The Bench is hearing two linked challenges together: the Thackeray faction’s case against the Speaker’s refusal to disqualify the Shinde faction MLAs, and its challenge to the Election Commission’s decision recognising the Shinde group as the Shiv Sena. Senior Advocate Neeraj Kishan Kaul opened for the Shinde side. The matter is part-heard.
New Delhi: The Supreme Court on Monday resumed hearing the Shiv Sena split case, in which the Uddhav Thackeray faction has challenged the decision of the Maharashtra Speaker refusing to disqualify MLAs belonging to the Eknath Shinde faction.
The Bench led by Chief Justice of India Surya Kant is hearing that matter together with the Thackeray faction’s challenge to the Election Commission of India’s decision recognising the Shinde faction as the Shiv Sena and allotting it the party’s name and symbol.
The submissions
Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde side, urged the Court to examine the complete record, submitting that a key issue was whether the party constitution being relied upon by the other side had ever been placed before and registered with the Election Commission. According to him, the constitution now relied upon by the Thackeray faction had not been registered with the ECI, and it was the 1999 constitution that came to be recognised after detailed correspondence, which is why the Commission proceeded on the basis of that document.
Kaul submitted that the Election Commission had not been deciding what amendments a political party could or could not make to its constitution. Its concern, he argued, was whether the party’s organisational structure genuinely reflected the will of the cadre, and where key positions were filled through ad hoc or unelected appointments, that structure might not truly represent the cadre’s mandate. This, he said, was the principle running through the Commission’s earlier decisions.
Responding to the suggestion that the Commission’s approach was unprecedented, Kaul submitted that for decades the ECI had engaged with political parties on questions of internal democracy and party constitutions, and that this flowed from its wide powers under Article 324. On that footing, he argued, it could not be said to lack jurisdiction even to examine whether a party constitution created a genuinely democratic structure with elected office-bearers rather than ad hoc appointees.
Kaul was careful to define the limits of what the Commission does. It was not sitting like a civil court to decide whether internal party elections were valid or who was properly elected, he submitted; its task was broader, and while resolving such disputes it could look at several factors, including the party constitution, the organisational structure and the strength of the legislative wing. The mere existence of a party constitution, he argued, could not stop the Commission from examining how the organisation actually functioned, and where substantial parts of a party’s organisation were run through ad hoc appointments rather than an elected structure, the Commission was entitled to take that into account in deciding which faction truly represented the party.
Split in the political party, not just the legislature
On the central characterisation of the dispute, Kaul submitted that the Shinde side’s case had never been that the split was confined to the legislative party. There was, he argued, a split in the political party itself, and the real question was which faction represented the Shiv Sena.
He accepted the proposition, which he said flowed from the decision in Prasad Maurya, that a split must be in the political party and not merely among legislators, and stated that the Shinde side did not dispute it. Its case, he submitted, was that its challenge arose under the Symbols Order rather than the Tenth Schedule, and that the split had always been within the original political party, the fact that it first became visible through meetings of the legislative party not meaning it was only a legislative split. He referred to growing discontent within the cadre, with party workers facing questions over the alliance with parties they considered ideologically opposed.
Kaul submitted that the petitioners’ own reliance on the test of organisational majority was why the Commission had looked at the 2018 constitution at all. The organisational majority test mattered, he argued, because the Commission could not realistically conduct a referendum of every primary member of a party; the real strength of a party lay in its cadre and grassroots workers, and if there was a disconnect between that cadre and ad hoc nominated bodies, simply relying on an organisational majority might not truly reflect the will of the party.
The two questions before the Court
The case is the latest chapter in the litigation arising from the 2022 split in the Shiv Sena, and it brings together two distinct legal tracks that have run in parallel.
The first is the disqualification track under the Tenth Schedule, where the Thackeray faction says the Speaker erred in declining to disqualify the Shinde faction MLAs. The second is the symbol track under the Election Symbols (Reservation and Allotment) Order, 1968, where it challenges the Commission’s recognition of the Shinde faction as the real Shiv Sena. The submissions on Monday went substantially to the second, and to the standards the Commission may apply in deciding which of two rival groups is the party.
Nothing has been decided. The arguments set out above are those of counsel for the Shinde faction, advanced in an ongoing hearing, and the Thackeray faction’s submissions and the Court’s own view are yet to be recorded. The matter is to resume the following day at 2 pm.
Case: Challenge by the Shiv Sena (UBT) faction to the Maharashtra Speaker’s decision declining 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 and companion judges, Supreme Court of India
Appearing: Senior Advocate Neeraj Kishan Kaul for the Shinde faction
Status: Part-heard. Matter to resume the next day at 2 pm. No findings recorded.