'No Sole Authority': Details of Uddhav's Defeat Are in the (Lack of) Paperwork

A look at the verdict, the party's constitution and where the Thackeray faction lacked in relevant documentation.

"Further, with respect to the amendments to the said constitution (of Shiv Sena), the Election Commission vide its order dated 17 February 2023 said that the amended constitution of 2018 is not on the record of the commission."

This fact played a vital role in what led to the defeat of the Uddhav Thackeray faction's case on determining the 'real' Shiv Sena, the verdict of which was pronounced by Maharashtra Assembly Speaker Rahul Narwekar on 10 January.

An undated and unsigned version of the party's constitution on the Election Commission's website, no record of the claimed amended 2018 constitution with the EC, discrepencies in attendance sheets of party meetings called after the split — as the paper trail required to establish the Thackeray faction's claims before the Speaker fell through the cracks, so did the case.

"The removal of Eknath Shinde by Uddhav Thackeray in June 2022 is not accepted based on the Shiv Sena constitution," Narwekarar said as he pronounced his verdict, adding that Thackeray did not have 'sole authority'.

Here's a closer look at the verdict, the party's constitution and where all the Thackeray faction lacked in producing relevant documents that eventually may have strengthened Shinde's case:

Why Did Narwekar Not Accept the 2018 Leadership Structure Submitted to the EC?

The Supreme Court of India had ordered Narwekar to thoroughly consider the constitution of the party while determining the 'real' Shiv Sena.

During the hearings before the Speaker, the Thackeray faction asserted that the amended constitution of 2018 should be considered, which gave sole authority to the 'Paksha Pramukh' to take decisions for the party.

The Shinde faction, however, asserted that the 1999 constitution of the party, available with the EC, should be considered wherein the intra-party decision-making process is more democratic and the 'Shivsena Pramukh' will take decisions in consultation with the 'Rastriya Karyakarini', the highest body comprising of senior party leaders.

The 2018 amended constitution, however, is not available with the EC or on its website, leading to the 1999 constitution being taken into account for the judgment.

"Thus, the Petitioner's submission that the constitution of the year 2018 has to be taken into account cannot be accepted as I am bound to follow the directions of the Hon'ble Apex Court in Subash Desai (Supra) and accordingly take into account the constitution what the Election Commission has provided," Narwekar's order reads.

The order further stated that the said letter dated 4 April 2018 of an amended constitution provided to the EC does not mention any amendments to the party's constitution; neither was a copy of it submitted to the Speaker after 2018 as per aforementioned rules.

The Thackeray faction, however, argued that the Shinde faction raised no objections to the 2018 amendments before the spilt took place and worked according to it for inter and intra party matters.

Did Thackeray Actually Not Have Sole Authority to Remove Shinde?

In the verdict, Narwekar said: "'UBT faction' has submitted that the decision of the 'Pakshapramukh' is synonymous with the 'will of the political party' and thus if there is a rift in the leadership structure, the decision of the 'Pakshapramukh' constitutes the 'will of the political party' . This proposition is devoid of merit, and I do not find any substance to allow the same."

Explaining why Thackeray could not have removed Shinde from the party, the verdict said that the 'powers of the Shiv Sena Pramukh are not absolute and have to be exercised in consultation with the Rashtriya Karyakarini, the highest body of the party presided over by the president.

If one looks at the 'Disciplinary Action' section of the constitution, it states: "Shivsena Pramukh, in consultation with Rashtriya Karyakarini, shall decide the ultimate disciplinary action, against the members or office-bearer.The decision of the Shivsena Pramukh in this reagard shall be final and binding."

The argument given by the Shinde faction is that no meeting of the Rashytiya Karyakarini was called before removing him as the Shiv Sena Leader.

That begs the third key question:

What Powers Did Sena Constitution Give Uddhav If a Rival Group Emerged?

In the verdict, the Speaker said that the Shiv Sena constitution does not provide any clear answers on emergence of a rival group.

"...The 2018 leadership structure read with the 'SS constitution' DOES NOT provide any reliable answer to the question 'which faction is the real political party' and consequently the '2018 leadership structure' cannot be the yardstick to determine which faction is the real political party," the verdict said.

Under the 'Beach of Discipline' clause of the available constitution, there are three key conditions among the seven enlisted that call for disciplinary action:

• Violating any rule or disobeying any order passed by Rashtriya Karyakarini or any superior office-bearer.

