supreme-court-maharashtra-shiv-sena-split-eknath-shinde-uddhav-thackeray-sc-asks-shouldnt-political-parties-abide-by-democratic-principles-544693

In the Shiv Sena matter, the Supreme Court today asked the Uddhav Thackeray faction if political parties are not supposed to abide by democratic principles the way constitutional institutions do.

"Your party constitution was based on democratic principles. And then you suddenly brought an amendment and created a complete...When we talk of democratic principles in institutions, a question would arise - as a political party, are you also not supposed to follow the principles?" the Chief Justice of India questioned.

In response, Senior Advocate Kapil Sibal, for the Uddhav faction, contended that there is a difference between institutions that discharge political functions and institutions that discharge constitutional functions. He said that while an erroneous political function can be corrected, a wrong decision by a constitutional authority like ECI can seldom be rectified. The senior counsel further underlined that the level of integrity expected from institutions discharging constitutional functions is way higher.

"Institutional integrity is at the heart of a democracy. Defection is a constitutional sin. [But] Now, it is a badge of honor. Already, enough powers have been given to ECI. Give another power (to go into validity of party constitution and ignore them) and see what happens", Sibal commented.

The exchange was in the context of Sibal questioning the ECI's refusal to accept Shiv Sena's Constitution on the ground that it did not provide for internal democracy.

The bench of CJI Kant, Justice Joymalya Bagchi and Justice V Mohana was dealing with the plea filed by Uddhav Thackeray faction member Sunil Prabhu challenging the Maharashtra Speaker's refusal to disqualify MLAs of the Eknath Shinde faction under the 10th Schedule. Another petition, filed by Uddhav Thackeray, was also listed before the bench, which challenges the ECI decision that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol.

Yesterday, Justice Bagchi had orally observed, on the strength of the Constitution Bench decision in Subhash Desai, that a political party has subsisting control over a legislature party and any decision of the political party would prevail over the will of the majority of the legislature party. 

Today, Sibal contended inter-alia that the ECI had no jurisdiction to question the 2018 party constitution and it erred in "assuming the jurisdiction" and ignoring the constitution while holding in favor of the Shinde faction. In this regard, Sibal relied on a Division Bench judgment of the Delhi High Court, as per which the ECI does not have adjudicatory power with regard to a party's constitution.

"Maximum power they have is of withdrawing recognition. But they assume jurisdiction and decide the matter on the basis of that. This is most unfair. If institutions don't inspire confidence, this is what happens", he averred. 

Sibal further claimed that the Uddhav faction was left in a lurch because the disqualification issue was not timely decided. He recalled that he had urged before the Constitution bench as well that ECI should first decide the disqualification issue, not the election symbol issue, but the plea was rejected.

Justice Bagchi, in response, noted that there were overlapping facts in both issues, but the tests employed by the Speaker (on the disqualification issue) and the ECI (to decide the election symbol issue) differed.

From the Subhash Desai case, the judge observed that voluntarily giving up membership of a party was held not to automatically amount as severance of ties with the party. It was also noted that the Speaker decided the issues on the basis of actions of the Eknath Shinde faction, such as moving of the 31 MLAs to Surat and their not attending party meetings despite notice.

When Sibal highlighted that there were other anti-party activities as well, such as the MLAs' passing of own resolution appointing Eknath Shinde as group leader and Bharat Gogawale as Chief Whip, Justice Bagchi noted that those events took place "after" the filing of disqualification petitions. Sibal however argued that the same did not matter, especially as the Constitution Bench held those actions to be illegal. Differing, Justice Bagchi said that the date did matter and the Constitution Bench did not decide on disqualification. The judge further referred to the Sharad Yadav case, where it was held that the date of filing of disqualification petition would be relevant.

Subsequently, Sibal argued that under law (Section 29A of RP Act), there is no requirement for a party to place on record of the ECI its amended Constitution. He said that only the original constitution is to be placed on record before the ECI, while any subsequent amendments are only to be intimated. Even so, he maintained that in the present case, the 2018 constitution was sent to the poll body along with the Uddhav faction's letter (although the same is denied by ECI).

Sibal also lamented the manner in which the Shinde faction came to power. He highlighted that the ECI disregarded the political party's organizational structure, the Speaker kept the disqualification petitions pending, the facts of the case were covered by precedents, yet the party's symbol was allotted to Shinde faction and virtually everything taken away from the political party. It was stressed that the Shinde government should not have been allowed to be formed.

