Thackeray v Shinde | Documents Produced By The Thackeray Faction Are Brazenly Fabricated: Senior Advocate Harish Salve Argues Before Apex Court

While hearing the Uddhav Thackeray faction's Special Leave Petition challenging Maharashtra Assembly Speaker Rahul Narwekar's order declaring the Shiv Sena bloc led by Chief Minister Eknath Shinde as the "real political party" after the outfit's split in June 2022, Senior Advocate Harish Salve, appearing for the Shinde Faction, told the Supreme Court that "documents produced by the Thackeray faction are brazenly fabricated."

Salve quoted from the Speaker's disqualification order: "On the comparison of the original attendance sheet produced along with an affidavit of examination in-chief and a copy of the attendance sheet produced and verified in a true copy along with the petition reveal they do not match and their are clear discrepancies."

He added, "A copy claimed to be the original payment and attendance sheet has a handwritten note, whereas the copy verified in the original produced with the petition does not have a date. Further, it appears to be noted that Prabhu in the cross-examination states that the document in the attendance sheet...is in fact the register of MLAs to whom the writ was served...Some of the MLAs who purportedly signed the resolution.. that there are discrepancies...."

Senior Advocate Mahesh Jethmalani also accused the Thackeray faction of forging documents. He said, "We are filing an application, there is a lot of forgery in the matter." 

A bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra summoned the original documents after the Shinde faction alleged forgery in the records by the Thackeray camp.

The Bench asked Shinde and his MLAs to file a response positively on or before April 1, and listed the plea for further hearing on April 8. It also kept the issue of maintainability of the petition open.

At the outset, Senior Advocate Kapil Sibal, appearing for Sunil Prabhu (Thackeray Fraction), submitted, "The term of the assembly itself expires in October-November, so time is of the essence in any case. Notice has been issued. They (Eknath Shinde and others) haven't yet filed a reply. The matter must be expeditiously decided; otherwise, whole matter becomes influctuous."

Sibal added, "They go to the High Court, and they are now wanting your Lordships to send us back to the High Court, this will never be over. In any case, we have a Constitutional Right to come under Articles 136, 32, and 226." He insisted that this matter be decided as quickly as possible.

To this, the CJI said, "We will now have to set down some time schedule." 

On January 15, the Uddhav Thackeray faction of the Shiv Sena moved the Supreme Court challenging Maharashtra Legislative Assembly Speaker Rahul Narwekar's order declaring the Sena bloc led by Chief Minister Eknath Shinde as the "real political party" after its split in June 2022. The speaker had also rejected the Thackeray faction's plea to disqualify 16 MLAs of the ruling camp, including Shinde.

In his ruling on the disqualification petitions on January 10, the speaker had not disqualified any MLA from the rival camps. The ruling further cemented Shinde's position as the Chief Minister, 18 months after he led a rebellion against Thackeray, and added to his political heft in the ruling coalition, which also consists of the BJP and the NCP (Ajit Pawar group), ahead of the Lok Sabha polls in summer and state assembly elections due in the second half of 2024.

Narwekar had said that no party leadership can use provisions of the 10th Schedule of the Constitution (anti-defection law) to quell dissent or indiscipline within a party. The Shinde group had the support of 37 out of the total 54 Sena MLAs when party split in June 2022, the speaker had noted. The Election Commission had given the 'Shiv Sena' name and 'bow and arrow' symbol to the Shinde-led faction in early 2023.

In his order on the disqualification petitions filed by Shinde-led Sena and the rival Thackeray faction against each other's MLAs, Narwekar had said Sunil Prabhu of the Sena (UBT) ceased to be the whip from June 21, 2022 (when the party split) and legislator Bharat Gogawale of the Shinde group became the authorised whip. 

"All the petitions seeking disqualification of MLAs are rejected. No MLA is being disqualified," Narwekar had said. The speaker had also held that the Shiv Sena 'pramukh' (chief) did not have the power to remove any leader from the party. He did not accept the argument that the will of the party chief and the will of the party were synonymous.

The 1999 party constitution submitted to the Election Commission was the valid constitution for deciding the issues and the Thackeray group's contention that the amended constitution of 2018 should be relied upon was not acceptable, he had added.

Appearances:

Petitioner: Senior Advocate Kapil Sibal, Senior Advocate Abhishek Manu Singhavi and Senior Advocate Devadatt Kamat

Respondents: Senior Advocate Harish Salve, Senior Advocate Mukul Rohatgi and Senior Advocate Mahesh Jethmalani 

Cause Title: Sunil Prabhu v. Eknath Shinde and Ors. [SLP(C) No. 001644 - 001662 / 2024]