Saturday, Feb 04, 2023

Fight for ‘real’ Sena: Supreme Court rejects Uddhav plea, lets EC decide

“We direct there shall be no stay on proceedings before the Election Commission. Interlocutory Application seeking stay stands dismissed,” a five-judge Constitution Bench, headed by Justice D Y Chandrachud, said after hearing day-long arguments on the matter.

shinde thackerayThe SC has allowed EC to go ahead with Shinde group's plea.

The Supreme Court Tuesday rejected the Uddhav Thackeray-led Shiv Sena’s prayer to stay proceedings pending before the Election Commission of India (ECI) over a request by Maharashtra Chief Minister Eknath Shinde for recognition of his faction as the real Shiv Sena and permission to use the party’s ‘bow and arrow’ election symbol.

“We direct there shall be no stay on proceedings before the Election Commission. Interlocutory Application seeking stay stands dismissed,” a five-judge Constitution Bench, headed by Justice D Y Chandrachud, said after hearing day-long arguments on the matter.

The Thackeray camp had approached the top court stating that while petitions arising out of the Maharashtra political crisis, fuelled by the rift in the Shiv Sena were pending before it, the ECI “purportedly… initiated proceedings” under Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968, on an application by the Shinde camp “inter alia seeking to be recognised as the ‘real Shiv Sena’ and claiming the right to use the bow-arrow election symbol” and had issued notice to Uddhav Thackeray on July 22.

The bench, also comprising Justices M R Shah, Krishna Murari, Hima Kohli and P S Narasimha, which was constituted to hear the main petitions in the matter, had said earlier this month that it will first take up the application by the Thackeray camp seeking a stay on the EC proceedings.

Senior Advocate Kapil Sibal, appearing for the Thackeray camp, said the outcome of the disqualification proceedings will have an impact on the proceedings before the ECI and, therefore, the latter cannot proceed till the former is decided.

Appearing for the Shinde camp, Senior Advocate Neeraj Kishan Kaul said the disqualification of a member of a legislature party has no relation to the election symbol proceedings before the Commission.

The bench also wondered if the dispute involving the legislature party will affect the authority of the ECI as regards the political party, which is a much wider configuration.

Justice Chandrachud pointed out that in the written submissions, the Shinde side said they have produced 1.5 lakh affidavits of members of the party contending there is a faction which is now represented by them. “Does the Speaker have the power to lead evidence to decide this process which would otherwise fall within the ambit of ECI,” he asked.


In EC’s court

The rejection of its plea seeking a stay on proceedings before EC is a setback for the Sena faction under Thackeray. The Shinde camp says the Tenth Schedule does not dilute the exercise of powers by the EC under the symbols order.

“Therefore, we have to define, even for the purposes of the interim application, what is the ambit of the jurisdiction of the Speaker on the one hand and what is the ambit of the jurisdiction on the other hand of the Election Commission in terms of the Symbol Order. Because the political party is a much wider configuration than the legislative unit of that party which consists of the elected members. Does a dispute in regard to the former, in the legislative party, affect the authority of the Election Commission to decide the latter. This really is the heart of the matter,” he said.

Sibal responded that “legislative members of a political party function within the overall control of the political party… They are not independent of the party… There is an umbilical cord link between the members of the legislative and political parties”.

Stating that the matter “has huge consequences. In the Assembly, any government can be thrown out in this fashion… and they will have their own Speaker who will not decide on the disqualification”, he asked “where is this democracy going?”.


Senior Advocate A M Singhvi said that “far from being unrelated” as contended by the Shinde group, “the issue (of disqualification and proceedings before ECI) is in direct collision and inextricably intertwined”.

Pointing out that “the anti-defection law was created to stop precisely what is happening”, he said, “My question to myself is how does the EC maintain a complaint by people who are not recognised under the anti-defection law as a merged party? This is like putting the cart before the horse. Why can’t the ECI wait till the disqualification is decided by the Court. What is the urgency? What is the logic? It is to make it irreversible. It is to make it a fait accompli.”

“There is a dilemma. You have left the Shiv Sena but you want to have the goodwill of the Shiv Sena. So you don’t merge… You want the best of both worlds,” he said.

Senior Advocate Kaul said there was nothing in the case laws referred to by the Thackeray faction that the Tenth Schedule dilutes the exercise of powers by the ECI under the Symbols Order.

Justice Chandrachud pointed out that “the genesis of the entire dispute is what happened on the floor of the House. The Symbols Order predates the Tenth Schedule” and asked, “does the fact that the determination whether or not disqualification is exclusively entrusted to the Speaker… denude the ECI of its powers… does that disqualification impact the ECI powers?”.


Kaul replied that the law is well-defined. The jurisdiction of the Speaker under the Tenth Schedule is to determine the disqualification of a member and not to decide a split or merger within a political party, he said.

He contended that even if the Thackeray group’s arguments are accepted at its highest, the maximum consequence is that the Shinde group members are disqualified from the House but that does not prevent them from approaching the ECI in relation to the political party.


“If their arguments are accepted, the Election Commission, a coordinate Constitutional authority, is denuded of all its powers,” he said.

Senior Advocate Maninder Singh, also representing the Shinde camp, said the question as to which is the real political party can only come from ECI.


Appearing for the ECI, Senior Advocate Arvind Datar submitted that the powers of the ECI and the Speaker are completely different. The Commission, he said, was free to decide as to how it tests the majority and referred to what was done in the case of the AIADMK.

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“Not only in this case. As a general rule, whatever happens on the floor of any particular House or Parliament actually is completely independent and does not impact the functional relation of Election Commission in any way,” he said, adding that a person does not cease to be a member of a political party due to disqualification from the House.

First published on: 27-09-2022 at 17:23 IST
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