Wednesday 7 December 2022
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Election Commission to decide whether Eknath Shinde or Uddhav Thackeray is real Shiv Sena

The Supreme Court today said that there would be no stay on the proceedings of the Election Commission to decide which of the Eknath Shinde-led and Uddhav Thackeray-led factions constituted the real Shiv Sena in Maharashtra. This may be seen as a big win for Chief Minister Eknath Shinde's camp.

A constitution bench of the Supreme Court led by DY Chandrachud, and also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, heard the petition on the rift in Shiv Sena that saw the Maharashtra-based party break into factions, with the Eknath Shinde camp stealing the show from Uddhav Thackeray.

This minor battle win notwithstanding, the legal team of the Eknath Shinde faction has written to the Election Commission with the details of the Supreme Court order, sources said.

Election Commission to decide

After a day-long hearing, the bench said that there would be no stay on proceedings before the Election Commission to decide the intra-party dispute in Shiv Sena between Uddhav Thackeray and Eknath Shinde faction on which one is the original party and on getting the party symbol.

The bench rejected the plea of the Uddhav faction that the poll panel not be allowed to proceed in the matter till the Supreme Court decides a plea pertaining to the disqualification of Shiv Sena MLAs.

Earlier, the highest court had on 27 June granted interim relief to Shinde and his rebel group of MLAs by extending the to file responses to the disqualification notices sent by the Deputy Speaker, till 12 July.

During the hearing, the Supreme Court questioned senior advocate Kapil Sibal, who was appearing for the Thackeray faction, in what capacity did Shinde approach the poll body with his claim as the real Shiv Sena. Sibal responded that it was the whole issue as Shinde cannot approach the Election Commission once he has incurred disqualification and was involved in anti-party activities.

The bench observed that the issue is in relation to the ambit of jurisdiction of the Speaker under the 10th Schedule and the ambit of jurisdiction of the Election Commission with respect to the symbol order.

Sibal argued further that the election symbol order could be invoked only when the claimant belonged to the same political party and claimed to be of a rival group. In support of Sibal's arguments, senior advocate said, "In whatever form the Shiv Sena exists today, they have no claim that they have merged with the BJP. You have left the Shiv Sena, but you want the goodwill of Shiv Sena and so you won't merge."

Shinde faction’s argument

Responding to Sibal's submission, senior advocate Neeraj Kishan Kaul, appearing for the Eknath Shinde group, submitted that the Speaker's power is only in relation to the legislature party and that it cannot circumscribe the Election Commission's powers under the Symbols Order. "Under Article 324 of the Constitution, the Election Commission of India possesses powers to deal with any situation which arises in relation to political parties," Kaul said.

"My whole case is I have not given up the membership. We represent the overwhelming majority within the party. We have not left the party. So who will decide whether I have voluntarily given up the membership? Until the Speaker decides, how can I be restrained", Kaul argued.

The bench asked, "So you are saying until he is disqualified, the consequences do not attach?" Kaul replied, "If at all, the findings of the EC may help the Speaker. But the decision of the Speaker will in no away affect the election commission."

Adding to Kaul’s submission, senior advocate Maninder Singh, appearing for the Shinde group, submitted that there was a pre-poll alliance and said, "Uddhav Thackeray resigned as Chief Minister a day before the floor test. So, it has to be presumed that he lost the majority."

S-G for Maharashtra governor

Appearing for the Maharashtra governor, Solicitor General Tushar Mehta submitted that the Election Commission should be allowed to discharge its duties. "This is a political question, and it is not the first that such a split has happened and to decide which faction is the real party. It is the election commission which is equipped to look into this," he said.

Senior Advocate Arvind P Datar, appearing for the Election Commission, submitted that the powers of the ECI and the Speaker are entirely different. "ECI takes a complaint, then submission, then evidence, affidavit and then enquiry," he said.

Datar further said, "As a general rule, whatever happens in the floor of the house will not affect the powers of the ECI. ECI goes by the membership of the political party and not the legislature party."


In June this year, the Uddhav Thackeray-led Maha Vikas Aghadi government collapsed after a revolt led by Eknath Shinde and 39 other MLAs against his leadership. On June 30, Shinde was sworn in as the chief minister of Maharashtra with the BJP's support.

The Uddhav camp then filed a petition, seeking to restrain the Election Commission from deciding on the claim of the Shinde-led faction over the 'real' Shiv Sena and the party symbol.

The petition stated further that the Shinde camp MLAs can save themselves from disqualification under the 10th Schedule of the Constitution only by merging with another political party. However, the Shinde faction had contended the anti-defection law is not a weapon for a who has lost the confidence of his own party.

On 23 August, the Supreme Court referred to a five-judge bench the petitions filed by the Thackeray and Shinde-led factions raising several constitutional questions related to defection, merger and disqualification.

The top court had asked the poll panel not to pass any orders on the Shinde faction’s plea that it be considered the 'real' Shiv Sena and be granted the party’s poll symbol.

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