The Supreme Court on Wednesday made a crucial observation in its final hearing of the Uddhav Thackeray camp of the Shiv Sena's plea challenging the Maharashtra Speaker's refusal to disqualify its rebel MLAs who had jumped to the Eknath Shinde faction under the 10th Schedule.
The SC was also hearing a plea challenging the Election Commission's (EC) decision that recognised the Eknath Shinde camp as the official Shiv Sena in 2023 and allowed it to be the sole user of the 'bow and arrow' symbol.
A bench of CJI Surya Kant, Justice Joymalya Bagchi, and Justice V. Mohana orally observed that a political party has subsisting control over a legislature party.
They also added that any decision of the political party, would prevail over the will of the majority of the legislature party, as per a LiveLaw report.
This comes after senior advocate Kapil Sibal, appearing for the Thackeray camp, noted that the Tenth Schedule recognises mergers with another political party, but not a 'split'.
Reiterating its stand in the Subhash Desai v. Government of Maharashtra case, in which a Constitution Bench of the SC had held that the Maharashtra Governor's decision to call a floor test after the Shiv Sena split was wrong, but Uddhav Thackeray could not be reinstated to his former position, as he had resigned before facing the floor test.
Sibal also claimed that the question before the ECI was not about the split of a 'political' party, but rather, a 'legislature' party.
In that regard, the apex court noted that the EC's 2023 recognition of the Shinde faction as the real Shiv Sena, based on the reasoning that the latter had a legislative majority, was also flawed.
"It should be something to do with the political party", said Justice Bagchi, in response to the EC's decision.
This led to CJI Surya Kant noting that the concept of a "majority" itself was a grey area under these circumstances, but Sibal noted that Supreme Court's own judgment in the Sadiq Ali v. Election Commission of India (1972) case had already answered such issues by laying down tests to determine which faction had the majority.
The matter will be heard further at 2 PM on Thursday.
