Maharashtra chief minister Eknath Shinde has filed a caveat in the Supreme Court seeking to be heard on a possible appeal to be filed by the Uddhav Thackeray group to challenge the Election Commission of India (ECI) ruling that awarded the Shiv Sena name and its bow-and-arrow symbol to Shinde.
Taking the first step in what is expected to be a high-voltage legal drama in the top court, the single-page caveat – filed on Saturday by advocate Abhikalp Pratap Singh on behalf of Shinde – asked that nothing be done in the matter without notice to the undersigned.
Meanwhile, the faction led by Thackeray has started brainstorming to finalise the legal strategy to challenge the ECI decision in the top court. The appeal is set to be mentioned before the top court for urgent listing on Monday, leaders of the group said.
As immediate relief, the faction is looking to get a stay on the order by linking it with the ongoing petition before the top court for disqualifying Shinde and 15 other rebel MLAs. They will also strive to maintain the status quo in which both sides were allotted temporary names and election symbols to contest the upcoming elections, party leaders said.
On Friday, the 77-page order by the three-member poll panel went by the “test of majority” rule to hold that the Shinde faction enjoyed support of 40 out of 67 members of Maharashtra legislative assembly and council. In Parliament, 13 out of 22 members of both houses of Parliament stood with Shinde. The ECI order found that the 40 MLAs got nearly 76% votes polled in favour of 55 winning Shiv Sena candidates in the 2019 Assembly polls as against 23.5% of votes polled for MLAs in the Thackeray camp.
The decision capped an eight-month-long feud between the two leaders over control of the party identity, which suffered a vertical split last year when Shinde and 39 other legislators walked out of the party then led by Thackeray, and joined hands with the Bharatiya Janata Party (BJP) to form the government. The EC told the Thackeray faction to keep the name “Shiv Sena Uddhav Balasaheb Thackeray” and the “flaming torch” symbol assigned last year for now.
The Friday ECI ruling came on a day when the Supreme Court agreed to hear the petition by the two factions on merits without first going into the preliminary argument raised by Thackeray group seeking reference of a 2016 decision on Speaker’s power to disqualify legislators to a larger bench.
The 2016 decision was passed by the top court in Nabam Rebia case where Rebia was the Speaker of Arunachal Pradesh Assembly who disqualified a set of rebel Congress MLAs at a time when his removal was sought. The 2016 decision held that the Speaker cannot decide on disqualification under the 10th Schedule of the Constitution when a notice of his removal is pending.
A five-judge bench of the top court led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud agreed to examine this issue after hearing the petitions on merits. The matter was posted for hearing on Tuesday.
On Sunday, Shinde said the ECI decision was “a victory of truth”. “We got the bow-and-arrow symbol because of the blessings of Shivaji Maharaj. It is a matter of pride for us and every citizen of Maharashtra. The decision is a major one and is in fact victory of the truth. The majority has its weight in democracy,” Shinde said.
“We have done this [filed the caveat in SC] because there is no one-sided decision, and we must get a notice before hearing the matter,’’ said Shiv Sena spokesperson Kiran Pawaskar. He added that party MLAs will also meet speaker of legislative assembly at 10am on Monday and demand that the Vidhan Bhavan Shiv Sena legislative party office be handed over to them.
Leaders from the Thackeray faction, meanwhile, said they are planning to approach the Supreme Court on Monday to file a comprehensive appeal against the ECI order. The appeal has been settled by senior advocate Kapil Sibal, who is likely to mention the appeal before the top court for urgent listing.
“We are going to challenge the ECI decision in the Supreme Court in the first half of Monday itself. We will request the court to give us a stay as it [ECI’s Friday ruling] is illegal. It has not considered many constitutional aspects in its decision,” said senior Sena (UBT) leader Anil Parab. “We will also request the matter to be heard before the bench of CJI as he is listening to the matter on disqualification of 16 MLAs among others,” he added.
Assembly elections are due in Maharashtra in October 2024. But the ECI decision came weeks before two bellwether assembly bypolls in Chinchwad and Kasba Peth, and the Mumbai municipal polls are scheduled later this year.
Explaining the crux of their argument in the top court, a senior leader from Thackeray camp, wishing not to be identified, said: “We believe that the bunch of petitions pending before them are correlated with the matter decided by the ECI about which faction is the real Shiv Sena. The apex court is yet to decide that the rebellion led by Shinde amounts to disqualification or not and without a clarity on that, the ECI verdict becomes irrelevant.”
They, however, are of the opinion that the current flaming torch symbol will be effective for them in civic polls since the cadre has already popularised it on the ground.
The Thackeray-led faction is likely to face a challenge even for the new symbol. The Samata Party, which was formed in 1994 by George Fernandes and Nitish Kumar as an offshoot of the Janata Dal, has approached the ECI requesting for a freeze on the flaming torch symbol.
“The option to approach the Supreme Court is open to us in case ECI does not heed to our demand… We strongly believe that ‘flaming torch’ is our symbol and should not be shared with anyone,”said Samata Party chief Uday Mandal on Sunday. “They can give any other symbol to Uddhav Thackeray and his party.”
Thackeray, speaking in Mumbai on Sunday, said he anticipated “dirty politics” around even the new symbol and said that he was ready to fight. “Today they may take our mashal (flaming torch), because they have come down to low and dirty politics but I am ready to fight… You can take my election symbol … but you cannot steal (Lord) ‘Ram’ from the hearts of people. They want to end our political opponents and now it is up to you to decide,” he said.
With inputs from Saurabha Kulshreshtha