The Supreme Court has examined a significant constitutional question in the ongoing Shiv Sena name-and-symbol dispute: whether a division within a party’s legislative wing can subsequently manifest itself in the broader political organisation and among its primary members.
A Bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing the challenge mounted by the Uddhav Thackeray-led faction against the Election Commission of India’s decision recognising the Eknath Shinde faction as the “real Shiv Sena” and granting it the party’s traditional bow-and-arrow symbol.
The issue arose during submissions by Senior Advocate Kapil Sibal, who appeared for the Thackeray faction. Sibal contended that a split confined to the legislature party could not, by itself, establish a division within the political party. He relied on the Supreme Court’s earlier Constitution Bench ruling in Subhash Desai v. Principal Secretary, Governor of Maharashtra and the framework governing disputes under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order.
Justice Joymalya Bagchi, however, indicated that the Court would have to consider whether a schism that originates within the legislative wing could subsequently spread into the party organisation and its primary membership.
The Court noted that the earlier Constitution Bench decision had clarified that a proposed split could not be confined merely to the legislature party. However, Justice Bagchi questioned whether that principle would preclude the Election Commission from taking into account a situation where a legislative rupture becomes reflected in the wider organisational structure.
The Bench also considered whether the date on which the Election Commission’s jurisdiction under Paragraph 15 is invoked should be treated as the decisive point for assessing a split, or whether subsequent developments could legitimately be examined before the Commission reaches its final determination.
Sibal accepted that political disputes could evolve over time but maintained that the Election Commission must first have prima facie material demonstrating a split within the political party itself before exercising jurisdiction under Paragraph 15.
Chief Justice Surya Kant further observed that where the available material establishes the threshold for assuming jurisdiction, a subsequent finding may involve an erroneous exercise of jurisdiction rather than a complete absence of jurisdiction. Sibal, however, maintained that the pivotal question was whether the material available before the Election Commission as of July 19, 2022 was sufficient to demonstrate a split in the political party.
Justice Bagchi also emphasised that the Court was adjudicating the dispute against the backdrop of a “living democracy”, underscoring the broader constitutional implications of determining the identity and organisational legitimacy of a political party.
The dispute stems from the dramatic split within the Shiv Sena in 2022, following which the factions led by Uddhav Thackeray and Eknath Shinde separately claimed to represent the original party. Shinde subsequently approached the Election Commission seeking recognition of his faction as the Shiv Sena and claiming the party’s bow-and-arrow symbol.
In February 2023, the Election Commission ruled in favour of the Shinde faction. Since it found the competing claims regarding the organisational wing inconclusive, particularly in view of the absence of the latest party constitution on record, it relied principally upon the relative strength of the legislative wing.
The Commission noted that the Shinde faction commanded the support of 40 MLAs, compared with 15 supporting the Thackeray faction. In the Lok Sabha, 13 of the 18 Shiv Sena MPs were found to be supporting the Shinde faction, while five backed the Thackeray camp. On that basis, the Commission allowed the Shinde faction to retain the Shiv Sena name and the bow-and-arrow symbol.
The Supreme Court’s present examination therefore raises questions extending beyond the immediate contest for a party name and electoral symbol. At its core is the manner in which a political party’s organisational identity is to be determined when a legislative split precedes, accompanies or allegedly produces a wider rupture within the party structure.
The hearing will continue on Thursday.
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