Shiv Sena Symbol Row: Supreme Court Questions ECI's Decision To Allot Bow-And-Arrow Symbol To Eknath Shinde Faction
· Free Press Journal
The Supreme Court has questioned why the Election Commission of India (ECI) did not consider denying the Shiv Sena's bow-and-arrow symbol to both rival factions and allowing them to contest on their own strength, instead of giving one group the advantage of the existing party name and symbol, as it continued hearing challenges arising from the 2022 split in the party.
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A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana was hearing the petition related to the dispute. These include a plea by the Uddhav Thackeray faction challenging the ECI's decision to recognise the Eknath Shinde faction as the Shiv Sena and allot it the party's bow-and-arrow symbol.
'Fight On Your Own Strength'
During the hearing, Senior Advocate Neeraj Kishan Kaul, representing the Shinde faction, defended the ECI's decision to consider the strength of the two factions among elected legislators.
Justice Bagchi asked why the ECI could not have taken a neutral approach if the available methods were not enough to decide which faction represented the Shiv Sena. He said neither faction could have been given an advantage by being allowed to use the original party name and symbol.
“If all the tests stood vitiated, there was always the option available to them not to give an advantage to either of these groups. Let them select their own symbols and fight on their own strength, not on Balasaheb's,” Justice Bagchi said, according to Bar & Bench.
Political Party And Legislative Wing
Justice Bagchi also explained the difference between disqualification proceedings under the Tenth Schedule and a dispute over a political party's reserved election symbol.
He said that disqualification proceedings deal with the actions of individual legislators, while a dispute over a party's reserved symbol concerns the political party itself.
The Court also questioned whether the number of legislators supporting a faction could be treated as the deciding factor when disqualification proceedings involving some legislators were still pending.
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Kaul said the ECI had considered the Shiv Sena's Constitution, organisational structure and the support enjoyed by both factions before deciding that legislative strength was the only workable test in the circumstances.
He argued that the party's organisational structure was largely made up of nominated members and therefore did not accurately reflect the views of the party's cadre. He also said it was not practical to determine the level of support among the party's wider membership.
Kaul further argued that the Supreme Court's Subhash Desai judgment did not prevent the ECI from considering legislative strength while using its powers under Paragraph 15 of the Election Symbols Order.
He said that even if a legislator is disqualified, it does not cancel the election in which the person was elected, the votes they received or the party's share of votes.
Uddhav Faction Challenges Symbol Decision
Senior Advocate Kapil Sibal had earlier completed his submissions on behalf of the Uddhav Thackeray faction.
The Thackeray faction has argued that a majority among legislators cannot take control of the political party's identity or automatically claim its name and election symbol.
The Shiv Sena split into two rival factions led by Uddhav Thackeray and Eknath Shinde in 2022. The Shinde faction later approached the ECI, claiming the Shiv Sena name and its bow-and-arrow symbol.
In February 2023, the ECI recognised the Shinde faction as the Shiv Sena and allotted it the bow-and-arrow symbol. The Commission considered the strength of the two factions among elected representatives while making its decision.
According to the ECI's findings, 40 MLAs supported the Shinde faction, while 15 supported the Thackeray faction. Among the Shiv Sena's then 18 Lok Sabha MPs, 13 supported Shinde and five supported Thackeray.
The Supreme Court is continuing to hear the challenge to the ECI's decision, along with other petitions linked to the 2022 Shiv Sena split.
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