The Shinde faction’s counsel put numbers at the centre of his case: on his figures, the MLAs and MPs backing his side carry the overwhelming share of the votes Shiv Sena won, and that legislative majority, he argued, is a valid test the Election Commission was entitled to apply. He met the objection that pending disqualification should freeze the symbol question by pointing out that, as of today, every disqualification proceeding against his faction has been dismissed and none is stayed. He also resisted the Court’s suggestion that the two interim symbols simply be made permanent.
New Delhi: The Supreme Court resumed hearing the Shiv Sena dispute concerning the Election Commission’s decision to recognise the Eknath Shinde-led faction as the “real Shiv Sena” and to allot it the party’s bow-and-arrow symbol, with Senior Advocate Neeraj Kishan Kaul continuing his submissions for the Shinde faction.
The matter is before a Bench of Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana.
The numbers
Kaul anchored his case in the vote share behind the rival groups of legislators. Of the votes secured by Shiv Sena’s 55 winning MLAs in the last general election, he submitted, the 40 MLAs supporting his side accounted for 76%, while the 15 MLAs backing the petitioner accounted for 23.5%. Taking the party’s total of 90,48,789 votes in the 2019 general election, including those secured by unsuccessful candidates, the 40 MLAs accounted for 40% and the petitioner’s 15 MLAs for 12%. On the parliamentary side, of the votes secured by Shiv Sena’s 18 elected MPs, the 13 MPs supporting his side accounted for 73% and those backing the petitioner for 27%.
From Sadiq Ali onwards, Kaul submitted, the legislative-majority test under Paragraph 15 of the Symbols Order has been accepted as a legitimate test for determining whether a split has occurred in a political party, and the Election Commission had not stopped at Assembly numbers but had also weighed vote share, votes polled, and representation in Parliament and the Assembly.
The disqualification objection
Addressing the argument that legislators facing disqualification cannot be counted under the Symbols Order until their disqualification is decided, Kaul submitted that the pending disqualification petitions had no bearing on the present case. As matters stood, he said, all disqualification proceedings against the Shinde faction had been dismissed; the Supreme Court had issued notice in the special leave petition but had not stayed the order, so there was no cloud of disqualification hanging over the Shinde MPs today.
He relied on the Constitution Bench decision in Subhash Desai, which, he submitted, held that an Election Commission decision under the Symbols Order need not be consistent with the Speaker’s decision under the Tenth Schedule, because the Speaker and the Commission decide different questions, on different considerations and for different purposes. The Commission, a constitutional authority entrusted with the superintendence, direction and control of elections, could not be prevented indefinitely from performing its constitutional duties merely because proceedings were pending before another constitutional authority; proceedings before one such authority could not be kept on hold to await another.
Kaul acknowledged that Subhash Desai recognises that where disqualification proceedings are pending, the legislative-majority test may be diluted and in some cases even rendered futile, but submitted that it does not invalidate the test itself; rather, it leaves the Commission to decide, on the facts of each case, whether that test alone should be adopted or another fashioned. In any event, he pointed out, Subhash Desai had not been delivered when the Commission decided this dispute. He cautioned against a rule that the mere filing of a disqualification petition, even a frivolous one, would require legislative strength to be ignored altogether, which, he said, would carry its own dangers.
Against making the interim symbols permanent
The Court had asked why the two interim symbols could not themselves become the final arrangement in a case like this. Kaul submitted that this would not be the appropriate course.
Drawing again on Sadiq Ali, he submitted that the symbol allotted to a recognised political party carries a particular significance, and that there is an important distinction between registration and recognition: a party may be registered under the Representation of the People Act, but its recognition as a State or national party, which carries entitlement to a reserved symbol, is governed by the Symbols Order and its vote-share criteria. Given India’s social conditions, he added, a large section of the electorate may identify a party primarily through its symbol, which is part of the rationale behind the Symbols Order. He noted that the Shinde faction had been allotted the symbol since 2023 and had contested election after election with it, while the petitioners had continued under an interim symbol only through the Court’s protection, without which they would have had to seek fresh registration and recognition as a State party under Section 29A of the Representation of the People Act.
The ultimate question, Kaul submitted, was whether the Commission’s decision was so perverse, unreasonable or based on extraneous considerations as to warrant the Court’s interference.
Why it matters
The Shinde faction’s case, distilled, is that the Election Commission applied a recognised test to a clear set of numbers and that the Court, sitting in judicial review, should not disturb a discretionary decision that is not shown to be perverse. The vote-share figures are deployed to show that the choice of the legislative-majority test was not a narrow head-count of defecting MLAs but a broader measure of demonstrated electoral support, which is the answer to the criticism that legislative strength can be manufactured by defection.
The disqualification point is the pressure the faction most needs to relieve, and its answer is largely temporal: whatever the theory about pending disqualification diluting the legislative test, on the ground there is currently no operative disqualification against its legislators, and Subhash Desai, which supplies the dilution argument, post-dated the Commission’s order. Whether a decision can be judged only by what was known when it was made, or must be revisited in light of a later Constitution Bench ruling, is one of the questions the Bench has flagged, and the faction’s resistance to reopening it is understandable.
The refusal to accept a permanent split of symbols is the faction protecting the prize it has already secured. Having contested successive elections on the bow and arrow, it has every incentive to keep it and none to accept a settlement that would hand the rival group equal, permanent standing under a new symbol. That these are the faction’s submissions, and not findings, should be kept in view: the Thackeray side’s response and the Court’s conclusions are still to come, and the Bench has made clear it is examining how the Commission exercised its discretion, not substituting its own. The hearing will resume 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. Submissions of the Shinde faction continuing; hearing to resume next week. No findings recorded.