Arguments, counters and outcome of SC hearing of Thackeray group’s petition against ECI order

Supreme Court refuses to stay ECI order at present stage

The apex court, while posting the matter after two weeks, sought replies and rejoinders from the parties in the case and said at present (on Wednesday), it cannot pass any order to stay the ECI decision.

Shinde-led Shiv Sena raises preliminary objection to petition

Senior advocate N K Kaul appearing for the Shinde group raised a preliminary objection to the maintainability of the petition and submitted that the Thackeray group, in view of “judicial hierarchy”, could have approached the High Court seeking relief before approaching the Supreme Court. Kaul said no stay should be granted on the ECI order.

Thackeray group raises ‘grave objections’ to ECI order

The Thackeray camp argued that the ECI order, which ruled in favour of the Shinde group, was merely based on a “test of majority in legislative wing” and the same is insufficient. The petitioners also raised “grave objections” to the ECI’s order which stated that the “test of majority in the organizational wing is not leading us to a satisfactory outcome”.

Shinde group says ECI order considered ‘entire party structure’

The Shinde-led Sena justified the ECI order and said that it has considered the entire structure of the party which included the number of votes which is reflected in majority in the legislature wing of the Shinde group.

Thackeray group seeks extension for use of ‘flaming torch’ symbol and Shiv Sena (UBT) name beyond bypolls

The ECI in its order had granted protection and had allowed the Thackeray group to use the name Shiv Sena (Uddhav Balasaheb Thackeray) and the ‘flaming torch’ symbol till February 26, the day when the bypolls to the Chinchwad and Kasba Peth Assembly constituencies are to be held. The Thackeray group sought extension of the same and said if it is not allowed, “its political activity will come to standstill”.

Supreme Court grants relief to Thackeray group, allows it to use ‘flaming torch’ symbol till further orders

The Supreme Court continued the protection granted by the ECI and allowed the Thackeray group to use the symbol ‘flaming torch’ along with the Shiv Sena (UBT) name till further orders. “Pending further orders of this court, the protection, which has been granted in paragraph 133 (IV) of the impugned order of Election Commission dated February 17, 2023, shall continue to remain in operation,” the bench said.

What does paragraph 133 (IV) of ECI order state?

The ECI order of February 17 had granted protection to the Thackeray group to retain the ‘flaming torch’ symbol till the Assembly bypolls. The ECI had frozen the symbol ‘bow and arrow’ in October last year and had temporarily allotted the ‘flaming torch’ symbol of the Thackeray faction and the ‘two swords and shield’ symbol to the Shinde faction.

Recently, the ECI in its order said, “In view of the ongoing by-elections at Chinchwad and Kasba Peth of the Maharashtra Legislative Assembly, the respondent faction, which was allotted the name of ‘Shiv Sena Uddhav Balasaheb Thackeray’ and symbol of ‘Flaming Torch’ as per the interim order dated 10.10.22 of the Constitution in this dispute case, is hereby allowed to retain the said name and symbol till completion of the said by-elections.”

Shinde-led Sena says not in process to issue whip to legislators to vote in their favour or initiate process to disqualify Thackeray group legislators

Senior advocates Kapil Sibal and Abhishek Manu Singhvi appearing for the Thackeray camp apprehended that the Shinde group, being termed the original Shiv Sena, would now issue a whip to them to vote in Shinde group’s favour, failing which, fresh disqualification proceedings would be initiated.

“If they (Shinde group) issue a whip tomorrow, and if we do not follow it, we will be disqualified. Now they are the party and we have no protection. The court should at least grant the status quo,” Singhvi argued.

The Bench sought to know before it posted the matter after two weeks if the Shinde group was in the process to issue a whip or disqualify Thackeray group members, to which Kaul responded in negative.

Kaul, said there is an oral undertaking that the Shinde faction will not precipitate the matter and it will “not do anything of the nature apprehended by the petitioner”.

Thackeray group raises concerns over Shinde staking claim on ‘office after office’ of party in state legislature, parliament, seeks ‘status quo’

Sibal also raised concerns about the Shinde camp taking “office after office” after the ECI allotted them the Shiv Sena name and symbol and pending hearing, sought a “status quo” in the matter. The bench, however, rejected the request. “ECI order is confined to the symbol. Now, we cannot pass an order to stay the Election Commission order. We are entertaining the Special Leave Petition (SLP). We cannot stay the ECI order today,” CJI Chandrachud said.

Thackeray group seeks liberty to approach if party bank accounts, properties and other occupations are taken over by Shinde-led Sena

When Sibal raised an apprehension that the Shinde group can claim they are the real party and take over the bank accounts, properties etc, CJI Chandrachud said, “We cannot stay an order at this stage. They have succeeded before the ECI. Something which is a part of the order we can decide upon. We cannot (put) stay in order at this stage. They’ve succeeded before the ECI.”

When Sibal sought liberty to mention the issue in case any further measures are taken by Shinde-led Sena based on the ECI order, the bench said that if the actions related to questions of accounts etc are outside the ECI order, the petitioner will have to pursue other or alternate remedies provided by law.