The Supreme Court on Tuesday refused to restrain the Election Commission of India from deciding the real Shiv Sena’s claim of the Eknath Shinde Group. A constitution bench of the court dismissed the stay application filed by the Uddhav Thackeray group after a day-long hearing.
The bench ordered
“We direct that there shall be no stay on the proceedings before the Election Commission of India. Accordingly, the interlocutory application is dismissed.”
Justice D.Y. Chandrachud, Justice MR. Shah, Justice Krishna Murari, Justice Hima Kohli and Justice P.S. Narasimha was hearing an interim application moved by the Uddhav Thackeray Group to restrain the Election Commission of India from deciding on the claim raised by the Eknath Shinde Group for recognition as an official Shiv Sena party.
Highlights of the hearing
In what capacity has Shinde approached the Election Commission? the bench asked During the hearing, the bench asked senior advocate Kapil Sibal, counsel for the Uddhav group, in what capacity Shinde approached the Election Commission of India (ECI) with his claim as the real Shiv Sena.
Sibal replied that that was the whole issue, as Shinde cannot approach the Election Commission after being disqualified. “I had challenged the position of the person who transferred the Election Commission,” Sibal said.
The bench further asked what powers of the ECI have been exercised. Sibal replied that Shinde’s claim was based on the Election Symbols (Reservation and Allotment) Order and the Supreme Court judgment in the Sadiq Ali case. He said that when the Supreme Court’s decision in Sadiq Ali et al. vs. Election Commission of India et al ., the Tenth Schedule was yet to be introduced in the Constitution.
They argued that Shinde has been disqualified as his various acts/omissions under Para 2(1)(a) of the Tenth Schedule amount to ‘voluntarily quitting the membership of the party’. Apart from this, he has also violated the party whip under Para 2(1)(b) of the Tenth Schedule.
The bench said the issue pertains to the Election Symbol Order within the jurisdiction of the Speaker and the jurisdiction of the Election Commission under the Tenth Schedule.
Justice Chandrachud said,
“Political party is a much broader configuration than the legislative unit of a party whichconsists of elected members… Whether the dispute regarding the former in the legislative unit affects the authority of the Election Commission. That is its core issue.”
Sibal replied that the legislature party works within the political party structure and there is a cord connecting them.
What would be the effect of the order symbolizing disqualification under the Tenth Schedule, the the bench asked. Sibal replied that allowing a disqualified member to approach the Election Commission is doom for democracy.
“Then any government can be throw out and they will have their own speaker who will not decide on the disqualification.”
He highlighted that the disqualification under the Tenth Schedule pertains to the time when the acts were done and are not effective from the date of the decision itself. When an elected member writes to the Governor against his own government, it is tantamount to voluntarily giving up the membership of the party
scope of election symbol order
Sibal argue that the election symbol order can be invok only if the claimant belongs to the same political party and claims to belong to the rival group.
Therefore, if a member has voluntarily given up the membership of the party, he cannot invoke Article 15, so the decision of disqualification has a great impact on the powers of the Election Commission.
Balance of convenience
Sibal said the balance of convenience is in favor of the Uddhav group. He told the bench that on August 22, the Supreme Court had ordered to maintain status quo on the Brihanmumbai Municipal Corporation elections. There are no elections taking place in the near future. He further said that allowing the Election Commission to decide on Shinde’s claim could cause “irreparable damage” to the Uddhav group.
Whereas Senior Advocate Dr Abhishek Manu Singhvi supported Sibal’s arguments for the Uddhav group. He highlighted that merger with any other political party is the only defense under the Tenth Schedule. There is no concept of “partition” under the anti-defection law.