• Taking a Party dispute to any other agency outside the party.

• Forming groups against the interest of the party

Sena observers say that the Shinde faction violated all three of these.

The last line of this section of the constitution further says: " ln such cases, it will be the sole authority of the Shivsena Pramukh to decide which group is acting against the interest of the Party."

'No record of Amended 2018 Constitution': Where Did the Paper Trail Lack?

• The copy of the Shiv Sena constitution available with the EC does not possess any date or signature of any member of the party. In its reply to the Speaker, the EC said that "amended constitution of 2018 is not on the record of the commission" .

• The verdict further said: "This aspect need not be further considered in view of the fact that in any case, UBT faction has not placed any material on record to even suggest that any meeting of the 'Rashtriya Karyakarini' was called for where any decision in relation to the 'real political party' was resolved so as to identify the 'leader' and/or the whip who carried the 'will of the political party.'"

• On the matter of action being taken against Shinde faction leaders by passing 7 resolutions in a meeting dated 25 June 2022, the Shinde faction was able to prove that none of the resolutions possessed any signature of any person whose names are shown on them other than Sunil Prabhu, the then Shiv Sena secretary.

• The Shinde faction was also able to prove discrepancies in the signatures of the number of MLAs who attended a meeting of the party on 21 June called by the Thackeray faction, the order stated.

• The Thackeray faction had sought the disqualification of Shinde on the basis that he had deliberately skipped the 21 June meeting despite a whip being sent to his assistant via WhatsApp. "However, the petitioner has not offered any statement or any material to even suggest that such WhaatsApp messages were sent to other Respondents"

• The Shinde faction also proved that the WhatsApp message allegedly sent to the PA of Shri Eknath Shinde was sent at 12:31 pm on 21 June 2022, for a meeting which was allegedly scheduled for 12:30 PM.

People's Will Be 'Supreme'?

Experts believe that falling short on several processes and documentations led to the setback for the Thackeray faction.

Senior political anlyst and a veteran Sena observer, Prashant Dixit said that the Speaker's actions were only strengthened with the Thackeray faction falling behind on producing material evidence to several claims.

"They claim that they amended the constitution in 2018 but they have not been able to produce any acknowledgement of it by the EC. It gave the Speaker the leeway to use the 1999 constitution," Dixit said.

"The whole premise of the judgment was on the 1999 constitution of the party. If the Thackeray faction claims to have amended the constitution, they could just have produced it before the media, or at least got the EC's acknowledgement of it before the media. But they haven't been able to do so," he added.

"They did not behave like a seasoned political party when it came to documentation which weakened their case. You cannot play on emotions there," Dixit said.

Mahesh Jethmalani, arguing the case for the Shinde faction, claimed before the media last week that he received either improper or incomplete documentation from the Thackeray faction.

"You cannot take chances like that when you're trying to save the party. It's given the other side the window to allege fraud," Dixit said.

The Thackeray faction has declared that it will move the Supreme Court against the Speaker's verdict. The real test, however, is now keeping at the perception battle in which Thackeray has taken the lead so far.

The reason behind Thackeray's MLAs not being disqualified is being percieved to be the same.

"Both factions will have to get the momentum from the people now. The Uddhav Thackeray faction will have to keep upping the sympathy factor that is working in their favour. On the other hand, if Narwekar had held the hearings timely, if the SC wouldn't have had to intervene, and if he had not met Fadnavis a day before the verdict, the credibility of this judgment would not have been tarnished. There were doubts on the proceedings. When the SC gave him a date is when he actually expedited the proceedings," Dixit said.

While the Thackeray faction is willing to move the SC, the hearings and the verdict of it is unlikely before the Lok Sabha elections scheduled for April-May this year.

As the Brihanmumbai Municipal Corporation (BMC) elections having been delayed for over two years, there has not been a real electoral test for either of the sides to determine which Shiv Sena enjoys the mandate of the people.

With the momentum expected to be generated by the inauguration of the Ram Mandir and the popularity of Prime Minister Narendra Modi in the state, many expect the ruling alliance to have an edge in the Lok Sabha polls. So, the real test of the will of Maharashtra's voters, in fact, may be the clearest only after the Assembly elections slated to be held in October this year.

Nevertheless, it verdict of the 'real' Shiv Sena will be delivered only in the people's court.