Another petition, filed by Uddhav Thackeray, was also listed before the bench, which challenges the ECI decision that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol.
In the course of the hearing, Justice Bagchi asked whether the Court can assume the jurisdiction of the Speaker.
However, he questioned whether Shinde and other MLAs could be consequentially declared disqualified?
At this point, Kamat categorically stated that in judicial precedents where disqualifications were upheld, the concerned MLAs were declared disqualified.
Sibal as well argued that Shinde could not be allowed the benefit of equity based on an illegitimate act.
In the Shiv Sena matter, Justice Joymalya Bagchi of the Supreme Court today asked the Uddhav Thackeray faction whether Eknath Shinde (and other splinter group MLAs) can be consequentially declared disqualified as per the anti-defection law under the Tenth Schedule of the Constitution if the Maharashtra Speaker's order refusing to disqualify them is set aside.
The judge posed to Senior Advocate Devadatt Kamat, appearing along with Senior Advocate Kapil Sibal for the UBT faction, whether the Court can today return a finding which incurs Shinde's disqualification even though the Maharashtra Speaker did not disqualify him and Shinde has been since re-elected pursuant to fresh elections.
"Can we declare him (Shinde) disqualified today? Can we assume the role of Speaker and hold him disqualified?" Justice Bagchi asked.
A bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana was hearing the plea filed by Uddhav Thackeray faction member Sunil Prabhu challenging the Maharashtra Speaker's refusal to disqualify MLAs of the Eknath Shinde faction under the 10th Schedule. Another petition, filed by Uddhav Thackeray, was also listed before the bench, which challenges the ECI decision that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol.
In the course of the hearing, Justice Bagchi asked whether the Court can assume the jurisdiction of the Speaker. He further drew a parallel between the instant issue and a hypothetical case where disproportionate punishment has been awarded to someone in disciplinary proceedings.
"We can quash the punishment, but can we impose it? We have to remand the matter to the competent authority to take a decision...there is no dispute that Mr Shinde had legislative majority, but the question is, when he assumed the legislative majority, did he remain in the party?" the judge remarked.
Kamat responded to the observation, stating that if the Speaker, who has been equated to an Election Tribunal, passes an order that suffers from perversity, the Court must interfere in exercise of the power of judicial review. He said that the Court can also grant relief in such a situation and highlighted that if the order of the Speaker is set aside, the findings will have a clear effect on the election symbol dispute.
"This court has already taken a view that the final verdict regarding disqualification is only ex post facto recognition. If Tribunal has acted with perversity, your lordships will correct in judicial review. And your lordships can also give relief", Kamat submitted.
Justice Bagchi agreed with the submission that if the approach of the Speaker was not in accordance with law and ignored the principles laid down in Subhash Desai case (by the Constitution bench), the order could be set aside. However, he questioned whether Shinde and other MLAs could be consequentially declared disqualified?
At this point, Kamat categorically stated that in judicial precedents where disqualifications were upheld, the concerned MLAs were declared disqualified.
Sibal as well argued that Shinde could not be allowed the benefit of equity based on an illegitimate act. “The irony is you base your legitimacy on an illegitimate act. And that illegitimacy continues for years. And you will say to the court now that it has continued for years, therefore give legitimacy. it's like unauthorized construction on govt land.”
He also contended that the 39 splinter MLAs appended the 2018 party constitution to their affidavits before the Speaker. Later, as an afterthought, they called the same “lawyers' mistake”. Sibal also submitted that the Speaker's decision was substantially contrary to the Constitution Bench decision in Subhash Desai.
Referring to Rajendra Singh Rana v. Swami Prasad Maurya case (related to 2003 split in the Bahujan Samaj Party), the senior counsel contended that a splinter MLA's mere meeting with the Governor, alongwith the opposition party, amounts to violation of para 2(1)(b) of the 10th schedule. Highlighting the MLAs' travel to Surat and Guwahati, followed by their merging with the BJP, Sibal said that this was a classic case of defection and the Court must nip in the bid the "sin of defection".
The hearing will continue tomorrow at 2 pm.
Case : Sunil Prabhu v. Eknath Shinde SLP(C) No. 1644-1662/2024 (and connected case)
#SupremeCourt to shortly hear the 2024 petition filed by #ShivSena (Uddhav Thackeray) challenging the refusal of the #MaharashtraSpeaker to disqualify the MLAs of Shiv Sena (Eknath Shinde) under the 10th schedule of the Constitution
Bench: CJI Surya Kant, J Joymalya Bagchi and J… pic.twitter.com/h4QEVMNked — Live Law (@LiveLawIndia) August 19, 2026
Previous reports :
Shiv Sena Row | Speaker Cannot Equate Legislative Majority With Political Party: Kapil Sibal To Supreme Court
Shiv Sena Dispute | If ECI Considers Events After Symbol Application, It Will Encourage Defections: Sibal Tells Supreme Court
Allowing Legislative Wing Of A Political Party To Split & Topple Govt Makes Mockery Of Democracy: Shiv Sena UBT To Supreme Court
Shiv Sena Case | Political Party's Decision Must Prevail Over Legislative Party's Majority, Says Supreme Court In Hearing
