New Delhi: The split in the Shiv Sena was not triggered by a leadership dispute but by then party chief Uddhav Thackeray’s decision to set aside the party’s ideology and align with the Congress, senior counsel Neeraj Kishan Kaul, appearing for Chief Minister Eknath Shinde’s faction, argued before the Supreme Court.

Kaul also alleged that Thackeray had never attached importance to internal democracy and had run the party as though it were his personal property.

The Supreme Court is hearing a petition filed by the Uddhav Thackeray faction in 2024 challenging the Maharashtra Assembly Speaker’s decision declining to disqualify MLAs of the Shinde faction under the Tenth Schedule of the Constitution. The plea also challenges the Election Commission’s decision recognising the Shinde faction as the Shiv Sena and allotting it the party’s name and ‘bow and arrow’ symbol.

While defending the Election Commission’s decision, Kaul referred to the evolution of the criteria used to resolve disputes within political parties since the Sadiq Ali case. He argued that although the Thackeray faction claimed that the party constitution was being followed, its actual organisational structure revealed an “authoritarian” functioning and a large number of ad hoc appointments.

Kaul pointed out that more than two-thirds of the members of the party’s organisational structure had been appointed by the party president. He questioned whether there was any evidence to establish that such a structure reflected the wishes and views of grassroots party workers.

‘Legislative Majority Was a Workable Criterion’

 In the “specific and unusual circumstances” of the Shiv Sena dispute, the Election Commission had concluded that legislative majority was the only workable criterion, Kaul submitted.

Referring to the Constitution Bench judgment in Subhash Desai, he said it would be misleading to suggest that the Election Commission was completely barred from considering legislative majority.

The Election Commission, being a constitutional authority, has broad powers to determine an appropriate criterion based on the facts and circumstances of a particular case, Kaul argued. If, after considering all available criteria, the Commission concludes that no other criterion is workable, it can rely on legislative majority, he submitted.

‘Could Both Factions Have Been Given Separate Symbols?’

Justice Joymalya Bagchi raised a significant question during the hearing. If the organisational structure, legislative majority and other criteria each had limitations, could the Election Commission not have directed both factions to contest elections on separate symbols instead of allotting the reserved symbol to either side?

Justice Bagchi indicated that an alternative could have been for both factions to contest elections on the basis of their own strength rather than on the legacy of Balasaheb Thackeray.

Kaul said he would address the issue in the next part of his submissions. He maintained that the Election Commission has broad powers in matters relating to reserved symbols and possesses the requisite institutional expertise in the field of representative party democracy.

Justice Bagchi, however, clarified that the court was not sitting in the Election Commission’s chair to decide the dispute afresh. The judicial review was confined to examining whether the Commission had exercised its discretionary powers on a proper legal basis. If all the available criteria were found to be tainted, the Commission could have considered denying the reserved symbol to both factions, he observed.

Disqualification Does Not Affect Votes: Kaul

Kaul also addressed the issue of disqualification. Even if an MLA is disqualified under the Tenth Schedule, it does not invalidate the election concerned, nor does it nullify the votes secured by the MLA or the vote share of the political party, he argued.

He submitted that although the Sadiq Ali judgment predates the Tenth Schedule, it remains relevant to the criteria governing disputes over party symbols. Under Paragraph 15 of the Symbols Order, legislative majority can be a valid criterion in appropriate circumstances, though it should not ordinarily be treated as the sole criterion and other relevant factors must also be considered, Kaul said.

Justice Bagchi, while referring to the Constitution Bench judgment in Subhash Desai, observed that a dispute over a party symbol concerns the political party, whereas disqualification concerns the conduct of individual legislators in the House. Therefore, there was no necessity to defer a decision on the symbol dispute until the disqualification proceedings were concluded.

A legislative party may reflect a political party, but the decision on a reserved symbol is for the political party and not for a legislative group, Justice Bagchi observed.

He also questioned whether legislative majority could always be regarded as a decisive or safe criterion when disqualification proceedings were pending against members constituting that majority.

Kaul said he would address the issue in two parts in his further submissions. The hearing centred on the interrelationship between the identity of the Shiv Sena, its organisational structure, legislative majority, disqualification proceedings and the Election Commission’s powers.