In February last year, the Election Commission (EC) had recognised the Shinde camp to be the real Shiv Sena, and allotted the party’s ‘bow and arrow’ symbol to it on the basis of the party’s legislative strength.
Reading out the operative part of his judgment after months of hearing both sides, speaker Narwekar, a BJP MLA, said, “There is no consensus on the constitution submitted to EC… parties have different points of view on the leadership structure, which has to be taken into consideration. The only aspect is legislative strength.”
“Which faction is the real political party is clear from the legislative majority as of when the rival factions emerged,” Narwekar read from his order.
He determined 21 June 2022 to be the date of the split, and said that, according to the records available with the legislative secretariat, the Shinde faction had an overwhelming majority — 37 of 55 MLAs — at the time.
On this basis, Narwekar also upheld the whip of Bharat Gogawale, a Shinde faction MLA, and rejected the whip of Sunil Prabhu, an MLA from the Shiv Sena (UBT).
In dismissing the disqualification petitions that the two groups had filed against each other, the speaker said the grounds cited by both sides were mere allegations, and that there was no clear evidence of a whip being served on MLAs in either faction.
The speaker also ruled that the will of the party chief cannot be considered to be synonymous with the will of the party.
Eknath Shinde had rebelled against the Uddhav Thackeray-led Shiv Sena in June 2022 along with 39 other MLAs, causing a split in the party, and toppling the Thackeray-led Maha Vikas Aghadi (MVA) government, comprising the undivided Shiv Sena, undivided Nationalist Congress Party (NCP) and the Congress.
The Shinde faction then joined the Bharatiya Janata Party (BJP) to form a government with Shinde as Chief Minister. The two factions filed disqualification petitions against each other.
In May last year, the Supreme Court put the ball in the speaker’s court to decide on the disqualification petitions.
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The roots of the dispute
Within hours of Shinde’s rebellion in June, the Thackeray group passed a resolution removing the former as the leader of the Shiv Sena legislative party and appointing party MLA Ajay Chaudhari in his place. The Thackeray-led party also appointed Sunil Prabhu as its chief whip.
Around the same time, the Shinde faction passed a resolution saying Shinde will continue to lead the legislative party, and appointed MLA Bharat Gogawale as the party’s chief whip. The Thackeray faction first filed disqualification pleas against the first set of 16 MLAs that rebelled and did not attend a meeting convened by Prabhu as the whip. Subsequently, both sides filed disqualification petitions against each other.
The Supreme Court in its May ruling said that it could not restore the MVA government as Thackeray had quit as CM without facing a floor test.
The court, however, raised questions about how the Shinde government was formed, including slamming the then governor Bhagat Singh Koshyari’s decision in asking the MVA government to face a floor test as “not justified”.
It also criticised Narwekar’s decision to recognise Gogawale from the Shinde camp as the Shiv Sena’s chief whip as “illegal” as it was taken without a proper inquiry into which faction of the Shiv Sena was the legitimate party.
It, thus, directed the speaker to conduct a proper inquiry and decide on the disqualification pleas.
Constitution, leadership structure, and party’s will
Narwekar said the Shiv Sena (UBT) was relying on a supposedly amended 2018 constitution of the party, while the Shinde-led Shiv Sena contended that the constitution of 1999 should be the one to be taken on record as the 2018 constitution was never submitted to the Election Commission.
“If both factions have submitted different constitutions, what should be taken into account is the constitution filed to the EC before the dispute arose… Prima facie it is evident from records that the 1999 constitution was the one that was submitted to EC by the Shiv Sena before rival factions emerged,” Narwekar said.
The speaker put on record that the Shinde faction had alleged that no organisational elections were held in 2018 to determine the leadership structure, and all candidates were simply declared winners unopposed. However, Narwekar said his jurisdiction was limited to the record available with the Election Commission, and so the 2018 leadership structure should be considered the relevant leadership structure in the case.
He went on to point out that it was inconsistent with the 1999 constitution. The 2018 leadership structure mentions Shiv Sena paksha pramukh (party chief) as the highest office, while the 1999 constitution distinguishes the rashtriya karyakarini (national executive) as the highest office. The number of members specified in this national executive, and other posts and designations, also differ, the speaker noted.
“It can be concluded that the 2018 leadership structure cannot be taken as the yardstick to determine which party is the real one,” Narwekar said.
Narwekar said, according to the submission of the Shiv Sena (UBT), the will of the party chief is synonymous with the will of the political party. He, however, noted that the Shiv Sena constitution of 1999 says the party chief is not the highest authority, and so their will being synonymous with the political party’s will “cannot be accepted”.
Moreover, he said, if the contention that the will of the party chief is the will of the party is accepted, then, in a position where the party president defects, he can escape the law of disqualification by simply claiming it is the will of the party.
“It will also mean that party president can seek disqualification of any member who questions him. This will go against intra party dissent,” Narwekar said.
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Disqualification petitions based on ‘allegations’
The speaker quashed the disqualification petitions filed by the Shiv Sena (UBT) against the Shinde faction mainly on his preliminary observations that the latter is the real Shiv Sena and the Thackeray faction’s whip doesn’t hold.
He, however, said, the disqualification petitions stood no chance even without these conclusions. For instance, he said the Shiv Sena (UBT) assertion that Shinde faction leaders had gone incommunicado is a mere allegation, and that there was evidence to show that Thackeray faction leaders such as Milind Narvekar and MLC Ravindra Phatak had travelled to Surat to meet the Shinde faction members.
The speaker also said that there was no evidence to show that Shinde faction members were informed about a meeting called by the Thackeray faction on 21 June 2022, which the latter claims the former did not attend, allegedly in defiance of the whip’s orders.
“The only material is a WhatsApp message… It is abundantly clear that none of the respondents were ever served any notice for any meeting on 21 June 2022,” Narwekar said.
He further said that non-attendance of a meeting cannot be considered as voluntarily giving up the party’s membership, and, at the most, can be considered to be an act of dissent within the party.
The disqualification petitions against the MLAs of the Shiv Sena (UBT), too, were dismissed on similar grounds — lack of evidence of a whip being served.
“Though the petitioner (Shinde faction) tried to show that the said whip was served and delivered, he has failed to prove the service of the whip to each and every MLA. I have found major inconsistencies with the answers about the physical service of the whip,” Narwekar said.
(Edited by Sunanda Ranjan)
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