The Supreme Court on Thursday kept in abeyance till Monday a decision on the dispute between the factions of the Shiv Sena led by party president Uddhav Thackeray and Maharashtra Chief Minister Eknath Shinde.
In a breather to the beleaguered Thackeray camp, the court also told the Election Commission not to precipitate the dispute till further orders.
On August 8 the court will decide whether to refer the constitutional questions arising from the disqualification notices issued to legislators from the warring factions to a five-judge bench.
"If the Thackeray faction seeks time to file a response to the EC's notices on the Shinde faction's petition to recognise it as the real Shiv Sena, it should be considered keeping in mind the views expressed by the apex court," said the bench headed by Chief Justice NV Ramana and including Justices Krishna Murari and Hima Kohli.
On the Shinde faction's plea to the commission to recognise it as the real Sena and give it the party’s electoral symbol of bow and arrow, the Thackeray camp said a few MLAs cannot decide for the entire party.
The constitutional issues arising from the petitions by both sides include those related to the split in the party, defections and disqualification. The constitution bench is likely to take some time to decide these questions, allowing Shinde to continue as chief minister till then.
As asked by the court on Wednesday, senior advocate Harish Salve, appearing for the Shinde group, read out a revised set of issues for consideration by the proposed constitution bench.
Salve insisted that the Thackeray camp's petitions are not maintainable since the dispute is an intra-party matter and does not invoke the anti-defection law. He argued that no one had left the Shiv Sena and so the question of disqualification simply does not arise.
The other side has filed a number of petitions in the court challenging, among other things, the decision of Governor BS Koshyari to ask then chief minister Thackeray to face a floor test, his invitation thereafter to Shinde to form the government, the election of BJP leader Rahul Narvekar as speaker of the state assembly, the recognition of Bharat Gogawale as chief whip of the party, the disqualification notices issued by Narvekar to MLAs loyal to Thackeray, and the Shinde group’s approach to the Election Commission to assert its identity as the real Sena and stake claim to the election symbol.
Referring to the late jurist Nani Palkhivala’s statement made more than four decades ago, Salve said the anti-defection law cannot become an anti-dissent law. Even if a lawmaker defies a whip issued by his party, he argued, the lawmaker is not liable to be disqualified under the anti-defection law. “[In such a situation] political parties will become infructuous," the chief justice remarked.
Senior advocate Abhishek Manu Singhvi, appearing for the Thackeray camp, wondered what would happen to the Shinde faction's claim of being the real party if 40 MLAs belonging to it were to be disqualified. Kapil Sibal added that "their claim to be the original Shiv Sena is based on the majority backing of the legislature party and so the EC cannot decide the claim."
