The Uddhav Thackeray faction of the Shiv Sena told the Supreme Court on Wednesday that party MLAs loyal to Maharashtra Chief Minister Eknath Shinde can save themselves from disqualification under the 10th Schedule of the Constitution only by merging with another political party.
The bench, headed by Chief Justice NV Ramana, asked the Shinde faction, represented in court by senior advocate Harish Salve, to redraft the legal issues of split, merger, defection and disqualification raised in petitions filed by the Thackeray camp that are to be adjudicated upon following the recent political crisis in Maharashtra.
Senior advocate Kapil Sibal, appearing for the Thackeray faction, told the bench there is no constitutional protection for disqualification under the 10th Schedule.
So, you either have to merge or form a new political party, Sibal told the bench, also comprising justices Krishna Murari and Hima Kohli.
Rebutting the arguments, Harish Salve said the anti-defection law is not a weapon for a leader who has lost the confidence of his own party to lock his members and somehow hang on.
Salve said it is not the case where the MLAs have voluntarily given up their membership in the political party.
"The basic premise of anti-defection law is when you leave your political party. Nobody has found any disqualification. Mr Sibal has elaborately demolished a defence which nobody has set up.
"Today, if there is a divide within the party, and you are called for a party meeting, you are not defying a whip in the House...
"It is not a case of defection. Today, it is the case of intra-party rebellion and nobody has given voluntary membership of the party," Salve said.
The top court asked Salve to redraft his submissions on petitions filed by the rival Uddhav Thackeray group on constitutional issues arising from the recent political crisis in the state.
At the outset, Sibal, along with senior advocate A M Singhvi, submitted the Shinde group violated the party's chief whip by not attending a party meeting and stood disqualified in accordance with the provisions of the 10th Schedule.
"Two-thirds go on one side and one-third remains. So, two-thirds cannot say we are the original political party. The Shinde faction had admitted before the Election Commission that there is a split," Sibal said.
"Once you have been elected, it does not mean the umbilical cord with the political party is severed and that you have nothing to do with your political party," he said.
Supporting Sibal's contention, Singhvi said the anti-defection law is being turned on its end.
"The constitutional sin of defection is so grave that they (rebel MLAs) should not be recognised as a government. Majority itself ipso facto (as an inevitable result of an act) becomes the party which the 10th Schedule aims to stop. The end does not justify the means.
"The evil and constitutional sin of defection is so great that it does not recognise the majority. There is nothing except the claim that we are the majority. And all this relates back to the date of defection. The fruits of a poisonous tree cannot be allowed to be tasty," Singhvi said.
Salve disputed the contentions.
"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 CM. That is not anti-party, that is intra-party," Salve contended.
After hearing the submissions, the bench said it will hear the matter on Thursday to decide the issues to be adjudicated upon by it, and asked Salve to redraft the questions of law.
The bench will take it up as the first case on Thursday.