Shinde faction reaping fruits of defection: Sena (UBT) tells SC

The Shiv Sena (UBT) on Thursday told the Supreme Court that the Eknath Shinde-led faction continued to enjoy the “fruits of defection” and the Election Commission granted Shiv Sena’s name and the symbol to them substantially based on the legislative majority test.

The submissions were made before a bench of Chief Justice Surya Kant and justices Joymalya Bagchi and V Mohana, which resumed hearing on the seventh day the challenge of the Uddhav Thackeray faction to the EC’s decision recognising the Shinde-headed group as the “real Shiv Sena” and allotting it the party name and the ‘bow and arrow’ election symbol.
Senior advocate Devadatt Kamat, appearing for the Thackeray faction, said the Shinde group continue to reap the benefits of that defection because the symbols order of the poll panel stood on the basis of the legislative majority test.

“In this case, they have already enjoyed the fruits of defection because the matter could not be heard in time. We are not blaming anybody. But they continue to reap the benefits even today. The symbols order stands based on the legislative majority test,” Kamat said. “Once disqualified, they lose their membership,” Kamat said, adding that the alleged defectors had already benefited from the delay in deciding the disqualification petitions. 

The bench questioned Kamat on the scope of the relief being sought.  “Disqualified from what?” the bench asked. 

Kamat responded that disqualification was a legal consequence flowing from the act of defection and that the court could declare the date from which the members incurred disqualification, even if consequential relief could no longer be effectively granted. 

“It is a legal declaration that the member lost his membership from the date on which the act of defection was committed,” he said.

The senior advocate said that the top court, in the past, itself determined the disqualification in appropriate circumstances rather than remanding the matter to the Speaker.
He referred to the Supreme Court’s judgement in a case and said that the court had previously held that the constitutional scheme under the Tenth Schedule of the Constitution could not be allowed to be undermined by inaction or failure on the part of the Speaker. 

“In extraordinary circumstances, where the Speaker fails to decide, the Supreme Court can itself determine disqualification in the first instance,” Kamat said. He said the circumstances in the present case warranted a similar approach, particularly because the dispute over the party’s identity and election symbol was directly linked to the legislative majority relied upon by the EC. 
“The fruit of the alleged defection which they continue to enjoy today is the party symbol. That symbol rests upon their so-called legislative majority,” he said. 
“We are only urging Your Lordships to decide this issue — whether they have committed defection or not. If they did, one of the principal grounds on which the Election Commission awarded them the symbol disappears,” he said. 

He said that the speaker’s order, which favoured the Shinde camp, was illegal and had a “definitive impact” on the symbol dispute. Kamat said that the EC was not justified in applying the “test of legislative majority” while the legality of the MLAs’ status was still in question. 

On Wednesday, senior advocate Kapil Sibal, also appearing for the Thackeray group, had argued that recognising the Shinde faction as the “real” Shiv Sena would amount to rewarding what he termed a “constitutional sin”. The Shinde group would resume its final arguments on September 2. 

The Thackeray faction concluded its submissions. The bench was hearing two pleas filed in 2024 by the Thackeray faction against the EC’s order allotting the “bow-and-arrow” symbol to the Shinde camp.

The pleas have also challenged the February 17, 2023 order of the poll panel, recognising the Shinde faction as the original Shiv Sena.