Shiv Sena symbol dispute:SC asks, ‘Why should those who committed a constitutional sin get the party symbol?’

The Supreme Court heard the dispute over the Shiv Sena’s election symbol. The court asked how the spirit of a party symbol would apply to those who defect. A bench comprising Chief Justice Suryakant, Justice Joymalya Bagchi and Justice V. Mohana raised the question. The bench was hearing petitions challenging the Election Commission’s decision to allot the bow-and-arrow symbol to the Eknath Shinde faction. During the hearing, Neeraj Kishan Kaul, representing the Shinde faction, presented his arguments. He said the Election Commission’s decision based on legislative majority was legally sound and relevant. The Supreme Court had earlier also asked whether the Election Commission could have refused to allot the reserved bow-and-arrow symbol to both factions. The court had also asked whether the number of legislators facing disqualification proceedings could be considered a secure basis for determining the majority. Justice Bagchi’s question Justice Bagchi asked how the party’s election symbol would work if members facing disqualification proceedings later lost their membership. He said, “A political party retains its independence. If the disqualified members leave, the remaining members are allotted a separate election symbol. You were about to read the Sadiq Ali judgment.” Justice Bagchi then asked, “Will the spirit of the election symbol apply to those who have committed a constitutional sin? Or to those who have complained about a constitutional sin?” He also questioned whether grassroots support could be determined on the basis of the number of members in an organisation. Justice Bagchi said this could be difficult in the complicated circumstances of Indian politics. The Shinde faction’s argument Neeraj Kishan Kaul cited several Supreme Court judgments. He defended the Election Commission’s reliance on the test of legislative majority. Kaul said that under the Election Symbols (Reservation and Allotment) Order, this test was legally valid and relevant for determining which faction was the political party. Referring to a ruling, Kaul said it had not stated that the effect of disqualification necessarily applied retrospectively. He said the ruling concerned a situation in which a split in the party had been recognised even before the Speaker decided the disqualification petitions. The court had directed that the disqualification be decided on the basis of the circumstances prevailing when the petitions were filed. Kaul also referred to the Constitution Bench’s ruling in the Subhash Desai case. He said the ruling did not bar the use of the legislative majority test. He said that while deciding disqualification petitions under paragraph 2(1)(a) of the Tenth Schedule to the Constitution, the Speaker may first have to determine which of the rival factions constitutes the political party. According to Kaul, the Speaker should examine the party’s constitution and the rules governing its leadership. If different versions of the party constitution emerge, the version submitted to the Election Commission before the factions split should be considered. He said that after examining all the necessary aspects, the test of legislative majority could be applied if a constitutional authority deemed it appropriate. The senior lawyer said the election symbol should be allotted to the faction that proves it is the real political party. The situation would be different if neither faction could substantiate its claim. Justice Bagchi asked whether the organisational test could accurately reflect grassroots support if the party constitution did not clearly provide for a democratic organisational structure. Argument over majority figures Kaul said the 40 MLAs supporting Shinde represented 76% of the total votes cast in favour of the 55 Shiv Sena MLAs who won the 2019 Maharashtra Assembly election. He also cited Lok Sabha figures. Kaul said the 13 MPs supporting Shinde represented 73% of the total votes cast in favour of the party’s 18 winning MPs. He said that the mere pendency of disqualification proceedings could not prevent the Election Commission from deciding the dispute over the party’s election symbol under Paragraph 15. Kaul also said that the 2019 Maharashtra Legislative Assembly had been dissolved. A new House had been constituted after the 2024 election. What the petitions challenge The main petition was filed by Sunil Prabhu of the Uddhav Thackeray faction. It challenges the Maharashtra Assembly Speaker’s decision of 10 January 2024. The Speaker had refused to disqualify legislators from the Shinde faction under the Tenth Schedule. A related petition filed on behalf of Uddhav Thackeray challenges the Election Commission’s decision recognising the Shinde faction as the official Shiv Sena. Under the same decision, the Shinde faction was also allotted the party’s bow-and-arrow election symbol. The hearing in the Supreme Court could not be completed. The hearing in the case will continue on Wednesday.