The argument is about how far the Election Commission may go in a symbol dispute. Kaul’s submission is that it is not confined to the text of a party constitution and may examine whether the organisation is genuinely elected or run through ad hoc appointees. The Thackeray faction says the Commission had no business examining the constitution at all. The Court has recorded no view.
New Delhi: As the Supreme Court resumed hearing the Shiv Sena split case, a question that has run beneath the whole dispute came to the surface: how far may the Election Commission of India go, in a contest between two factions, in looking behind a party’s written constitution to the way the organisation actually functions.
Appearing for the Eknath Shinde faction before the Bench led by Chief Justice of India Surya Kant, Senior Advocate Neeraj Kishan Kaul advanced a broad reading of the Commission’s powers. The submissions below are his, made in an ongoing hearing, and the opposing arguments and the Court’s own conclusions are yet to come.
The power claimed for the Commission
Kaul’s central proposition was that the mere existence of a party constitution cannot prevent the Election Commission from examining how the organisation actually works. The Commission, he submitted, was not deciding what amendments a party may make to its constitution, nor sitting as a civil court to rule on the validity of internal elections or on who was properly elected. Its task was broader: to determine, when two groups each claim to be the party, which of them truly represents it.
In performing that task, he argued, the Commission was entitled to weigh several factors together, the party constitution, the organisational structure and the strength of the legislative wing among them. Where substantial parts of an organisation were run through ad hoc or unelected appointments rather than an elected structure, the Commission could take that into account in deciding which faction represented the party, because such a structure might not genuinely reflect the cadre’s mandate.
Kaul located this power in Article 324 of the Constitution, submitting that the Commission’s authority to superintend elections was wide, that it had for decades engaged with political parties on questions of internal democracy and party constitutions, and that its approach in this case was therefore not the novelty the petitioners portrayed it to be.
Which constitution, and why it matters
A dispute over documents sits at the heart of the argument. Kaul submitted that the constitution now relied upon by the Thackeray faction had never been registered with the Election Commission, and that it was the 1999 constitution which came to be recognised after detailed correspondence, on the basis of which the Commission proceeded.
He submitted that the Commission had examined the 2018 constitution precisely because the petitioners themselves invoked the test of organisational majority. Once a faction rests its claim on having a majority within the organisation, the argument runs, the Commission must be able to look at how that organisation is constituted, which brings the constitution and the manner of appointments squarely into view.
The limits of the organisational majority test
Kaul’s most developed submission concerned why an organisational majority cannot be treated as a simple head-count. The Commission, he said, could not realistically conduct a referendum of every primary member of a political party. The real strength of a party lay instead in its cadre and grassroots workers, who are directly connected with the electorate. Where there was a disconnect between that cadre and ad hoc nominated bodies, relying on an organisational majority drawn from those bodies might not truly reflect the will of the party.
On the nature of the split, he maintained that the Shinde side had never contended that it was confined to the legislative party. Accepting, on the authority of Prasad Maurya, that a split must be in the political party and not merely among legislators, he submitted that this was in fact the Shinde side’s own case: the split was within the original political party, and the fact that it first surfaced through meetings of the legislative party did not make it a merely legislative split. He traced it to discontent in the cadre over the party’s alliances.
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Why it matters
The question Kaul’s argument raises reaches well beyond the Shiv Sena. When a party splits and two groups claim the same name and symbol, the Election Commission must choose between them, and the test it applies decides who inherits the party. If the Commission is confined to the four corners of a registered constitution and a mechanical count of office-bearers, the outcome turns on paperwork. If it may look behind the document to ask whether the structure is genuinely elected or a shell of ad hoc appointees, it acquires a far more searching, and far more discretionary, role.
Each reading carries a cost, and that is the tension the Court will have to resolve. A power to look behind the constitution lets the Commission prevent a paper majority from capturing a party, but it also hands an unelected body a wide and hard-to-review discretion over the internal life of political parties, exercised, inevitably, in the charged aftermath of a split. A power confined to the registered document is more predictable and less intrusive, but it may reward whichever faction controls the organisational machinery on paper, regardless of where the cadre’s loyalty lies.
The reliance on Article 324 is where that debate will be tested. The provision has been read expansively in the past to fill gaps in electoral law, but the further it is stretched into the internal functioning of parties, the sharper the question of where its limits lie. The petitioners’ position, that the Commission had no authority under the Symbols Order to examine the validity of the 2018 constitution at all, is the mirror image of Kaul’s, and the Court’s eventual choice between them will shape how future symbol disputes are decided.
For now, these are one side’s submissions in a part-heard matter. The Thackeray faction is yet to respond in full, the Court has recorded no view, and the hearing continues.
Case: Challenge by the Shiv Sena (UBT) faction to the Election Commission’s recognition of the Eknath Shinde faction as the Shiv Sena, heard with the challenge to the Maharashtra Speaker’s refusal to disqualify Shinde faction MLAs
Bench: Chief Justice of India Surya Kant and companion judges, Supreme Court of India
Appearing: Senior Advocate Neeraj Kishan Kaul for the Shinde faction
Status: Part-heard. Submissions of the Shinde faction in progress. No findings recorded.