Hearing Uddhav Thackeray’s challenge to the ECI recognising the Shinde faction as the Shiv Sena, CJI Surya Kant said the rule letting the ECI decide symbol disputes first “may need a relook.”
New Delhi: The Supreme Court on Wednesday heard extensive arguments in Uddhav Thackeray’s challenge to the Election Commission of India’s decision recognising the Eknath Shinde faction as the official Shiv Sena and allotting it the “bow and arrow” symbol, with the Chief Justice of India indicating that the settled position allowing the poll body to decide such disputes ahead of pending disqualification proceedings “may need a relook” [Sunil Prabhu v. Eknath Shinde, SLP (C) Nos. 1644-1662/2024].
A Bench of Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V. Mohana heard the matter, in which Senior Advocate Kapil Sibal, for the Thackeray faction, pressed a wide-ranging challenge to the ECI’s reasoning and urged the Court to reconsider a five-judge ruling that permits the Commission to decide symbol disputes while disqualification pleas remain undecided. Also listed was a connected plea by UBT faction member Sunil Prabhu challenging the Maharashtra Speaker’s refusal to disqualify MLAs of the Shinde faction under the Tenth Schedule.
The core attack: the ECI applied the wrong test
Sibal’s central submission was that the ECI, in deciding which faction was the “real” Shiv Sena, wrongly discarded the organisational-wing test and reduced the dispute to a bare count of legislators.
He submitted that the Commission had itself, in the past, assessed a party’s majority through its national and State-level organisational bodies, precisely because directly counting the support of lakhs of primary members is practically impossible. The ECI, he argued, had leaned on observations about the lack of internal democracy in certain parties — including prolonged ad hoc arrangements and a failure to hold organisational elections — but those findings arose from a case involving the Janata Dal, whose highest bodies had not been properly constituted for years. That, he said, was not the position of the Shiv Sena.
Sibal contended that the party’s organisational elections had in fact been held, that the Shinde group had accepted that structure, and that its members had held positions under the party’s 2018 Constitution without objection for years — only to fall back, at the final stage before the ECI, on the older 1999 Constitution and claim that the 2018 document was undemocratic. The Commission, he argued, had then held the party’s Constitution to be undemocratic without giving prior notice, and used that finding against the Thackeray faction while deciding the symbol dispute.
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The circularity argument: a majority built on disqualifiable MLAs
The most consequential strand of Sibal’s argument tied the symbol dispute to the still-pending disqualification proceedings.
He submitted that the ECI had rested its legislative-majority test on the 39 MLAs supporting Shinde — the very legislators whose disqualification the Thackeray faction is separately seeking. If those MLAs were ultimately disqualified, he argued, the majority on which the Commission relied would disappear, and the entire basis of the test would become academic. On the numbers, Sibal noted that at the relevant time Shinde had 40 of 55 MLAs and 13 of 19 Lok Sabha MPs, while the Uddhav faction held 15 MLAs, all 12 Legislative Council members, four Lok Sabha MPs and all three Rajya Sabha MPs — meaning that had the contested MLAs been disqualified, the legislative majority could itself have shifted in the Thackeray faction’s favour.
He cautioned the Court against a reading of the law that would allow a faction to use the advantages of office — including, he alleged, pressure from agencies such as the ED or CBI — to build support after a split, and thereby retrospectively establish its claim to the party symbol. Such an approach, he submitted, would effectively encourage defections and undermine the anti-defection framework, allowing a person who becomes Chief Minister despite being liable to disqualification to consolidate support through the power of that office. Subsequent events, he argued, might bear on disqualification proceedings, but should not be used to establish, after the fact, whether a split had occurred in the political party.
‘This issue may need a relook’
Sibal urged the Court to reconsider the five-judge Bench ruling that permits the Election Commission to proceed with a symbol dispute even while disqualification petitions are pending, describing that aspect as particularly dangerous and seeking a reference to a seven-judge Bench. He submitted that the problem cut across party lines — “whoever is in power often ensures that disqualification proceedings are delayed. This is not about one political party — everyone has done it.”
The Chief Justice Suryakant appeared receptive to at least examining the structural question. He observed:
“This issue may need a relook. Decisions on disqualification should ideally be made by an independent tribunal. I am not saying the judiciary must be the only forum, but when disputes arise, they ultimately end up before the courts.”
