The Shinde faction said it was "not anti-party, but intra-party" dispute after Uddhav Thackeray-led camp claimed that these MLAs stand disqualified for anti-party activities.
A bench of Chief Justice Justice NV Ramana, Justices Krishna Murari and Hima Kohli was informed there is no split in the political party and rather, there is a dispute over its leadership, which can be said to be an "intra-party" dispute.
The apex court was hearing arguments in the cases filed by Uddhav Thackeray-led camp and the Eknath Shinde group relating to Maharashtra political crisis. The bench heard detailed arguments from both sides and posted it for further hearing on Thursday.
Senior advocate Harish Salve appearing for the Shinde group argued that the anti-defection law is not a weapon for the leaders who have lost the numbers to lock their members.
Salve said, "In India, we confuse political parties with some leaders. I belong to Shiv Sena. My Chief Minister refuses to meet me, I am not arguing facts, giving theoretical facts. I want a change of Chief Minister. That is not anti-party, that is intra-party. If there are a larger number of MLAs who are not satisfied with the way the Chief Minister is functioning and want a change, why can they not say that there should be a fresh leadership contest?"
To this, the CJI asked Salve why cannot these members form a new party saying the leader did not meet them.
Salve replied that Shinde and others are within the party. "I am a dissenting member within the party. I am part of Shiv Sena. Within the party, there has to be a democracy. I am saying that there are two groups within the Political Party," Salve said representing the Shinde group.
CJI Ramana asked Salve what is the purpose of the Shinde group approaching the Election Commission.
Salve said after the Chief Minister's resignation, there are political developments. "Brihanmumbai Municipal Corporation (BMC) election is near... Who should get the symbol?" he said.
Shinde group had approached the Election Commission claiming recognition as 'real' Shiv Sena. The move was challenged by Uddhav Thackeray's camp in the apex court and they sought to stay on the proceedings before the poll panel.
Senior advocate Kapil Sibal, representing the Thackeray camp, said that the Shinde group's argument claim that they are the original party is "not permissible". "They admit before the Election Commission that there is a split," he said.
Sibal said the Shinde group was called for a party meeting, they went to Surat and then to Guwahati. "They wrote to Deputy Speaker, they appointed their Whip. By their conduct, Shinde group has given up the party membership, they cannot claim to be an original party, the tenth schedule does not allow that," Sibal submitted.
"You cannot claim that you are the political party. You say you are the political party sitting in Guwahati. A political party is decided by the Election Commission. You cannot declare that sitting in Guwahati," he further said.
Shinde group's argument is that they have the majority, but the majority is not recognised by the tenth schedule. Any form of a split is violative of the tenth schedule, he added.
"Even today they recognised Uddhav Thackeray as the President of the official party. Even in the petition, they recognise that" he argued.
"What is being done today is to use the tenth schedule to encourage defection. If this is permitted, the majority can be used to topple any government. Is that the purpose of the tenth schedule? To instigate and legitimise defections," asked Sibal.
Every act of theirs amounts to voluntary giving up party membership, Sibal said. If they are defectors, it will relate back to their conduct when they first gave up party membership, so all the subsequent proceedings will be illegal - the election of Speaker, Chief Minister, calling of house, etc, all illegal, Sibal argued.
Sibal said he hasn't seen in the history of this court that in the tenth schedule case a party comes and says they have given membership of the party. That is why conduct has to be seen to decide whether membership has been given up, he contended.
Senior advocate Abhishek Manu Singhvi also representing the Thackeray camp argued that defection is a Constitutional sin. "The game plan (of Shinde camp) is not only to run a government in Maharashtra but also to get legitimacy by getting some orders from the Election Commission and delaying the present proceedings. They are trying to legitimise all this by seeking a declaration from ECI that they are the real party," Singhvi added.
He contended, "The Speaker has not moved a small finger on our complaints pending since June 21, but the Speaker promptly acts on their complaints. The Speaker deciding the disqualification is worse than having a premeditated result."
Senior advocate Neeraj Kishan Kaul representing the Shinde group said an application has been moved by the Thackeray camp to restrain the Election Commission from deciding who is the 'real Shiv Sena', it is the Commission's exclusive jurisdiction to decide.
An argument is sought to be made by the other side that just because the disqualification is pending, which is the sole jurisdiction of the Speaker, in the meantime the Election Commission should not exercise its jurisdiction, but these two are unrelated issues, Kaul argued.
Senior advocate Mahesh Jethmalani, also appearing for the Shinde group argued that the new government came in not because the Chief Minister was defeated in the floor test, it was because he resigned. If a Chief Minister refuses to take the floor test, it has to be presumed he does not have the majority, he said.
The previous government did not elect a Speaker for over one year, he said. The Constitution mandates that the new government must elect Speaker and it elected a Speaker after a contest, it was a majority of 154-99, said Jethmalani.
"The decision of the full house cannot be a matter for judicial review. Let the constitutionally and lawfully elected Speaker decide," he said.
Earlier, the Supreme Court three-judge bench had said that some of the issues involved in the Maharashtra political crisis may require to a larger Constitutional bench for consideration
It had also asked the Speaker of the Maharashtra Legislative Assembly, Rahul Narwekar not to take any action on the new disqualification notices issued against the members of Shiv Sena.
There are various petitions pending before the apex court filed by both the factions of Shiv Sena.
Uddhav Thackeray-led faction had approached the top court challenging the Maharashtra Governor Bhagat Singh Koshiyari's decision to invite Eknath Shinde to form the government and also the Speaker's election and floor test. Recently they had challenged the Shinde group approaching poll panel claiming they are 'real Shiv Sena'.
They had also challenged the newly appointed Maharashtra Assembly Speaker's action recognising the whip of Chief Minister Eknath Shinde group as the whip of Shiv Sena. The plea said the newly appointed Speaker has no jurisdiction to recognise whips nominated by Shinde as Uddhav Thackeray is still the head of the Shiv Sena official party.
Thackeray camp's Sunil Prabhu had filed plea seeking suspension from the Maharashtra Assembly of new Chief Minister Eknath Shinde and 15 rebel MLAs against whom disqualification pleas are pending.
Shinde group's challenged the disqualification notices issued by the Deputy Speaker to 16 rebel MLAs as well as the appointment of Ajay Choudhary as Shiv Sena Legislature Party leader, is also pending before the apex court.
On June 29, the top court gave a go-ahead to the floor test in the Maharashtra Assembly on June 30. Refusing to stay the Maharashtra Governor's direction to the then Chief Minister Uddhav Thackeray to prove his majority support on the floor of the House on June 30, the bench had issued notice on Prabhu's plea against floor test.
After the apex court's order, Uddhav Thackeray announced his resignation as the Chief Minister and Eknath Shinde was later sworn in as the Chief Minister.
On June 27, the top court granted interim relief to Shinde and other rebel MLAs to file their reply on disqualification notices issued to them by Deputy Speaker by July 12. Earlier, Deputy Speaker had granted them time to file a reply by June 27.
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