Real 'Sena' battle: 'Sin' of defection should not be rewarded, Uddhav camp tells SC
The Supreme Court heard final arguments in the long-running dispute over the Shiv Sena party name and symbol, arising from the 2022 split in the party's legislature wing.
The petitioner faction argued that constitutional and statutory provisions on defection should not be interpreted in a manner that rewards a group of legislators for breaking away from the party organisation.
Arguments before the court distinguished between a legislative "split" or "merger" for anti-defection purposes and a disqualification proceeding under the Tenth Schedule, and touched on how the Election Commission determines which faction represents the "real" party for symbol allocation.
The bench is separately examining two connected matters — the Speaker's decision declining to disqualify the rival faction's legislators, and the Election Commission's decision awarding the party symbol to that faction — with the hearing set to continue on 18 August.
The Tenth Schedule (Anti-Defection Law)
The Tenth Schedule was inserted into the Constitution by the 52nd Amendment Act, 1985, providing for disqualification of Members of Parliament and state legislatures who voluntarily give up membership of the party on whose ticket they were elected, or who vote/abstain against the party whip on a confidence matter without prior permission. Its object is to curb opportunistic defection while still permitting genuine mergers of parties.
Key Details
- Inserted by the 52nd Amendment Act, 1985; applies to both Houses of Parliament and state legislatures.
- Grounds for disqualification: voluntarily giving up party membership, or defying the party whip without condonation.
- The Speaker (or Chairman, for the Rajya Sabha/Legislative Council) is the deciding authority on disqualification petitions under Paragraph 6.
- Originally, Paragraph 3 exempted a "split" involving one-third of a legislature party's members from disqualification; this was deleted by the 91st Amendment Act, 2003, leaving only a "merger" of at least two-thirds of members (Paragraph 4) as a valid, disqualification-free exit route.
The petitioner faction's argument that the "sin of defection should not be rewarded" directly invokes this post-2003 legal position — since the split exemption no longer exists, a breakaway group not meeting the two-thirds merger threshold is, in principle, liable to disqualification rather than protected as a legitimate split.
Kihoto Hollohan v. Zachillhu (1992) — Judicial Review of the Speaker's Decision
This five-judge Constitution Bench decision upheld the constitutional validity of the Tenth Schedule but struck down Paragraph 7, which had sought to bar judicial review of the Speaker's disqualification orders. The Court held that while the Speaker acts as a quasi-judicial tribunal under the Schedule, this decision remains subject to judicial review on grounds such as mala fide exercise of power, perversity, or violation of constitutional mandates.
Key Details
- Decided 18 February 1992 by a five-judge bench.
- Upheld the Tenth Schedule's substantive validity; struck down Paragraph 7 (bar on judicial review) as it required ratification by state legislatures under the proviso to Article 368(2), which had not been done.
- Established that judicial review is part of the Constitution's basic structure and applies even to the Speaker's Tenth Schedule decisions.
It is this precedent that allows the current dispute — arising from the Speaker's decision not to disqualify the rival faction's legislators — to be litigated before the Supreme Court at all, rather than being treated as final and unreviewable.
Subhash Desai v. Governor of Maharashtra (2023) and the Speaker's Role
A five-judge Constitution Bench (2023) arising from the same underlying political split examined whether a pending resolution to remove the Speaker affects the Speaker's power to decide disqualification petitions, and the scope of the Governor's discretion in inviting a party/faction to form the government. The Bench held that the Speaker's authority to decide disqualification petitions is not automatically suspended by a pending removal motion, but referred an earlier ruling on this question (Nabam Rebia, 2016) to a larger bench for reconsideration.
Key Details
- Decided May 2023 by a Constitution Bench headed by the Chief Justice of India.
- Held that the Governor's discretion to invite a party to form government is not unlimited and cannot be used to resolve internal party disputes.
- Referred the correctness of Nabam Rebia v. Deputy Speaker (2016) — which had held disqualification proceedings cannot continue while a Speaker-removal resolution is pending — to a larger bench.
This 2023 ruling forms the procedural backdrop against which the Speaker's subsequent decision not to disqualify the rival faction's legislators is now being challenged before the Supreme Court.
Election Symbols (Reservation and Allotment) Order, 1968 — Symbol Disputes Between Factions
Under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968, the Election Commission of India has the power to decide disputes between rival groups of a recognised political party staking claim to the party's name and symbol, and its decision binds all rival factions. In practice, the Commission applies a combined "test of majority" — support within the party's organisational wing (delegates/office-bearers) and its legislative wing (MPs/MLAs) — with legislative-wing strength typically weighing heavily where organisational strength cannot be clearly verified.
Key Details
- Paragraph 15 empowers the ECI to adjudicate symbol disputes for recognised national/state parties; its validity was upheld by the Supreme Court in Sadiq Ali v. Election Commission of India (1971).
- The test of majority draws on both organisational and legislative-wing support, distinct from and separate from the Tenth Schedule disqualification test applied by the Speaker.
- The ECI's 1968 Order operates independently of Tenth Schedule proceedings — a faction can be recognised as the "real" party for symbol purposes even while disqualification questions about its legislators remain pending in court.
The Supreme Court is hearing two distinct legal threads together — the Tenth Schedule disqualification question decided by the Speaker, and the party-symbol question decided by the Election Commission under Paragraph 15 — and the arguments on "reward for defection" go to whether these two separate legal tests should be read consistently with each other.
- Tenth Schedule inserted by the 52nd Amendment Act, 1985.
- 91st Amendment Act, 2003 deleted the one-third "split" exemption (Paragraph 3); only a two-thirds merger (Paragraph 4) is now protected from disqualification.
- Kihoto Hollohan v. Zachillhu decided 18 February 1992 — upheld Tenth Schedule, struck down bar on judicial review (Paragraph 7).
- Subhash Desai v. Governor of Maharashtra decided May 2023 by a Constitution Bench; referred Nabam Rebia (2016) to a larger bench.
- Election Symbols (Reservation and Allotment) Order, 1968, Paragraph 15 — ECI's power to decide party symbol disputes, upheld in Sadiq Ali v. ECI (1971).
- Next hearing in the matter: 18 August.