The sharpest thread of the day came from the Bench, not the Bar. Justice Bagchi accepted that the Court cannot substitute its own discretion for the Election Commission’s, but pressed whether the Commission had reasonably considered all the options open to it, and raised a question he said the earlier judgments had not addressed: a voter today often votes for the party, so when a representative later switches sides, can that original mandate still be read as support for the faction he has since joined? These are the Bench’s questions in a part-heard matter; nothing has been decided.
New Delhi: As the Supreme Court continued hearing the Shiv Sena dispute over the Election Commission’s recognition of the Eknath Shinde faction and the allotment of the bow-and-arrow symbol, Justice Joymalya Bagchi pressed a series of questions on the limits of judicial review and on whether the legislative-majority test can bear the weight placed on it where legislators have changed sides.
The matter is before a Bench of Chief Justice of India Surya Kant, Justice Bagchi and Justice V. Mohana, with Senior Advocate Neeraj Kishan Kaul appearing for the Shinde faction.
The standard of review
Justice Bagchi was careful to frame the Court’s role narrowly. In judicial review, he observed, the Court does not substitute its own discretion for that of the authority; but it can examine how that discretion was exercised, including whether relevant considerations were taken into account and whether a relevant, possible alternative outcome was explored.
He made clear he was not holding the Commission’s decision to be wrong. The issue, he said, was narrower and arose from the standpoint of judicial review: had the Commission reasonably considered all the available options before exercising its discretion? The Commission could certainly have rejected a continuation of the interim arrangement for reasons such as the sentiment attached to the original symbol, but its order appeared to reflect a “what other option is there?” approach, given the practical difficulty that it could not realistically examine the entire party cadre or conduct a referendum among all Shiv Sena members.
The question the earlier judgments did not answer
The most striking observation went to the foundation of the legislative-majority test itself. Justice Bagchi noted that Sadiq Ali draws a distinction between the voter and the elected representative, but observed that today a voter often votes for the political party rather than merely the individual candidate. Electoral numbers, he accepted, are certainly relevant in determining a party’s national, regional or recognised status.
The difficulty, he said, arises when political alignments change after the election:
If an elected representative later moves away from the party, creates a split or adopts another political position, can that representative’s original electoral mandate still be treated as an accurate reflection of support for the faction they subsequently joined? That, Justice Bagchi observed, is an issue which has not been considered in the earlier decisions.
It was a pointed challenge to the premise of the Shinde faction’s vote-share arithmetic: the votes those legislators polled were cast when they stood as Shiv Sena candidates, and whether that support can be transferred to the faction they later formed is, on the Bench’s framing, an open question.
Disqualification and the effect of Subhash Desai
On the relationship with the pending disqualification proceedings, Justice Bagchi cautioned that they could not simply be brushed aside as wholly unrelated. Subhash Desai, he noted, had dealt with a situation where the political party and the legislature faction had nominated different whips, with the latter claiming leadership of the party, and the question whether such conduct could itself be relevant to determining whether a split had occurred was an important consideration. While the practical consequence of disqualification might no longer survive, given that a new Assembly had since been elected, the Court could still examine whether the Speaker’s order was correct and grant declaratory relief.
He also observed that Subhash Desai had not been before the Commission when it decided the dispute, which raised the question whether the Commission needed to reconsider its approach to the legislative-majority test in light of that judgment. Subhash Desai, he noted, does not place a constitutional restriction on the Commission’s powers, but indicates that a deferential approach may be required in certain circumstances. That was why, he explained, he had asked whether the Commission had considered a third option; he was not saying that option was necessarily correct, only asking whether it had been considered at all. The legal position needed to be understood and settled, he added, because the ramifications went far beyond this dispute and could affect similar cases in future.
Kaul, for his part, maintained that Subhash Desai does not say the legislative-majority test becomes irrelevant merely because a disqualification petition is pending, and warned that a contrary rule would allow a party to defeat the test simply by filing a petition. He said he would take the Court through the relevant paragraphs as he proceeded.
Why it matters
The questions Justice Bagchi raised go deeper than the outcome of a single symbol dispute, which is why he said the legal position needed to be settled for cases beyond this one. The legislative-majority test, accepted since Sadiq Ali, rests on the idea that the legislators who command a majority carry the party’s electoral mandate. His observation exposes a fault line in that idea in the age of the anti-defection law: if a voter votes for the party and its symbol, the mandate arguably belongs to the party, not to a legislator who later carries it into a breakaway faction. Whether the test can survive that critique unchanged, or needs to be qualified where the legislators counted are the very ones who split away, is a question the earlier cases, on the Bench’s own reading, did not confront.
The judicial-review framing keeps this within bounds. The Court is not being asked to decide which faction is the “real” Shiv Sena, or to pick a test of its own; it is asking whether the Commission, exercising a discretionary power, took account of the relevant considerations and genuinely weighed the available options, or reached for the legislative test by default because the alternatives were impractical. That distinction, between a wrong decision and an inadequately reasoned exercise of discretion, is where cases of this kind are won and lost, and Justice Bagchi’s “was the third option even considered?” is aimed squarely at it.
None of this is a conclusion. These are the questions of one member of a three-judge Bench, put to test an argument still being made, in a matter where the Thackeray faction is yet to be heard and the Court has expressly reserved its view. What the exchange signals is the ground on which the case may turn: not whether the Commission had the power to choose the legislative test, which is largely common ground, but whether, after Subhash Desai and in a defection setting, that choice can be sustained as a reasoned one. The hearing resumes next week.
Case: Challenge to the Election Commission’s recognition of the Eknath Shinde faction as the Shiv Sena, heard with connected matters
Bench: Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana, Supreme Court of India
Appearing: Senior Advocate Neeraj Kishan Kaul for the Shinde faction
Status: Part-heard. Bench observations recorded during argument; no findings. Hearing to resume next week.