The senior counsel also remarked that people in power are like a magnet. He underlined that in Shiv Sena's case, initially 31 MLAs defected then the number rose to 39. Certain MPs as well, who were with the Uddhav faction, shifted sides after Shinde became Chief Minister. So to keep disqualification petitions "lingering" is wrong.

Another contention of the Uddhav faction was that the Election Symbols Order does not recognize the concept of a legislature party. On facts, it was also highlighted that both sides had filed their affidavits before the ECI to show the support they enjoyed in the legislative and organizational wings. The Uddhav faction had an overwhelming majority in the organizational wing. Hence, the ECI found it "convenient" to ignore the 2018 constitution and the organizational structure.

Appearance: Senior Advocate Kapil Sibal and Devadatt Kamat (for Uddhav faction); Senior Advocates Neeraj Kishan Kaul and Maninder Singh (for respondents)

Case : Sunil Prabhu v. Eknath Shinde SLP(C) No. 1644-1662/2024 (and connected case)

https://www.livelaw.in/top-stories/supreme-court-maharashtra-shiv-sena-split-eknath-shinde-uddhav-thackeray-sc-asks-shouldnt-political-parties-abide-by-democratic-principles-544693

In the Shiv Sena dispute, the Supreme Court today orally said that as per existing law, a political party has subsisting control over a legislature party and any decision of the political party would prevail over the will of the majority of the legislature party.

A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing the plea filed by Uddhav Thackeray faction member Sunil Prabhu challenging the Maharashtra Speaker's refusal to disqualify MLAs of the Eknath Shinde faction under the 10th Schedule. Another petition, filed by Uddhav Thackeray, was also listed before the bench, which challenges the ECI decision that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol.

During the hearing, Justice Bagchi observed :

"Law as it stands is Subash Desai. The control of the political party subsists over the legislature party. Any decision of the political party, validly demonstrated, must prevail over any will, even if of the majority of the legislature party."

The judge was recapitulating the legal position laid down in Subhash Desai v. Government of Maharashtra, where a Constitution Bench of the Court held that the Maharashtra Governor's decision to call a floor test after the Shiv Sena split was wrong, but Uddhav Thackeray could not be reinstated as he resigned before facing the floor test. In Subhash Desai, the Court had also held that a legislative party cannot act independent of the political party, and that legislative majority was irrelevant in determining which group was the real party.

Justice Bagchi opined that the ECI was wrong in considering whether there was majority in the legislature party. "It should be something to do with the political party", the judge remarked.

For context, the ECI's recognition of Shinde faction as the real Shiv Sena was based on the reasoning that they had legislative majority (i.e majority of MLAs were with Shinde). In 2024, the Speaker rejected the disqualification petitions by following the ECI's reasoning that Shinde group enjoyed legislative majority. Prior to that, in 2023, the Supreme Court had refused to stay the ECI decision, but permitted the Uddhav faction to retain the name "Shiv Sena (Uddhav Balasaheb Thackeray)" and the symbol "flaming torch" in terms of paragraph 133(IV) of the ECI order (during the pendency of the matter).

Uddhav faction's submissions

Today, Senior Advocate Kapil Sibal, appearing on behalf of the Uddhav Thackeray faction, made submissions in connection with the disqualification issue. He took the Court through a list of dates and contended inter-alia that:

- The ECI does not have jurisdiction to decide the validity of a party's constitution. Its decision, which refused to acknowledge the 2018 party Constitution on the purported ground that the Constitution was not on record, was erroneous. Besides, Article 11A of the constitution was highlighted before the ECI in 2013;

- Both parties acknowledge that they were appointed under the 2018 party constitution and neither party has challenged the said constitution. For as long as Eknath Shinde was a Cabinet Minister (while Uddhav Thackeray was Chief Minister), no issue was raised qua the 2013 or the 2018 party Constitutions;

- Uddhav Thackeray's status as leader of the party was never doubted by the respondents (including Eknath Shinde), or the ECI, or the Maharashtra Speaker. It was Uddhav Thackeray who, as Paksh Pramukh, appointed Eknath Shinde as Group Leader and Sunil Prabhu as Chief Whip. But in 2019, 31 MLAs "voluntarily gave up membership of the party" and resolved to declare Eknath Shinde as party leader and Bharat Gogawale as the Chief Whip. Notices were issued by Uddhav Thackeray while calling a meeting after the "anti-party" actions, to the effect that failure to attend would attract action under 10th Schedule, but the 31 MLAs did not attend the meeting. The MLAs' actions amounted to voluntarily giving up of membership, which is a ground for disqualification as per paragraph 2 of the 10th schedule.

