Part-heard, with no conclusion recorded: in the Shiv Sena case on Thursday, the Shinde faction told the Supreme Court that a symbol is not a “continuing cause of action” that moves between groups with later events, so the bow-and-arrow symbol cannot be taken back if the faction that won it is later disqualified.
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New Delhi: Hearing the challenge to the Election Commission of India’s decision recognising the Eknath Shinde-led faction as the real Shiv Sena and allotting it the bow-and-arrow symbol, the Supreme Court on Thursday heard Senior Advocate Neeraj Kishan Kaul argue that once the Commission found which faction was the real party, it was bound to give that faction the symbol [Sunil Prabhu v. Eknath Shinde].
A Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana is hearing the matter.
Where the case stands
The lead petition by Sunil Prabhu challenges the Maharashtra Speaker’s decision of January 10, 2024 declining to disqualify Shinde faction MLAs, and Uddhav Thackeray challenges the Commission’s symbol order. Thursday’s hearing was devoted to the Shinde faction’s submissions; the Court has recorded no conclusion. The hearing will continue next week.
A fourth option, asked Justice Bagchi
Would a later disqualification of the faction that was given the symbol matter, Justice Bagchi asked, either for revisiting that decision or for exploring a fourth option? Kaul said it would not. The Commission, he argued, had to decide on the facts that existed when it ruled, and a symbol is not a “continuing cause of action” that shifts from one faction to another after later events.
He relied on the Constitution Bench ruling in Subhash Desai for the submission that disqualification operates prospectively, and that members left in the House after any disqualification would have to apply for a new symbol.
The symbol follows the finding
Kaul told the Bench that neither faction had argued before the Commission that the symbol should be withheld from both. In his submission, once the Commission concluded that one group was the real party, the symbol had to go to that group, and he cited Subhash Desai and Sadiq Ali for it.
The Commission, he added, had examined the party constitution, party posts, votes polled, legislative strength and membership. A court sitting in judicial review, he said, should step in only if the decision was perverse, unreasonable, mala fide or driven by extraneous considerations.
The legislative-majority test and the ‘new jurisprudence’ charge
Kaul accepted that Subhash Desai described the legislative-majority test as “diluted” or “weak” in some situations, but argued that the judgment does not exclude any test. He also rejected the petitioners’ argument that the Commission had created new law for this dispute by examining the party constitution, saying the Commission has long insisted on democratic structures within parties.
Case Details: Sunil Prabhu v. Eknath Shinde | SLP(C) No. 1644-1662/2024 and connected matters | Court: Supreme Court of India | Bench: Chief Justice of India Surya Kant, Justice Joymalya Bagchi, Justice V. Mohana | Hearing: October 8, 2026 | Status: Part-heard; to continue next week.
Appearances: Senior Advocate Neeraj Kishan Kaul for the Shinde faction.