New Delhi, Aug 13 The Uddhav Thackeray-led faction of the Shiv Sena on Thursday told the Supreme Court that provisions of the Constitution cannot be interpreted in a manner that encourages the "very sin" which the anti-defection law sought to prevent.
A bench of Chief Justice Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing arguments on the pleas of the Thackeray-led faction against 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," senior advocate Kapil Sibal, appearing for the Thackeray faction, told the bench during the hearing in the matter on the fifth day.
Sibal said the test in a disqualification case is completely different.
"Split is completely different and disqualification is completely different," he said.
Sibal argued that subsequent events may be taken into account for disqualification but not for considering whether there was a split.
He said the apex court has the opportunity to lay down the law for the country and for the future of democracy.
Sibal said it is a "very sad state of affairs" as whichever party is in power ensures that disqualification is not decided.
When the senior advocate contended that the burden of preserving democracy is on the judiciary, the bench said it is a "collective responsibility".
"We are conscious of our role. The Constitution is lived by the people," the bench observed.
The CJI said, "Let us not underestimate our other institutions. They are also quite committed."
Sibal said ultimately, the law has to be laid down by the apex court. Parliament will keep on passing legislation but those laws can be tested by the judiciary, he said.
The arguments in the matter would continue on August 18.
While hearing the matter on Wednesday, the apex court said it will have to first see whether there had been a split in the Shiv Sena as such a division may originate in the legislature party and the fissure can percolate into the organisation and the primary membership.
Sibal said, "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 questioned the Election Commission's approach in determining whether there was a genuine dispute within the party and whether the faction approaching it had exhausted the internal remedies available under the Shiv Sena's constitution.
Sibal also challenged the Commission's assessment of the Shiv Sena's organisational structure, including the powers of the party chief and the manner in which various organisational posts were filled.
The bench was hearing two pleas filed in 2024 by the Uddhav faction against the poll panel's order allotting the 'bow and arrow' symbol to the Maharashtra Deputy Chief Minister Eknath Shinde-led unit.
The pleas have also challenged the February 17, 2023 order of the poll panel recognising the Shinde faction as the original Shiv Sena.
