The Supreme Court on Wednesday turned down a plea by Uddhav Thackeray to stay the Election Commission of India’s (ECI) decision last week to award Shiv Sena’s name and bow-and-arrow symbol to the faction led by Maharashtra chief minister Eknath Shinde, clearing the decks for the Shinde-led group to take Over party’s offices, other properties and bank accounts.
A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, said that it cannot stay the ECI decision at this stage or restrain the Shinde faction from claiming the party’s name or properties after they succeeded before the poll body, even as the court admitted Thackeray’s appeal against the ECI order and issued notices to Shinde and the Commission.
The bench, which also comprised justices PS Narasimha and JB Pardiwala, however, granted liberty to the Uddhav faction to use the name Shiv Sena (Uddhav Balasaheb Thackeray) and the flaming torch symbol for the ongoing bye-elections in Chinchwad and Kasba Peth, noting that ECI had also granted the same relief in its decision dated February 17.
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The court also recorded an undertaking by senior counsel Neeraj Kishan Kaul on behalf of Shinde that the Maharashtra CM will not press for disqualification of any legislator from the Uddhav faction until the bench finally decides the appeal against the ECI decision, but declined to extend the scope of its order to impose a restriction on the Shinde-faction from claiming properties and bank accounts as the real Shiv Sena.
“This (ECI) order does not contain anything regarding bank accounts or properties. ECI was deciding the symbol order. Something which is a part of the order we can certainly look upon. This does not form part of the order. ECI order is confined to the allotment of the symbol. Now they have succeeded before the EC. We cannot pass an order which has the effect of staying it without hearing them. We are entertaining the SLP. We can’t stay the order at this stage. They have succeeded before the ECI”, the bench told senior counsel Kapil Sibal, Abhishek Manu Singhvi and Devadatt Kamat, who represented the Uddhav faction.
At this, Sibal pleaded for a liberty to mention the matter if the Shinde camp takes any further action. The bench, however, responded: “ECI order is confined to a symbol. Any further action is not based on the ECI order. Therefore, other actions will have to be challenged in other appropriate proceedings. We are entertaining this SLP (special leave petition) only.”
The court then gave Shinde and ECI two weeks to file their replies to Uddhav Thackeray’s appeal against the February 17 order by the Commission, and fixed the matter after three weeks.
On Tuesday, CJI Y Chandrachud accepted Thackeray’s request for granting an urgent hearing to him in the wake of irreparable consequences the ECI decision may entail on properties and finances of the party.
Thackeray 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 a constitution bench in the Supreme Court was hearing. The constitution bench is separately 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.
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Arguing for the petition on Wednesday, Sibal complained that the ECI decision was based on the legislative strength inside the House, which, he said, is one of the prime contentions being argued before a constitution bench separately.
“The symbol has been given only because of the numerical strength in the assembly. They have 40 (MLAs). That’s how the symbol is being given to them. And the legality of the same majority is the question pending before the constitution bench,” Sibal added.
Singhvi, also appearing for the Uddhav faction, pointed out that members of the faction could be made to face disqualification proceedings if they do not obey the whip or notice issued by the Shinde group, which has now been recognised as the real Shiv Sena.
At this point, the bench asked senior counsel Kaul, Maninder Singh and Mahesh Jethmalani, representing the Shinde faction, if they can give an undertaking not to precipitate the matter until the court finally decides. All the lawyers agreed that the Shinde faction will not take any step to precipitate the matter till the time the apex court decides Thackeray’s appeal.
At the same time, Kaul also registered preliminary objections to the appeal, arguing it was not maintainable before the Supreme Court in the first instance. He contended that the Uddhav faction went to the Delhi high court twice against the Election Commission’s previous orders and thus, they cannot be allowed now to leapfrog a forum. Kaul added that they would raise this point also in the counter-affidavit to be filed in response to the court notice on Uddhav’s petition.
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 Thackeray, 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.
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,” he said at Shiv Sena Bhavan in Dadar, Mumbai.