- The 31 MLAs' defection was pre-meditated. They first went to Surat, then to Guwahati (in BJP-ruled stated). The MLAs' response was that they met at Surat by chance, but that could not have been a coincidence. The MLAs were in constant communication with the BJP and Eknath Shinde openly stated that they had the support of a big national party.

- After the MLAs' defection, Uddhav Thackeray convened a meeting, and it was resolved that Eknath Shinde be replaced by Ajay Chaudhri as Group Leader. The resolution was conveyed to the Deputy Speaker and he recognized it. However, the 31 MLAs passed a resolution recognizing Eknath Shinde as Group leader and Gogawale as Chief Whip, which was conveyed to the Speaker.

- The question before the ECI was not of the split of a 'political' party, but rather, a 'legislature' party. There was a split in the 'legislature party' and in terms of what was held in Subhash Desai, a faction of a legislature party cannot change the Group Leader or the Chief Whip.

- The 10th schedule no longer recognizes the concept of 'split'. The only defence is merger with another party, which has admittedly not happened in this case. A splinter legislative group cannot claim to be the real party.

- The issues have implications for the system of representative democracy. The defection of the 31 MLAs led to the toppling of the elected Maharashtra government, and eventually Eknath Shinde became Chief Minister.

In this regard, Sibal also spoke about the emerging trend of a legislature party merging with another political party. He submitted that when legislators contest on one party's ticket using its symbol, and then merge with another party and represent another symbol, the end result is that the electorate is not represented by the government it elected. This kind of manipulation and defection can change electoral verdicts and reduce the process of elections to a farce.

"Is it not fundamentally against the basic structure of the Constitution that the representative of a party suddenly moves to another party, forms coalition with it, topples the government and doesn't allow the disqualification proceedings to be decided until the next election?", Sibal asked.

- The whole matter suffered fait accompli, as no mandamus was issued to the Speaker. The Speaker responded to the notices only after the matter came before the Constitution Bench (in 2023). The 10th schedule is rendered otiose if the Speaker, an Election Tribunal, does not decide disqualification issues in time. Due to the delay occasioned, a government with no legal foundation served its term.

In response to Sibal's submissions, the bench made some crucial remarks. CJI Kant questioned whether there is any defined parameter in ECI's guidelines or the party Constitution on what constitutes majority of the political party. He also said that the meaning and limits of the term 'majority' reflect a gray area (which needs to be considered). Sibal replied that the Supreme Court's judgment in Sadiq Ali case has answered these issues by laying down tests to determine which faction has the majority.

Justice Bagchi queried if the election symbol belongs to the 'political' party. When Sibal replied that the symbol does belong to the political party, the judge said that the ECI was wrong in considering whether there was majority in the legislature party. "It should be something to do with the political party", the judge said.

The hearing will continue tomorrow at 2 pm.

Appearance: Senior Advocate Kapil Sibal and Devadatt Kamat (for Uddhav faction); Senior Advocates Neeraj Kishan Kaul and Maninder Singh (for respondents)

Case : Sunil Prabhu v. Eknath Shinde SLP(C) No. 1644-1662/2024 (and connected case)

https://www.livelaw.in/top-stories/supreme-court-shiv-sena-eknath-shinde-uddhav-thackeray-speaker-refusal-to-disqualify-mlas-defection-political-party-control-over-legislature-party-544511

Justice-abhay-oka-protect-peaceful-protests-cant-silence- Dissent

Former Supreme Court judge Justice Abhay Oka on Saturday said that constitutional courts must quash criminal cases instituted to silence dissent and protect citizens' fundamental right to free speech, irrespective of whether judges agree with the views expressed.

He stressed that it is not the function of courts to "preach" or "teach" citizens what they should or should not say.

Justice Oka said,

"Peaceful protest within the constitutional means are a fundamental right of citizens and if we do not allow people to express displeasure by making peaceful protest, there won't be democracy. There are citizens who are compelled to approach the courts and in particular, constitutional courts on the ground by registering an offence. Their freedom of speech and expression is sought to be infringed. When such cases come before the court, it is the duty of the court to quash the offences. The court may not like what the petitioners have said or expressed but still it is the duty of the court to protect the freedom of speech and expression. It is not the function of the court to preach or teach the petitioner what s/he should say and what s/he should not have said. That's not the function of the court at all. All that court has to see whether an offence is made out and whether there is violation of fundamental right of freedom of speech and expression. And if court is satisfied that there is violation, court has to grant relief. Court is not concerned whether court likes what the person has said."

