The impugned judgements passed by the Constitutional authorities, the Election Commission and the Speaker in the Shiv Sena case, are pending before the apex court for adjudication. A legal point was raised by Uddhav Thackeray, President of the Shiv Sena UBT faction, on its 58th party foundation day regarding the legality of the election for 11 vacant seats in the State Legislative Council which are scheduled on July 12. Earlier elections for the Upper House of the Parliament were held in the month of February, where no such objection was raised by the Shiv Sena UBT faction though it included the vacant seats from Maharashtra. Moreover the one Shiv Sena UBT faction MP seat went vacant.
Now the election for the State Legislative Council in Maharashtra has been notified. The UBT faction has made a representation to the Election Commission to not to proceed with the election process, as the schedule ten proceedings related to Shiv Sena Shinde faction members of the Legislative Assembly is under challenge and the matter is sub judice before the apex court. Further the UBT faction may challenge the same before the Supreme Court. There is a dim possibility of the ECI entertaining the representation of the UBT faction. As per the settled law the apex court also may not interfere if such a petition is filed so as not to interfere in the election process. But if the apex court takes cognisance of the petition, under that circumstance the judgement may be a landmark for the election litigations. An appeal is continuation of a suit which is a settled principle of law. The matter related to the anti-defection law has not been concluded and is pending. In the backdrop of this principle and the above-mentioned circumstances, the court has powers to take a different view other than the settled law.
It will be pertinent to note that the Apex Court has not granted any interim orders, also the Shinde-led Shiv Sena faction by challenging the Speakers order in favour of the UBT faction has raised a preliminary objection before the Supreme Court that the UBT faction ought to have challenged the Speaker’s judgement before the High Court. The Shinde-led Shiv Sena faction’s attempt for an alternate remedy may stand or fail but surely has turned the issue from Constitutional to technicality which resulted in delaying the matter at least up to the Lok Sabha elections. But the fact remains that Constitutional provisions shall prevail. As on the previous date the Supreme Court made it clear that initially it will hear the preliminary objection regarding maintainability and alternate remedy before High Court.
Both the appeals arising out of judgement from the ECI and the Speaker are sub judice before the apex court and may be called an example of ‘Justice delayed is justice denied’. The beneficiary from the delay of the appeals is the Shinde-led Sena faction which is enjoying all the privileges out of the judgement till it attains finality — the symbol, the party name and avoiding the stigma of breach of provisions of Schedule Ten of the Constitution; also, it contested the Lok Sabha election with the name as an original Shiv Sena party. Still the fact remains that the Speaker has not followed the guidelines passed by the Supreme Court while remanding the defection issue to the Speaker as a Tribunal. A Constitutional issue which led to violation of its provisions was referred to the Speaker and the guidelines passed by the apex court were completely overlooked. The conduct of the Speaker as well as the ECI weakens the dignity of a Constitutional office and strengthens the allegations of being politically biased. The apex court may upheld or set aside the judgements in both the cases which shall be binding on both the parties. The matters of Constitutional importance needs to be dealt with on priority when the ruling party has made a mockery of the anti-defection law.
During the Rajya Sabha elections cross voting by Congress MLAs resulted in victory of the Opposition candidate. The victory obtained was not only illegal but also demonstrates that it cannot be immediately rectified with the present provisions of the law. Maharashtra is the worst affected state with unconstitutional administration by the Constitutional authorities. The Deputy Speaker of Maharashtra Legislative Council is herself facing a disqualification proceeding which has not yet begun. The mandatory local body elections are not conducted since the last two years. The local bodies are under the bureaucracy at behest of the ruling parties. The Senate elections for Mumbai University were declared but later cancelled. Constitutional machinery is stalled because of the finality to the disqualification proceedings regarding the two parties split. The split in the lower House of the Parliament in the Shiv Sena went undecided in spite of the UBT faction’s application. The Nationalist Congress Party split though occurred later with the same modus operandi as the Shiv Sena.
Considering the political scenario and circumstances in Maharashtra the petitions sub judice need to be concluded. The Maharashtra assembly tenure is about to expire in the next two to three months; the same may result as infructuous. Ideally if the Supreme Court thinks fit and proper the Legislative Council Elections can be given a Constitutional thought to curb the degradation of politics in Maharashtra. The Constitution under Article 329 prohibits courts from interfering the election process. On the other hand the Constitution has provided powers under article 142 for doing complete justice as well.
Prateek Rajurkar is a practising lawyer at the Bombay High Court, Nagpur Bench. Views are personal
