Maharashtra Chief Minister Eknath Shinde's counsel on Wednesday told the Supreme Court that there is no split in the political party rather, there is a dispute over its leadership, which can be said to be an "intra-party" dispute, not falling within the scope of defection. Shinde's counsel added, "no two Shiv Senas, two groups in a political party..."
A bench headed by Chief Justice N.V. Ramana and comprising Justices Krishna Murari and Hima Kohli was hearing petitions filed by the Shiv Sena and its rebel MLAs on constitutional issues of splits, merger, defection, and disqualification.
After hearing arguments, the top court asked Shinde's counsel to redraft the submissions on petitions filed by the Uddhav Thackeray faction on constitutional issues, which arise out of the political crisis in Maharashtra.
Senior advocate Kapil Sibal, representing the Thackeray faction, said the rebel MLAs, Shinde's faction, can save themselves from disqualification under the tenth schedule of the Constitution only by merging the splinter group with another party, otherwise there is no defence for them. He added that the rebel group violated the chief whip, and they are disqualified as per the tenth schedule.
Senior advocate Harish Salve, representing Eknath Shinde, said there can be a dissenting member in the political party and there has to be democracy within the party. He said, "No two Shiv Senas, two groups in a political party..."
Salve argued that there is no split in the party, instead there is a dispute over its leadership, which can be termed an "intra-party" dispute, not falling within the scope of defection. He said the anti-defection law will apply only to those who have given up the membership of a political party, and his client has not given up the original membership of the party.
Salve said anti-defection law is not a weapon for leaders to lock up members after losing the majority.
He added that 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't they say there should be a fresh leadership contest? And, changing CM is not anti-party, rather intra-party.
Chief Justice queried Salve, can you form a new party saying the leader did not meet you? Salve replied, "I am within the party...I am the dissenting member within the party," and also cited the split in Congress in 1969.
The Chief Justice further queried Salve, "What is the purpose of you approaching the ECI (Election Commission of India)?" Salve said after Thackeray resigned there were political developments and municipal elections were near, and who should get the symbol?
Salve added that it is not the case that the MLAs have voluntarily given up their party's membership. "Not a case of defection... Today it is the case of intra-party rebellion and nobody has given voluntary membership from the party," he submitted.
The top court, asking Salve to redraft the questions of law, scheduled the matter for further hearing on Thursday.