New Delhi: The Supreme Court witnessed a significant legal argument on Thursday over whether the court itself can disqualify the MLAs who joined Eknath Shinde after the split in the Shiv Sena, instead of leaving the matter to the Speaker of the Maharashtra Legislative Assembly.

Senior advocate Devdutt Kamat, appearing for the Uddhav Thackeray faction, argued that in exceptional circumstances, where the relevant facts are clearly established, the Supreme Court can itself determine the disqualification of legislators. He maintained that under the anti-defection law, an MLA loses membership from the very day the act of defection takes place, and that the court can still record such a legal finding.

Kamat also questioned the manner in which the Speaker handled the disqualification proceedings. He argued that the delay in deciding the petitions allowed the concerned MLAs to continue enjoying the benefits arising from the alleged defection. Once a member is disqualified, his or her membership ceases, but the delay in the present case meant that the legislators had already enjoyed the benefits of defection and continued to do so, he submitted.

A key part of Kamat’s argument concerned the Election Commission’s decision to recognise the Shinde faction as the Shiv Sena and allot it the party’s bow-and-arrow symbol. He pointed out that the Election Commission had relied on legislative majority while deciding the issue. If the court concludes that the MLAs had defected, the foundation on which the Election Commission’s decision was based would itself be weakened, he argued.

Kamat urged the court to conclusively determine whether the MLAs had committed an act of defection. If defection is established, he argued, one of the principal grounds on which the Election Commission granted the party name and symbol to the Shinde faction would cease to exist.

To support his contention that the judiciary can, in exceptional circumstances, itself decide disqualification, Kamat referred to the Supreme Court’s judgment in the Rajendra Singh Rana case. He submitted that the court cannot allow the constitutional scheme under the Tenth Schedule, which deals with defection, to be rendered ineffective by prolonged inaction by the Speaker.

According to Kamat, where the Speaker fails to act, the legislative term is nearing its end and sending the matter back would only prolong the proceedings, the Supreme Court can itself pass an appropriate order to ensure complete justice.

During the hearing, the Bench asked, “Disqualified for what?”

Responding to the question, Kamat said the legal position he was advancing was that once the act of defection occurred, the concerned member lost membership from that very date. While granting consequential relief at this stage may not be practically possible, the court can still determine the date from which the disqualification legally took effect, he submitted.

Kamat also referred to the earlier Subhash Desai case, stating that the Thackeray faction had previously sought a decision on disqualification from the Supreme Court itself because of its lack of confidence in the Speaker. He pointed out that the Speaker had taken several months to decide the matter, forcing the Thackeray faction to approach the Supreme Court twice. The court had eventually directed the Speaker to decide the petitions, leading to the Speaker’s decision in January 2024.

The senior advocate further argued that where there has been prolonged delay, incorrect criteria have been applied while assessing evidence, and the Assembly’s tenure is limited, sending the matter back to the Speaker may not serve the ends of justice.

“Complete justice is the ultimate consideration,” Kamat argued, maintaining that the Supreme Court’s powers cannot be confined to technical remedies where doing so would defeat the purpose of the anti-defection law.

The central thrust of the Thackeray faction’s argument is that if the court holds that the Shinde faction MLAs had defected, the legal foundation of the recognition of the Shinde faction as the Shiv Sena and the allotment of the party symbol could also come under question. Kamat therefore urged the Supreme Court to give a final determination on whether the MLAs had defected and the date from which their disqualification should operate.