Whom should the sentiment attached to the bow-and-arrow symbol favour? Justice Joymalya Bagchi put that question to the Shinde faction as the Supreme Court resumed the Shiv Sena case on Tuesday, while Senior Advocate Neeraj Kishan Kaul argued that the Speaker must first decide which group is the real party before ruling on defection.
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New Delhi: Resuming hearing on the petitions arising from the Shiv Sena split in Maharashtra, the Supreme Court on Tuesday heard Senior Advocate Neeraj Kishan Kaul continue his submissions for the Eknath Shinde faction on the timing of disqualification, the test for identifying the political party and the source of the whip [Sunil Prabhu v. Speaker, Maharashtra Legislative Assembly and connected matters].
A Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana is hearing the matter.
Rana, read in its own facts
Earlier in the day, Kaul took on the argument that the Court’s decision in Rana makes disqualification operate retrospectively, calling it “a completely misleading reading of Rana”. In that case, he explained, disqualification petitions were filed first and a split came later, and the Speaker had decided the split first. The Court held that the Speaker could not avoid deciding the disqualification petitions, which had to be decided on the facts as they stood when they were filed:
“You cannot decide the split first and then use that subsequent development to determine an earlier disqualification.”
In any case, he submitted, the point was “no longer res integra”: Subhash Desai holds that disqualification is prospective, and in Shivraj Singh Chouhan the Court refused to bar a legislator facing a pending petition from taking part in the House, because until disqualification actually takes place the matter remains uncertain.
Who is the party? The Speaker’s prima facie inquiry
On what the Speaker must examine, Kaul said that while deciding petitions under Paragraph 2(1)(a) of the Tenth Schedule, the Speaker may have to decide which faction represents the political party when rival groups emerge. With Paragraph 3 deleted, he said, both factions cannot be treated as the original party, so the Speaker must first settle which faction, if any, is the party before asking whether anyone voluntarily gave up membership.
That finding, he submitted, is only prima facie and does not affect proceedings under Paragraph 15 of the Election Symbols Order. The Speaker must look at the party constitution and its rules on organisation and leadership, and where rival versions are produced, the one submitted to the Election Commission before the factions emerged, “with the consent of both factions”, is the relevant one. This, he said, stops either side from later amending the constitution to suit itself.
‘This is not a game of numbers’
Kaul said the Speaker cannot decide the question merely by seeing which group has a majority in the Assembly. “This is not a game of numbers. There is something more to it,” he said, adding that the party’s leadership structure outside the House is also relevant. But he disputed what he called the impression that the legislative-majority test can never be applied, and asked whether the Court would interfere if a constitutional authority examined every available test, gave reasons and chose that one.
The Bench observed that even if Subhash Desai had not been decided at that stage, “a judgment interprets the law”, and the law as interpreted in a later judgment would bind even in respect of past events. Kaul agreed, but said his submission was that Subhash Desai “does not say what the other side claims it says”, and that the judgment must be read as a whole rather than by picking “a word here or a line there”.
The whip and the ‘umbilical cord’
On whether the legislature party or the political party appoints the whip, Kaul argued that holding it to be the legislature party would “sever the figurative umbilical cord connecting a member of the House to the political party”. Legislators, he said, cannot rely on the party to get elected, campaign on its promises and seek votes on its name, and then function as a group of MLAs owing it no allegiance. “That is not the system of governance envisaged by the Constitution,” he said.
Where the organisational test falls short
Justice Bagchi then turned to the organisational test. Referring to Kaul’s point that where a party constitution is primarily undemocratic, post-holders may still hold their posts lawfully, he asked: “but does that truly reflect support on the ground?” Kaul replied that, “with so many nominees”, the organisational test was not thought to be a good test. The judge noted that the legislative party had been considered a good test because of the muddled position on disqualification, and posed a scenario: if the party named one whip and two or three others named another, voting against the party’s direction could itself attract disqualification under Paragraph 2(1)(b).
If that decision were later found to be wrong, a declaratory writ was well known, and the question then was what that would mean for the proceedings under Paragraph 15.
A question about ‘constitutional sin’
The sharpest exchange of the day came after lunch. Justice Bagchi observed that “the liberty remains with the political party”, and that if disqualified members go away, the remaining members get a different symbol. As Kaul turned to Sadiq Ali, he asked:
“Will the sentiment attached to the symbol operate in favour of those who have committed the constitutional sin, or those who complained of the constitutional sin?”
Kaul said he would deal with it as he went along, but that in his view the symbol goes to whoever establishes that he represents the real political party. Justice Bagchi responded that “given the slippery slope of Indian politics”, even an extremely discerning Commission would find it very difficult to work out who has the majority, adding: “Membership itself is nebulous.” Counting grassroots workers on each side, he said, was practically impossible, which is what Sadiq Ali recognises.
The Election Commission’s constitutional power
Kaul also addressed the Election Commission’s authority, which he said flows from the Constitution and must be read liberally so that its purpose can be achieved. Relying on Association for Democratic Reforms v. Election Commission of India, he pointed to the holding that the Commission inherently has jurisdiction to issue general and regulatory directions, and that Article 324 vests in it functions that are essentially administrative and “marginally even adjudicative or legislative”.
The two challenges before the Bench
The lead petition, filed by Sunil Prabhu, challenges the Maharashtra Assembly Speaker’s decision of January 10, 2024 declining to disqualify MLAs of the Shinde faction under the Tenth Schedule. A connected petition by Uddhav Thackeray challenges the Election Commission’s decision recognising the Shinde faction as the official Shiv Sena and allotting it the bow-and-arrow symbol. When the hearing resumed in September, Kaul had defended the Commission’s use of the legislative-majority test with vote-share figures, and Justice Bagchi had questioned whether a defector’s original mandate can be counted for the faction he later joined.
What was heard on Tuesday was the Shinde faction’s case and the Bench’s questions to test it; the Thackeray side’s reply is still to come, and the Court has reached no conclusion. Arguments are to continue on Wednesday.
Case Details: Sunil Prabhu v. Speaker, Maharashtra Legislative Assembly, with Uddhav Thackeray’s challenge to the Election Commission’s Shiv Sena order | Court: Supreme Court of India | Bench: Chief Justice of India Surya Kant, Justice Joymalya Bagchi, Justice V. Mohana | Hearing: October 6, 2026 | Status: Part-heard; arguments continuing.
Appearances: Senior Advocate Neeraj Kishan Kaul for the Shinde faction.