When Sibal submitted that Parliament was unlikely to fix the problem because the party in power benefits from the present system, and that it therefore fell to the Court to correct it, Justice Bagchi struck a note of institutional balance:
“Preserving democracy is a collective responsibility. We are conscious of our role, but the Constitution is ultimately lived by the people.”
The Chief Justice added: “We should not underestimate the commitment of other institutions either.” Sibal responded that Parliament might continue to make laws that would be tested before the Court, and that the present case was “an important opportunity to protect the constitutional values we chose to uphold.”
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The jurisdictional argument on Section 29A
Sibal advanced a further line contending that the ECI lacked jurisdiction over the party’s internal constitutional arrangements altogether. He submitted that Section 29A(9) of the Representation of the People Act, 1951 requires a registered party only to inform the Commission when specified particulars change, so that its records can be updated, and does not confer any supervisory power over a party’s internal democracy.
He argued that the ECI’s reliance on its 2010 guidelines — to say that amendments to a party constitution must be communicated — was misplaced, since that requirement is not found in Section 29A itself and the guidelines apply at the registration stage, whereas the Shiv Sena had been registered long before 2010. On the residuary reference to “other particulars” in the provision, Sibal submitted that Parliament had explained it to be a power linked only to registration, allowing the Commission to seek information legitimately connected with registration rather than any material it considered necessary for unrelated purposes. When the Bench put to him that Section 29A(9) applies after registration but only to the particulars listed in the provision, Sibal agreed, adding that if the Commission had wanted the party to bring its structure in line with democratic norms, it should have issued a separate direction to that effect.
‘The Commission knew the conclusion it wanted to reach’
Sibal was pointed in his characterisation of the Commission’s approach, submitting that “the Commission knew the conclusion it wanted to reach and then found a route to get there.” When the Chief Justice observed that there had been no major change in the 2018 Constitution, Sibal agreed, and argued that despite this the ECI had refused to apply the organisational-wing majority test at all.
Addressing the finding that the party’s structure was undemocratic, he submitted that members of the Pratinidhi Sabha retained their independent right to vote, and that the appointment of some lower-level office-bearers by the Paksh Pramukh did not render the entire structure undemocratic. The 2018 amendment, he said, had mainly expanded the organisational structure — adding two posts, Samanvayak and Saman Sanghatak, as the party grew into rural areas — without reducing the existing membership; the top decision-making bodies remained elected, even as many administrative posts were filled by appointment. The Commission’s assumption that appointed office-bearers would automatically vote as the party leader wished, he argued, had no basis, and its conclusion that the structure was undemocratic was therefore fundamentally flawed and contrary to what Paragraph 15 of the Symbols Order permits.
Background: how the dispute arose
The litigation stems from the June 2022 split in the Shiv Sena, when Eknath Shinde led a rebellion of MLAs against then Chief Minister Uddhav Thackeray, toppling the Maha Vikas Aghadi government and forming a new government with the BJP, with Shinde as Chief Minister. Shinde’s faction then approached the Election Commission claiming to be the real Shiv Sena and staking claim to its name and reserved symbol.
By an order dated February 17, 2023, the ECI recognised the Shinde faction as the Shiv Sena and allotted it the “bow and arrow” symbol, relying substantially on the faction’s majority in the legislative wing. The Thackeray faction, permitted in the interim to use the name “Shiv Sena (Uddhav Balasaheb Thackeray)” and the “flaming torch” symbol, challenged that order before the Supreme Court, arguing that legislative majority alone cannot determine the “real” party and that the Commission had assumed a split without adequate evidence.
Running alongside is the disqualification dispute. In January 2024, Maharashtra Assembly Speaker Rahul Narwekar declined to disqualify MLAs of either faction, a ruling the Thackeray camp challenged as “patently unlawful and perverse” for, in its submission, rewarding defection by treating the Shinde group’s legislative majority as the will of the party. The Supreme Court had earlier, through a five-judge Constitution Bench in 2023, declined to stay the ECI proceedings and left the Commission free to decide the symbol dispute — the very ruling Sibal now asks a larger Bench to reconsider.
Appearance: Snr Advocate Kapil Sibal and Devadatt Kamat (for Uddhav Thackrey); Senior Advocates Neeraj Kishan Kaul and Maninder Singh (for Shinde)
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