NEW DELHI: The Uddhav Thackeray-led Shiv Sena (UBT) on Thursday told the Supreme Court that constitutional provisions cannot be interpreted in a way that encourages the very conduct the anti-defection law was enacted to prevent. Appearing before a bench headed by Chief Justice Surya Kant during the fifth day of hearings on the party symbol dispute, senior advocate Kapil Sibal argued that the Constitution should not be read in a manner that rewards defections and weakens democratic safeguards.A bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing petitions filed by the Thackeray faction challenging the Election Commission’s decision to recognise the Eknath Shinde-led faction as the real Shiv Sena and allot it the party’s name and the ‘bow and arrow’ symbol.“You can’t interpret the provisions of the Constitution to give encouragement to the very sin which the anti-defection law sought to prevent,” Sibal told the bench.Sibal argued that the legal test for disqualification is fundamentally different from the test for determining whether a political party has split. “Split is completely different, and disqualification is completely different,” he said, adding that subsequent events may be relevant in disqualification proceedings but not when deciding whether a split had occurred.He told the court that the case presented an opportunity to lay down the law for the future of Indian democracy. Calling the situation a “very sad state of affairs”, Sibal said governments often ensure that disqualification proceedings remain undecided.When he argued that the burden of preserving democracy rested on the judiciary, the bench responded that it was a “collective responsibility”. “We are conscious of our role. The Constitution is lived by the people,” the bench observed.The Chief Justice added, “Let us not underestimate our other institutions. They are also quite committed.”Sibal replied that while Parliament could continue enacting laws, it was ultimately the Supreme Court that had the authority to interpret and test those laws against the Constitution.The hearing has been adjourned and will continue on 18 August.During Wednesday’s proceedings, the Supreme Court had observed that it would first have to determine whether a split had occurred within the Shiv Sena, noting that a division could originate in the legislature party and later spread through the party organisation and primary membership.Responding to that observation, Sibal argued that a split in the legislature party could not by itself amount to a split in the political party. “As a proposition of law, a split in the political party can never arise merely from a split in the legislature party. That has been decided by the Constitution Bench (in a judgment),” he said.
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He also questioned the Election Commission’s approach in deciding whether there was a genuine dispute within the Shiv Sena and whether the faction approaching it had exhausted the internal remedies available under the party constitution. Sibal challenged the Commission’s assessment of the Shiv Sena’s organisational structure, including the powers of the party chief and the process for appointing organisational office-bearers.The bench is hearing two petitions filed by the Thackeray faction in 2024 challenging the Election Commission’s order allotting the ‘bow and arrow’ symbol to the Eknath Shinde-led faction and the Commission’s 17 February 2023 decision recognising it as the original Shiv Sena.
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