Anti-defection law cannot be used as weapon against dissenting members, Shinde, other MLAs tell SC

Senior advocate Harish Salve said the anti-defection law is not a weapon for the leaders who have lost the numbers

Maharashtra Chief Minister Eknath Shinde and other supporting MLAs on Wednesday told the Supreme Court that anti-defection law cannot be used as a weapon for leaders of a political party to lock up its members after losing the majority.

An MLA dissenting with the leadership and seeking change is something related to intra-party dispute and does not fall within the Tenth Schedule (anti-defection law) of the Constitution, senior advocate Harish Salve, appearing for the Shinde group contended before a bench presided over by Chief Justice N V Ramana.

Salve further said there is no split in the political party, Shiv Sena and 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.

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"The anti-defection law will apply only to those who have given up the membership of the political party," he said, maintaining that Shinde and other MLAs were within Shiv Sena.

The bench, also comprising Justices Krishna Murari and Hima Kohli, asked Salve to redraft the legal issues for consideration of the matter on Thursday. The court was hearing a batch of petitions filed by Uddhav's group and rival Shinde and other MLAs related to political developments, including the Governor's decision to call for a floor test.

In his submission, Salve further said that if a party member wants a change of the Chief Minister, that is not anti-party.

"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 they not say that there should be a fresh leadership contest," he asked.

On this, the CJI asked Salve whether a member can form a new party saying that the leader did not meet him.

"I am within the party. I am a dissenting member within the party," Salve said.

"I am part of Shiv Sena. Within the party, there has to be a democracy. I am saying that there are two groups within the political party…It has happened in Congress in 1969. We're all the same political party but the question is who is the leader of the Political Party. There is no judgment saying your membership is vacated because you did not turn up for a meeting."

The CJI then inquired what is the purpose of Shinde faction approaching the Election Commission.

Salve responded that after Uddhav's resignation as the CM, there were several political developments and the BMC elections are also approaching.

Senior Advocate Mahesh Jethmalani, also for Shinde camp, argued that the new government came in not because the Chief Minister was defeated in the floor test but because he resigned.

Appearing for Maharashtra Governor, Solicitor General Tushar Mehta submitted that the court must consider whether the Tenth Schedule can be "misused" to curb intra-party democracy and to prohibit majority members from exercising their freedom of expression within the party.

During the hearing, senior advocate Kapil Sibal and Abhishek M Singhvi, appearing for Uddhav Thackeray's Shiv Sena contended the group led by Shinde violated the chief whip, so they stood disqualified. Sibal pointed out that protection under the law was not available to them since they did not merge with another political party.