Editorial: A setback for the Uddhav Sena?

So, the Eknath Shinde-led party is the real Shiv Sena. In a far-reaching verdict, the Election Commission asserted last Friday that the Shiv Sena faction of Maharashtra Chief Minister Eknath Shinde, as opposed to the faction of Uddhav Thackeray, was the real Sena. And it would be free to use the party name and the symbol of bow and arrow. Predictably, Thackeray called the EC names and threatened to go to the Supreme Court in appeal. On the other hand, Shinde saw vindication in the verdict, saying it was the victory of “Balasaheb and Anand Dighe, our workers, MPs, MLAs and lakhs of Shiv Sainiks”. The 77-page EC order explained the reasoning behind its decision. First, applying the test of majority it was established that the Shinde faction enjoyed the support of 40 out of 67 MLAs and MLCs, and 13 out of 22 MPs in both Houses of Parliament. The other test of the party constitution could not be applied in this case because the party had not submitted a copy of its constitution as claimed amended in 2018. The Thackeray faction had argued that the amended constitution empowered the Sena Pramukh to appoint most office-bearers, a plea not supported by a copy of the amended constitution. The clear implication was that there was no such amendment and it was an after-thought to support the Thackeray case. The EC said that it was not barred either by the High Court or the Supreme Court — where cases are pending regarding disqualification of MLAs — from adjudicating the symbol dispute.

In 1971, in the Congress split case the EC had decided in favour of the Indira Gandhi faction led by Jagjivan Ram, and against the Morarji Desai faction led by S Nijalingappa. Subsequently, the Supreme Court had upheld the EC decision. The Thackeray faction probably realising the lack of support among a majority of the MPS and MLAs pleaded strongly for the EC to postpone the hearing till after the SC verdict in the Speaker’s matter before it. The EC found little merit in the plea, asserting that the two proceedings were not connected. Meanwhile, NCP leader Sharad Pawar’s reaction on the EC decision that it would have no impact on the ground was on expected lines. Others in the Maharashtra Vikas Agadhi too downplayed the significance of the EC order, saying regardless of the EC order for ordinary Sainiks Uddhav, as the son of the founder Balasaheb Thackeray, represented the real Shiv Sena. Maybe the test on the ground will first be in the upcoming elections to the Bombay Municipal Corporation and later to the Lok Sabha.

Meanwhile, a five-member Supreme Court bench, headed by Chief Justice D Y Chandrachud, reserved its verdict on the plea by the Thackeray faction to constitute a seven-judge bench to review the verdict in the 2016 Nabam Rabia case. In that case, a five-judge bench had said that when a motion for the removal of the presiding officer of the Assembly , in that case of the Deputy Speaker of the Arunachal Pradesh, was pending he was not empowered to adjudicate matters under the anti-defection law. In the case filed by the Uddhav faction it was pleaded that the then Speaker of the Maharashtra Assembly was empowered to act on its plea to disqualify the members of the Shinde faction. The Shinde faction had argued that, as established in the Rabia case, the Maharashtra Speaker was not qualified to act against them since a motion for his removal had already been moved by them. Now, the Uddhav faction wants the SC to reverse the Rabia case ruling. The apex court should simply refuse to expend any more valuable court time on the case. Politicians as per their changing positions and prejudices will keep pleading for different orders at different times. As for the Thackeray lawyer, Kapil Sibal, like every lawyer he was expected to plead his client’s case whoever is the client. In the Rabia case he got the court to order in favour of his then client. Now as the Thackeray lawyer he finds the Rabia case verdict inconvenient, finding it flawed and requiring an urgent review. The court did well not to reopen the Rabia case in a hurry. It should stay with that decision.