions of the rebels amounted to voluntarily giving up membership of the party.

The only defence available to the rebels to escape the anti-defection law is to claim merger with another party, or float a new party, Sibal said.

Sibal told the bench, presided by Chief Justice of India N V Ramana, that in the Karnataka Assembly matter, the SC had held that giving up party membership can be inferred from conduct. In this case, the rebel MLAs were called for a party meeting but they went to Surat and then to Guwahati, he said.

“They wrote to the Deputy Speaker, appointed their whip. They have given up their membership of the party by their conduct. They can’t claim to be the original political party as defined in the Tenth Schedule of the Constitution…. Every act of theirs…amounts to voluntary giving up party membership.”

Sibal said the rebels are arguing they are the original Sena. But, he submitted, “That is not permissible. They admit before the Election Commission of India (ECI) that there is a split…. Even today they recognised Uddhav Thackeray as president of the official party…. They are linked to the party and that link is not severed merely because they say they are the majority in the legislature.”

The senior counsel argued that “what is being done is to use the Tenth schedule to encourage defection” and, “if this is permitted, the majority can be used to topple any government”.

Singhvi argued that the anti-defection law is being turned on its head. The law says that it’s a constitutional sin even if a majority defects, he said, “so they can’t claim legitimacy on majority alone”.

Salve disputed the argument that the rebels’ conduct amounted to voluntarily giving up Sena membership and said someone will have to decide that. He pointed out that in the original draft of the anti-defection law, there was a provision which said if a member is expelled from a party, he is disqualified. “There was concern that this would give absolute power to the party bosses, and give control on intra-party dissent, which was not what the anti-defection law was supposed for,” Salve said.

He said the “basic premise of the anti-defection law is when you leave your political party” and that it has not been found until now that “anybody (in the Sena) has been disqualified”.

The bench asked if he was trying to say that once a member gets elected she/he can forget about the political party.

Salve responded that he was only saying that there is “no relevance for a party dissent as long as I do not leave my party. Look at the definition of original political party.” He said that “in India, we tend to confuse some political parties with individuals..that so and so is India and India is so and so….Original political party is defined as the political party to which a member belongs…Now I belong to Shiv Sena…My Chief Minister refuses to meet me…There are a lot of MLAs who say we want a change in the political party. That is not anti-party, but intra-party [act]”.

The CJI asked how can the court “agree with this proposition: suppose your CM or leader of the political party has not met you, you will form a new political party?”

Salve responded that the rebel MLAs have not formed any new party. He said it was Sibal’s argument that the rebels have formed a new party and asked, “but who has found it?”

Salve said: “I am in the party. I am a dissenting member of the party. I get up and raise my voice and say sorry Mr Leader, I don’t want you. I don’t forfeit my membership of the party. If Your Lordship were ever to hold that a man who raises his voice against the leadership, for that reason alone forfeits membership of the party, this will not become an anti-defection law, this will become an anti-party democracy law.”

“Within a political party there has to be democracy. I’m not saying there are two Shiv Senas. I’m saying there are two groups within a political party. It happens all the time. It happened in 1969 within the Congress,” Sibal pointed out. “So there is a qualitative difference between leaders of a political party, a group of leaders of a political party losing the confidence of members of the political party, and that party is setting its house in order and people saying, I’m leaving the political party.”

Salve also disputed the argument that the rebels by going to ECI had formalised the disqualification. “What is going on before the Election Commission has nothing to do with disqualification. My learned friend seems to argue that if I go to ECI, I’m disqualified. Certainly not. That’s not the law”.

To a query from the bench why the rebels had approached ECI, Salve said there have been further political developments on the ground after Uddhav’s resignation. “There are now factions…Who is the original political party who gets the symbol..because BMC elections are around the corner…”

He said “there is an allegation that members of the Shiv Sena have left the membership of the original political party. Mr Sibal says it’s a given. I’m sorry it’s not.” Salve also said the SC will have to act like a tribunal and receive evidence to decide if it were to venture into the question.

Salve said there are always question marks raised about the Speaker’s role in such situations. “Our challenge was different…The Deputy Speaker against whom the majority members had moved a resolution that he should be removed…Today to tell your Lordships that the Speaker who has been elected by the majority of the members of the House,should be stripped of all authority, and Your Lordships should become the defection tribunal is unprecedented.”

Senior advocate Neeraj Kishan Kaul, also appearing for the Shinde group, said the SC is “being asked to bypass all coordinate constitutional bodies”.

The CJI reminded that “…you came to the court first. And entertaining that writ petition is contrary to the judgment in the Karnataka Assembly matter that the High Court has to be approached first”.

But Kaul said the reason why they came to the SC was because what was happening was in the teeth of the SC ruling in Nabam Rebia case wherein it was held that if a motion is pending against a Speaker/Deputy Speaker, he cannot initiate, continue or decide on disqualification of MLAs.

The CJI responded that the Rabia case which was in 2016 was also taken into consideration in the Karnataka matter and it is after this that the SC said that all such matters should first be decided in HC.