The Supreme Court on Thursday questioned the Election Commission of India (ECI) over its decision to give the Shiv Sena name and the party’s bow-and-arrow election symbol to the Eknath Shinde faction after the party split in 2022.
A three-judge bench headed by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and V Mohana, was hearing petitions challenging decisions linked to the Shiv Sena dispute. One of the main challenges has been filed by the Uddhav Thackeray faction against the ECI decision recognising the Shinde group as the Shiv Sena.
During the hearing, Justice Joymalya Bagchi asked why the Election Commission did not consider a neutral solution if it found that the available methods could not clearly establish which faction represented the original political party.
The judge suggested that both factions could have been asked to use separate symbols and contest elections based on their own political strength instead of allowing one side to benefit from the existing Shiv Sena identity and symbol.
“If all the tests stood vitiated, there was always the option available to them not to give an advantage to either of these groups. Let them select their own symbols and fight on their own strength, not on Balasaheb’s,” Justice Bagchi said, according to Bar & Bench.
Shinde Faction Defends Election Commission’s Decision
Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, defended the ECI’s approach.
He told the court that the Commission had examined several aspects of the dispute, including the party’s Constitution, its organisational structure and the support enjoyed by the two factions.
According to Kaul, the organisational structure could not provide a reliable basis for deciding the dispute because a significant part of it consisted of nominated members. He also argued that establishing the support of the wider party membership would not have been practical.
Kaul said the ECI therefore relied on the strength of elected representatives as the workable test in the circumstances.
He also argued that the Supreme Court’s earlier judgment in the Subhash Desai case did not prevent the ECI from considering legislative strength while deciding a dispute under Paragraph 15 of the Election Symbols (Reservation and Allotment) Order.
Court Examines Difference Between Party And Legislators
Justice Bagchi also focused on the distinction between the political party and its legislative wing.
He pointed out that proceedings under the Tenth Schedule deal with the conduct of individual legislators, including allegations of defection. A dispute over a reserved election symbol, however, concerns the identity of the political party.
The court therefore questioned whether the number of MLAs supporting a particular faction should automatically become the deciding factor in a party symbol dispute, particularly when disqualification proceedings involving some legislators were still pending.
Justice Bagchi observed that the symbol dispute concerns the political party and not merely the legislative group inside the assembly.
How the Shiv Sena Split Began
The Shiv Sena split into two rival factions in 2022, with one group led by Uddhav Thackeray and the other by Eknath Shinde.
The Shinde faction approached the Election Commission seeking recognition as the real Shiv Sena and claiming the party’s bow-and-arrow symbol.
The ECI eventually relied on the strength of the two factions among elected representatives after finding that the organisational test did not provide a satisfactory basis for deciding the dispute.
The Commission found that 40 Shiv Sena MLAs supported the Shinde faction, while 15 backed the Thackeray faction. Among the party’s 18 Lok Sabha MPs at the time, 13 supported Shinde and five supported Thackeray.
The ECI subsequently recognised the Shinde faction as the Shiv Sena and allowed it to retain the bow-and-arrow symbol.
Uddhav Faction Opposes Use of Legislative Majority
The Uddhav Thackeray faction has challenged the ECI’s decision before the Supreme Court.
Senior Advocate Kapil Sibal, representing the Thackeray faction, has argued that a majority among elected legislators should not by itself allow a group to take control of a political party’s identity, name and reserved symbol.
The Thackeray side has also questioned the use of legislative strength as the main basis for determining control of the political party.
The Supreme Court is continuing to hear the various petitions arising from the 2022 Shiv Sena split. The latest hearing focused on whether the ECI’s method of determining the party’s identity was appropriate and whether a neutral approach could have been adopted instead.
