The sharpest moment of the day’s hearing was a question from the Bench, not an argument from the Bar. If all three of the usual tests for deciding which faction is the party were problematic, Justice Bagchi asked, could the Election Commission not have denied the reserved symbol to both sides and let each test its support afresh, without either drawing on Balasaheb Thackeray’s legacy? Counsel for the Shinde faction said he would answer when he reached the impugned order. Nothing has been decided.
New Delhi: The Supreme Court on Tuesday continued hearing the Shiv Sena split case, in which the Uddhav Thackeray faction has challenged the Maharashtra Speaker’s refusal to disqualify MLAs of the Eknath Shinde faction under the Tenth Schedule, heard together with the Thackeray faction’s challenge to the Election Commission’s recognition of the Shinde faction as the official Shiv Sena.
The matter is before a Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana. Senior Advocate Neeraj Kishan Kaul continued his submissions for the Shinde faction.
The organisational-structure argument
Kaul traced the development of the test for resolving a symbol dispute from the Supreme Court’s decision in Sadiq Ali onwards, submitting that every faction claims to follow the party constitution, but that the real question is what the organisational structure actually shows. He submitted that the party had been run in an autocratic and ad hoc manner, with more than two-thirds of its members appointed by the party president rather than elected, so that the organisational structure was dominated by nominated members and did not genuinely reflect the aspirations of the party or its cadre.
He acknowledged that the Constitution Bench decision in Subhash Desai holds that legislative majority alone may not always be the appropriate test, particularly where disqualification proceedings are pending. But, he submitted, the Election Commission is a constitutional authority with broad powers, and if after examining the available options it finds that none of the other tests can fairly resolve the dispute, it may adopt whichever test is workable on the facts. The grassroots cadre, he said, was too large to be brought individually before the Commission, while the elected representatives were themselves divided and some faced disqualification, so that each of the three possible tests had its own limitations, leaving the Commission to adopt what it considered the most workable approach.
The Bench’s question
It was at this point that Justice Bagchi put the question that dominated the exchange. If all three tests had limitations, he observed, another course had been open to the Commission: it could have denied the reserved symbol to both factions, asked each side to choose a different symbol, and let them test their strength independently, without either side drawing on Balasaheb Thackeray’s legacy.
Kaul said he would address that specifically when he came to deal with the impugned Election Commission order, and that he had noted the query. He submitted that this Court has, in appropriate cases, accepted legislative majority as a valid test where it best reflects democratic support in the given circumstances, and that the Commission has wide powers and institutional expertise in matters of representative party democracy and must ultimately decide how a reserved symbol should be allotted.
Justice Bagchi clarified the nature of the Court’s scrutiny. The Court was not sitting in appeal over the Election Commission’s decision, he observed; what it was examining was how that discretionary power had been exercised. Kaul agreed, submitting that this was where the Commission’s plenary jurisdiction became important, and that when he came to the impugned order he would show why the test adopted was the correct one on the facts.
Disqualification and the symbol dispute
On the relationship between the symbol dispute and the pending disqualification proceedings, Kaul submitted that even if an MLA is later disqualified under the Tenth Schedule, that does not wipe out the election, the votes polled, or the vote share secured by the political party. He submitted that Sadiq Ali was decided before the Tenth Schedule came into existence but that this did not alter the principle, and that from Sadiq Ali onwards the Court has recognised legislative majority as a relevant test under Paragraph 15 of the Symbols Order, while adding that legislative strength should ordinarily not be the sole test and should be weighed with other factors.
Justice Bagchi pressed the point by reference to Subhash Desai. The Constitution Bench, he noted, had held that the symbol dispute need not wait for the disqualification proceedings because the two operate in different fields: the symbol dispute concerns which faction represents the political party, whereas disqualification examines the conduct of an individual legislator inside the Assembly, and the reserved symbol belongs to the political party, not the legislative wing. Kaul said he did not dispute that proposition.
The Bench then put the question at the heart of the day: even if legislative majority is a relevant consideration, can it safely become the decisive test when disqualification proceedings against those very legislators are still pending. Kaul indicated his submission on that was twofold, and the hearing continued.
Why it matters
The day’s exchange sharpened the central problem of the symbol dispute into a single, concrete question. When a party splits and no clean test cleanly identifies the true party, the Election Commission must still choose, and every available basis for choosing is contestable: the organisational count can be skewed by nominated members, the legislative count can be skewed by defections and pending disqualifications, and a membership referendum is impractical. Justice Bagchi’s suggestion, that the Commission could have declined to award the historic symbol to either side and made both earn a fresh mandate, is a fourth path that sidesteps all three, and its attraction is that it does not let a contested test hand one faction the inheritance of the undivided party.
The tension the Bench is probing is between deference and scrutiny. The Court has been clear that it is not sitting in appeal over the Commission and will not substitute its own preferred test; but reviewing how a discretionary power was exercised necessarily involves asking whether a more appropriate option was available and passed over. If the Commission leaned decisively on legislative majority while the very legislators making up that majority face disqualification, the question is whether that was a workable choice or a circular one, borrowing strength from numbers whose validity is itself sub judice.
None of this is a ruling. These are the submissions of one faction and the questions of one member of a three-judge Bench, in a part-heard matter in which the Thackeray faction’s arguments and the Court’s conclusions are still to come. What the exchange signals is the ground on which the case is likely to be decided: not whether the Commission had the power to choose a test, which is largely common ground, but whether the test it chose can be sustained on facts where every alternative was flawed and the reserved symbol carried the weight of a founder’s legacy.
Case: Shiv Sena (UBT) faction’s challenge to the Maharashtra Speaker’s refusal to disqualify Eknath Shinde faction MLAs, heard with the challenge to the Election Commission’s recognition of the Shinde faction as the Shiv Sena
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. Submissions of the Shinde faction continuing. No findings recorded.