The Supreme Court indicated Wednesday that the rule permitting the Election Commission of India to resolve party symbol disputes before disqualification cases are settled “may need a relook.”
CJI Surya Kant, presiding over a bench with Justices Joymalya Bagchi and V. Mohana, raised the issue while hearing a challenge by Uddhav Thackeray’s faction against the ECI’s decision to recognize Eknath Shinde’s group as the official Shiv Sena and grant it the party’s “bow and arrow” symbol.
Thackeray faction claims ECI used incorrect criteria
Senior Advocate Kapil Sibal, representing Thackeray’s group, contended that the Commission abandoned its own practice of evaluating a party’s majority through its organizational bodies. He stated that the ECI instead relied exclusively on the number of legislators backing Shinde—39 MLAs whose disqualification the faction is pursuing under the Tenth Schedule.
“If those MLAs lose their seats, the majority the ECI used vanishes,” Sibal told the court. “The test’s foundation becomes meaningless.”
He highlighted the faction’s broader support: while Shinde’s group held 40 of 55 MLAs and 13 of 19 Lok Sabha MPs at the split, Thackeray’s faction controlled all 12 Legislative Council members, four Lok Sabha MPs, and all three Rajya Sabha MPs. Disqualification of the contested MLAs, Sibal argued, could have altered the legislative majority in his clients’ favor.
Sibal also accused the ECI of inconsistent standards in assessing the party’s internal democracy. He noted that the Shinde faction initially accepted the Shiv Sena’s 2018 Constitution—under which members held positions for years—only to later label the document undemocratic when it no longer served their interests. The Commission, he claimed, made this determination without notifying Thackeray’s group beforehand.
Judges question existing framework
Sibal urged the bench to reconsider a five-judge ruling that permits the Commission to decide symbol disputes while disqualification pleas remain undecided. He called the current system risky, arguing it encourages defections by letting factions use office advantages to solidify support after splits.
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The issue extends beyond one party, he added. “Those in power often delay disqualification proceedings. This isn’t unique to any political group.”
Debate over ECI’s oversight powers
Sibal also questioned the Commission’s authority to evaluate the Shiv Sena’s internal constitutional processes. He maintained that Section 29A(9) of the Representation of the People Act only requires parties to report changes to specific details—not submit to oversight of their internal democracy.
“The ECI’s 2010 guidelines on party constitution amendments apply during registration,” Sibal said. “The Shiv Sena registered long before those rules existed.” He argued that if the Commission wanted the party to meet democratic standards, it should have issued a separate directive rather than using the finding against Thackeray’s group in the symbol dispute.
The Shinde faction’s legal team, led by Senior Advocates Neeraj Kishan Kaul and Maninder Singh, defended the ECI’s approach, stating the Commission followed established procedures to determine the “real” Shiv Sena.
The dispute originated in June 2022 when Shinde led a rebellion against Thackeray, collapsing the Maha Vikas Aghadi government. The ECI recognized Shinde’s faction as the official party in February 2023, a decision the Thackeray camp has called legally flawed.
In a related case, the Supreme Court is also reviewing a plea by Thackeray faction member Sunil Prabhu challenging the Maharashtra Speaker’s refusal to disqualify Shinde’s MLAs. The Speaker’s January 2024 decision, which the Thackeray side labeled unlawful, treated the Shinde group’s legislative majority as the party’s will—a ruling that adds complexity to the ongoing legal conflict.