A Majority Alone Can’t Determine Which Rival Faction In A Political Party Is In Majority And Can Claim To Be The Genuine Party: Thackeray To SC

Case: Subhash Desai vs Principal Secretary, Governor of Maharashtra and ors

Constitution bench: Chief Justice of India (CJI) DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli, and PS Narasimha

On Tuesday, the Uddhav Thackeray faction of the Shiv Sena argued before the Supreme Court's Constitution bench that the legislative wing's majority cannot determine which of the competing factions within a political party holds the majority and, therefore, has the right to claim as the authentic party. This statement was made in the context of the ongoing case between the Uddhav Thackeray and Eknath Shinde factions of the Shiv Sena, where both factions are claiming to be the true representative of the party.

Senior Advocate Kapil Sibal, representing the Thackery faction, stated that having a majority of MLAs alone does not give a faction the right to claim that they represent the genuine party. He warned that accepting such a proposition would have serious consequences, such as the overthrow of democratically elected governments.

A group of petitions relating to the 2022 political crisis that resulted in a change of power in a Western state is currently being heard by the Constitution bench. On February 17, the Election Commission recognized the Shinde faction as the genuine Shiv Sena based on their majority in the Maharashtra assembly. The Shinde faction has 40 MLAs, while the Thackeray faction has 15 MLAs in the assembly.

The SC is examining several legal issues, including the authority of the speaker to decide on the disqualification of MLAs, the power of the governor, and the faction of a political party that can claim to be the legitimate party in the event of a split within the MLAs (legislative wing) of the party.

Sibal argued that if a split within the legislative wing of a political party is used to determine the genuine political party, it could lead to the overthrow of democratically elected governments. He also stated that MLAs cannot vote against their political party's decision and that a merger protected by the tenth schedule is distinct from the present case. Sibal noted that the Shinde faction has claimed to be the legitimate Shiv Sena based solely on their numbers in the assembly, without alleging a merger. Additionally, Sibal raised concern about the Governor swearing in members with disqualification proceedings pending.

Senior Advocate Neeraj Kishan Kaul of the Shinde faction highlighted that the new speaker had enough numbers to be sworn in, even if the 39 MLAs from his camp were not counted.

Lastly, Sibal warned that in the present situation, any government could be overthrown without a recognized split in the political party. He also stated that such mass defections are detrimental to the country's political structure and that elected governments cannot be overthrown in this manner.