The Supreme Court on Wednesday questioned the Election Commission of India’s approach in resolving the dispute between the rival factions of the Shiv Sena, asking why a neutral course was not adopted if the competing tests for determining the party’s legitimate representative were found to have inherent limitations.
A Bench comprising Chief Justice Surya Kant and Justices Joymalya Bagchi and V. Mohana was hearing challenges to the ECI’s decision recognising the faction led by Maharashtra Chief Minister Eknath Shinde as the Shiv Sena and permitting it to use the party’s traditional name and election symbol.
The Court’s query centred on whether, in circumstances where the conventional parameters for resolving an intra-party dispute presented difficulties, the Commission could have permitted both factions to contest elections independently rather than conferring the advantage of the established party identity and symbol on one side.
Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, submitted that the Commission had not proceeded merely on the basis of the 2022 split in the party’s legislative wing. According to him, the ECI had examined the party’s Constitution, its organisational structure, aims and objectives and other relevant material before determining the faction entitled to represent the political party.
Kaul argued that the Commission had considered the organisational-majority test but found it unsuitable in the peculiar circumstances of the dispute. He pointed out that the party’s organisational structure contained a substantial number of nominated members, while the elected representatives were divided and several disqualification proceedings were pending.
The Bench examined whether legislative strength could safely constitute the decisive criterion in such circumstances.
Justice Bagchi observed that while the legislative-majority test could be relevant, its determinative value may become questionable where the very status of elected representatives is subject to adjudication in disqualification proceedings.
The Bench also considered the practical difficulties associated with the other methods available to the ECI. A determination based on the party’s stated objectives, it was submitted, could not effectively distinguish the rival factions as both claimed adherence to the same ideological and organisational principles. Similarly, assessing grassroots organisational support through a referendum was stated to be impracticable given the size and structure of the party organisation.
The Court clarified that its role in the proceedings was confined to judicial review and that it was not seeking to substitute its own assessment for that of the specialised constitutional authority. The question, rather, was whether the Election Commission had adequately considered and exhausted the legally available alternatives before arriving at its decision.
Against this backdrop, the Bench raised the possibility of a neutral arrangement under which neither faction would receive an institutional advantage from the existing party name or symbol, leaving both sides to contest on the basis of their own organisational and political strength.
Kaul, however, maintained that the ECI had arrived at the legislative-majority test only after finding the alternative methods inadequate in the peculiar factual matrix of the case. He emphasised that he was not suggesting that legislative strength should ordinarily be treated as the sole or overriding test in every party-symbol dispute.
The proceedings arise from the prolonged legal battle following the 2022 political split in the Shiv Sena. The dispute before the Supreme Court concerns, among other issues, the ECI’s exercise of jurisdiction under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order, 1968.
The Supreme Court had earlier dealt with the complex interaction between proceedings before the Election Commission and disqualification proceedings under the Tenth Schedule, noting that the two constitutional processes operate in distinct spheres.
Arguments on the challenge to the ECI’s decision are continuing before the Bench.
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