NEW DELHI: Maharashtra speaker Rahul Narwekar’s decision to dismiss the disqualification petitions against chief minister Eknath Shinde and 38 “rebel” Shiv Sena legislators was a “colourable” exercise of power based on “extraneous and irrelevant” considerations, the Shiv Sena faction led by Uddhav Thackeray in a petition filed in the Supreme Court on Monday.

The Shiv Sena (Uddhav Balasaheb Thackeray, or UBT) faction’s chief whip Sunil Prabhu said the speaker’s order on January 10 that held the Shinde faction to be the real Shiv Sena was “erroneous” and went against the anti-defection law and the Supreme Court’s judgment in May last year that asked the Speaker not to solely base its decision on the group possessing majority in the assembly by distinguishing between “legislative party” and “political party”.

“The Speaker by relying upon the ‘legislative majority’ to determine ‘who the political party is’ has conflated the concepts of ‘legislature party’ and ‘political party’ which is in direct violation of the law laid down by this court in Subash Desai judgment (of May 2022) that the ‘political party’ and ‘legislature party’ cannot be conflated.”

The petition only names Eknath Shinde as the only respondent and seeks urgent listing of the case.

“Based on completely unlawful reasoning that is contrary to the Tenth Schedule and the Constitution Bench decision in Subhash Desai case, the Speaker has held that majority of legislators represented the will of the Shiv Sena political party.”

The Sena suffered a vertical split in 2022 when Shinde and 39 other legislators walked out of the party then led by Uddhav Thackeray and joined hands with the Bharatiya Janata Party (BJP) to form the government.

By its judgment on May 11, a Constitution bench invalidated the Maharashtra governor’s decision asking then CM Uddhav to face a floor test last year and flagged a flurry of errors during the political drama that toppled the three-party Maha Vikas Aghadi government, but refused to put him back in the saddle because he voluntarily resigned instead of facing the trust vote in the assembly.

At the time, the court left it for Narwekar to decide the disqualification petitions pending against both Shinde and Thackeray groups, rejecting Thackeray camp’s plea that the court should decide the disqualification petitions by itself because of the alleged bias of the BJP leader.

The UBT group’s petition filed through advocate Nishanth Patil said the speaker’s order was “a complete colourable exercise of power and is based on extraneous and irrelevant considerations,” arguing that it went against the top court’s May 11 decision that left it to the Speaker to decide on disqualification pleas under the anti-defection law, contained in the Tenth Schedule to the Constitution.

The petition, which extensively quoted from the Supreme Court verdict, said the speaker has by a roving enquiry and convoluted or perverse reasoning held the ‘leadership structure’ of the Shiv Sena cannot be relied upon to determine the Shiv Sena political party.

In its May ruling last year, the petition said, the Supreme Court made it clear that the speaker should not base their decision “as to which group constitutes the political party on a blind appreciation of which group possesses a majority in the Legislative Assembly. This is not a game of numbers, but of something more.”

But despite the top court’s judgment, the speaker has based his decision on who the political party is, only on ‘legislative majority’ of the ‘Shinde faction’.

The petition added: “It has been held that contemporaneous news reports placed on record were mere hearsay evidence. There is no consideration of the fact that the respondents’ (Shinde faction) collusion with the BJP is evident from the undisputed fact that Eknath Shinde became Chief Minister with support of the BJP,” the petition stated.

It also faulted the speaker for holding that the defiance of the whip issued by the UBT faction did not attract disqualification as the whip failed to make a mention that its disobedience would invite disqualification. “This is a complete misreading and selective quoting of the judgment in Kihoto Hollohan’s case,” it said. In the 1992 Kihoto Hollohan case, the SC specifically held that in crucial proceedings such as a confidence motion, defiance of the party whip would attract disqualification under the Tenth Schedule.

The petition underscored that it was settled law that legislators cannot enter into political alliances contrary to the political alliance of which their political party is a member. “This is precisely what the Tenth Schedule seeks to prevent and punish,” the plea said, urging the court to set aside the Speaker’s orders.

The petition sought to set aside the speaker’s ruling. “Despite the admitted position that Shiv Sena political party was in a post-poll alliance with the Congress and the NCP (Maha Vikas Aghadi), of which the respondent MLAs were a part since 2019 till the acts in June 2022, respondents have been permitted to get away with revolting against that alliance and forging an alliance with the opposition party (BJP), through a perverse exercise of non-consideration of the main ground for disqualification.”

The petition said that a clear case for disqualification under the Tenth Schedule was made out by the fact that Eknath Shinde met the governor on June 30 and staked claim to form the government with the BJP and all respondents (rebel MLAs) supporting this action. “The same are simply brushed away by stating that since ‘Shinde faction’ has been held to be the political party and “none of the grounds could be a ground to seek disqualification,” the Uddhav Thackeray faction said.