Further the judge said that it is the 'bounden' duty of the courts to ensure the freedom of speech and expression is 'protected' and not 'stifled upon' and in fact the courts must remain ever vigilant to thwart any attempt to undermine the constitution and its values. 

"The courts must not be seen to regulate or stifle the freedom of speech and expression. I always believe that the courts and in particular constitutional courts must be at the forefront to protect the fundamental rights of the citizens. In fact, it is the bounden duty of the courts to ensure that constitution and ideals of the constitution are not trampled upon. Endeavour of the courts should always be to protect and promote fundamental rights including freedom of speech and expression which is one of the most cherish cherish rights a citizen can have in a liberal constitutional framework. The reason is that if courts are not going to protect these freedoms, these fundamental rights, who else is going to protect? Which institution is going to protect the fundamental rights of the citizen? So, it is a bounden duty of the courts to do so," Justice Oka clarified. 

Justice Oka then referred to the recent speech of Supreme Court judge Justice Ujjal Bhuyan who had criticised a Bombay High Court judge for disallowing a group of persons to peacefully protest the killings of children and women in Gaza. 

"Few days back I read a speech rendered by my esteemed colleague in Supreme Court, with whom I shared bench for long time. He referred to a case decided by I don't know which is the High Court. It was a case where somebody wanted to hold peaceful protest to deprecate what has happened in some foreign country. Permission was denied by the police. The petitioners approached the court. The court told the petitioners that look why you are bothered about something happening in foreign country, do something about what is happening in our India in our country and the court refused to grant permission. Now court is not concerned with this aspect. Somebody wants to have peaceful protest without committing any offence. Police have to permit it. The protest may on any ground so long as it is a lawful protest within the constitutional framework. It is the duty of the courts to permit it," Justice Oka said.

Justice Oka was speaking at the inaugural lecture of Advocate Haroon Solkar Memorial Lecture Series, wherein he spoke on the topic - 'Article 19(1)(a) and Article 21: Followed or Forgotten.' The event was organised by Advocates Mubin Solkar and his team.

In his speech, Justice Oka reminded that Article 51A which provides for fundamental duties of the citizens are the same duties of the State and its instrumentalities as well and thus, when the State infringes the fundamental rights of citizens' right to free speech and express, it is basically violating its fundamental duty to uphold the fundamental rights of the citizens and to respect the 'ideals' of the Constitution of India. 

"All our law laws are framed under the Constitution and therefore it becomes collective duty of the State to abide by not only the Constitution but laws framed under it. Now what are the ideals under the constitution? We'll find in preamble. One of the most important ideals is Secularism, other is Democracy and most importantly Liberty and liberty of thought and expression is also an ideal under the Constitution and therefore it becomes duty of the State to respect these ideals and the provisions of the Constitution especially chapter one fundamental rights. But in the present day we rarely see government respecting the ideals under the Constitution," Justice Oka said. 

Unfortunately, Justice Oka highlighted, that neither political leaders nor the law enforcing agencies are abiding by their duty to protect this important fundamental right.

"I have seen during last several years, last few years especially that offences under section 153A and 153B of the Indian Penal Code and offences are applied very casually only because the views expressed by certain persons are not liked by others. A standup comedian makes a fun and says something. He is booked for an offence. Again the reason is the law enforcing agencies are ignorant about the basics of our Constitution. Our police have always ignored and even sadly some of the courts have always ignored this. But now we find that when the people in position are not able to tolerate the hostile point of view, they register offences under these provisions. As I said police, we can't blame police if they don't apply the test laid down by the Supreme Court. But sadly, some of the courts do not follow that test. It is binding on every court because Supreme Court has adopted that test," Justice Oka said. 

The judge further pointed out the increase in intolerance to the thoughts which are not liked by the majority.

"Those who are in power do not tolerate criticism. I'm not speaking about any particular political party but this is the feature of our political system. We have forgotten that if you do not like a particular viewpoint, instead of attacking the person who expresses it, we must try to convince him by presenting our own point of view. Even if we feel that the views expressed are wrong, they should be patiently answered by adopting a thought process which we feel is right. Due to ever increasing intolerance, the freedom of speech and expression is under a threat. In a democracy, every citizen has a right to put forward his demands to the State and to the State machinery. That is his right. The State cannot ignore such demands of representation. It is the duty of the State to deal with every request, every representation, every expression of thought by a citizen of India. The government may or may not accept it, but it is the duty of the government to consider it. The government must have dialogue and discussion about any demand put forward by citizens. But perhaps with the passage of time, we have all forgotten these golden principles," Justice Oka said.