New DelhiThe Supreme Court will hear on Wednesday Uddhav Thackeray’s plea to restrain the faction led by Maharashtra chief minister Eknath Shinde from taking over Shiv Sena’s properties and bank accounts following the Election Commission of India’s (ECI) decision last week to award the party’s name and bow-and-arrow symbol to the Shinde-led group.
Chief Justice of India (CJI) Dhananjaya Y Chandrachud accepted Thackeray’s request for granting an urgent hearing in the wake of irreparable consequences the ECI decision may entail on properties and finances of the party.
Senior counsel Kapil Sibal, representing Thackeray, mentioned the matter before the CJI, complaining that the poll body’s verdict in favour of the faction led by chief minister Shinde relies on the legislative strength inside the House, which, Sibal said, is one of the prime contentions being argued before a Constitution bench separately.
“If this (ECI judgment) is not stayed, they will take over everything. They have already taken over the office (party office in the state legislative assembly), now they will take over the bank accounts and more disqualifications will also follow. Please, take it up tomorrow so that some protective orders can be passed,” Sibal urged.
Even as the CJI agreed to list the matter on Wednesday at 3.30pm, senior advocate Neeraj Kishan Kaul, appearing for the Shinde faction, conveyed his preliminary objection to Thackeray’s plea. “Our contention is that this should not be argued in the Supreme Court at the first instance. They have gone to the (Delhi) high court twice against the Election Commission’s previous orders,” Kaul submitted.
At this point, justice Chandrachud told the lawyers that the judges on the bench would like to go through the petition extensively before it is taken up on Wednesday afternoon after the proceedings before the Constitution bench is over. The Constitution bench is adjudicating a bundle of legal issues arising out of the dramatic fall of Uddhav Thackeray government after his resignation and the swearing-in of Shinde as the new CM of the state in June 2022.
Thackeray had on Monday approached the Supreme Court to challenge the ECI order as CM Shinde’s camp took over Shiv Sena’s office in the state legislative assembly.
In his petition, Thackeray submitted that ECI failed to act as a neutral arbiter in the feud between the two factions. He claimed that the ECI order dealt with issues directly linked to a batch of petitions the Supreme Court was hearing. The petition on Monday was mentioned for early listing but the court refused to pass an order.
On Monday afternoon, Thackeray also attacked the Bharatiya Janata Party (BJP), Shinde’s ally in the current Maharashtra government, and said that he received calls from political leaders across the country after EC’s decision was announced last week. “Everything has been stolen from me. The name and symbol of our party have been stolen but the name Thackeray cannot be stolen,” Uddhav said at Shiv Sena Bhavan in Dadar, Mumbai.
Monday morning started with Sena legislators taking charge of the party office in the assembly. The premises belonged to the Uddhav faction until Friday. “Since ECI has recognised us as the Shiv Sena, this office now belongs to us,” Sena’s chief whip Bharat Gogawale said.
Last Friday, ECI ruled that Shinde’s faction will inherit the original party’s name and its symbol, capping an eight-month-long feud between the two leaders over control of the regional party that suffered a vertical split last year when Shinde and 39 other legislators walked out of the party then led by Uddhav, and joined hands with the BJP to form the government.
ECI followed the procedure laid down in a 1971 Supreme Court judgment, which says such cases must be decided on the basis of a triple test. ECI found that the conclusion of the first two benchmarks were inconclusive.
The first test — objectives of the party constitution — was deemed improper because the 2018 constitution of the Shiv Sena was found to be undemocratic and concentrated power in the hands of a few.
The second test — that of the majority in the organisational body of the party — was also not considered because the poll panel found that neither side provided accurate details of the composition of internal bodies, and no determinable or satisfactory findings could be ascertained.
Therefore, ECI relied on the third prong — the test of majority in the legislative wing. Here, the poll body found that 40 of the 55 members of legislative assembly backed the Shinde faction, which translated to 76% of the total votes polled by the unified party in the 2019 assembly elections. Moreover, 13 of the 18 Lok Sabha members of the party backed Shinde, which translated to 73% of the total votes polled in the 2019 general elections.
In his petition, Thackeray challenged this.
He argued that the Sena constitution recognised the Pratinidhi Sabha as the apex representative body of the party and that he had the support of 160 of its 200 members. “The Election Commission has failed to discharge its duties as a neutral arbiter of disputes under para 15 of the Election Symbols (Reservation and Allotment) Order, 1968 and has acted in a manner undermining its constitutional status,” said the appeal filed by advocate Amit Anand Tiwari and settled by senior advocate Devadatt Kamat.
