Anti-defection law not a weapon for leader who has lost confidence of own party: Eknath Shinde group tells Supreme Court

Senior advocate Harish Salve appearing for the Shinde group made the remark while responding to arguments by senior advocates Kapil Sibal and AM Singhvi for the Uddhav Thackeray faction that the actions of the rebels amounted to voluntary giving up of party membership and the only defence available to them to escape the anti-defection law is to claim merger with another party or float a new party.

Sibal told the bench presided by Chief Justice of India NV Ramana that in the Karnataka assembly matter, the apex court had held that giving up of party membership can be inferred from conduct. “Here they were called for a party meeting, but they went to Surat and then to Guwahati. 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.”

He added that the rebels were arguing they were the original party. “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 the President of the official party… They are linked to the political party and that linkage 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 added “if this is permitted, the majority can be used to topple any government.”

Singhvi argued that the anti-defection law was being turned on its head. “…they can’t claim legitimacy on the majority alone,” he said.

He contended that the “gameplan” was not only to run a government in Maharashtra but to gain legitimacy by getting some orders from the ECI and delaying the proceedings before the court.

Salve, however, disputed the argument that the conduct of the MLAs amounted to voluntary giving up of 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. Today what has happened is within the Shiv Sena party, there have been changes…” he said.

He added that “the basic premise of the anti-defection law is when you leave your political party” and added that “nobody has found up till now that anybody (in Shiv Sena) has been disqualified.”

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

Salve responded by saying “there is no relevance for a party dissent as long as I do not leave my party. Look at the definition of the original political party.” He added 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 the 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.”

The CJI asked how the court can “agree with this proposition that suppose your CM or leader of the political party has not met you, you will form a new political party?” Salve was quick to respond that the rebel Sena MLAs have not formed any new political party. He added that it was Sibal’s argument that the rebels have formed a new party and asked “but who has found it?”

“I’m in the party. I’m 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,” said Salve.

“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… So there is a qualitative difference between leaders of a political party, a group of leaders of a political party losing a confidence of members of the political party and that political party is setting its house in order and people saying I’m leaving the political party,” argued salve.

Salve also disputed the argument that the rebels by going to the ECI had formalised the disqualification. “What is going on before the Election Commission has nothing to 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 the ECI, Salve said there have been further political developments on the ground post Uddhav Thackeray’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 added that the Supreme Court will have to act like a tribunal and receive evidence to decide if it were to venture into the question.

Salve said the Speaker’s role in such situations has been under the scanner. “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 of MLAs said the apex court is “being asked to bypass all coordinate constitutional bodies.”

The CJI reminded that “if you are going to argue like that… you came to the court first. And entertaining that writ petition is contrary to the judgement in the Karnataka assembly matter that the High Court has to be approached first.”

But Kaul said the reason why they came to the Supreme Court 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 Rebia case of 2016 was also taken into consideration in the Karnataka matter and it was after this that the Supreme Court had said that all such matters should first be decided in the high courts.