Shiv Sena Vs Shiv Sena Case: ECI May Have To Revisit Symbol Allotment If Speaker’s Decision Found Erroneous, SC Says

New Delhi: The Supreme Court on Tuesday questioned whether the Election Commission’s decision recognising the Eknath Shinde faction as the real Shiv Sena and allotting it the party’s 'bow and arrow' symbol would have to be revisited if the court finds that the Maharashtra Speaker wrongly rejected disqualification petitions against the faction’s MLAs.

A bench comprising Chief Justice of India Surya Kant and Justices Joymalya Bagchi and V Mohana raised the issue while hearing Uddhav Thackeray’s challenge to the ECI’s decision. The court was examining the relationship between the proceedings before the Election Commission under Paragraph 15 of the Election Symbols Order and disqualification proceedings before the Speaker under the Tenth Schedule.

Court Questions Impact Of Disqualification

During submissions by senior advocate Neeraj Kishan Kaul, who appeared for the Shinde faction, Justice Bagchi asked what would happen to the ECI’s symbol order if the Supreme Court ultimately holds that the Speaker should have disqualified the MLAs.

“If let us say the disqualification decision is reversed by this court. What will be its impact on the symbol order?” Justice Bagchi asked, as quoted by Live Law, questioning whether an ECI decision could stand if it had awarded the symbol to a faction whose members were later found to have been wrongly spared disqualification.

Kaul argued that disqualification operates prospectively and that a disqualified MLA continues to remain a member of the political party, although they lose membership of the House. He also submitted that later disqualification would not invalidate votes already cast.

Justice Bagchi, however, pointed out that the enjoyment of a reserved election symbol is a continuing right and questioned whether a later finding that the Speaker’s decision was erroneous could require the ECI’s declaration to be reconsidered.

Kaul Argues Proceedings Are Independent

Kaul opposed such an interpretation, arguing that revisiting the Symbols Order could result in an 'endless exercise'. He maintained that proceedings before the Speaker and the ECI operate independently and serve different purposes.

The bench also referred to apparent tensions between different observations in the Supreme Court’s Constitution Bench judgment in Subhash Desai v. Principal Secretary, Governor of Maharashtra. The judgment had dealt with the relationship between the political party and legislature party, as well as the consequences of disqualification in the context of a rival faction’s claim to represent the political party.

Justice Bagchi observed that if the Speaker’s decision is upheld, there would be no further issue. However, if the Supreme Court finds the decision erroneous, the claim that the faction constituted the original political party may have to be reconsidered.

Legislative Majority Comes Under Focus

The hearing also focused on whether the ECI was entitled to rely on legislative majority while deciding which faction constituted the political party under Paragraph 15. Kaul argued that the Symbols Order does not prescribe a specific test and allows the ECI to adopt a test suited to the circumstances.

He relied on the earlier Sadiq Ali v. Election Commission of India judgment, in which the Supreme Court had upheld the ECI’s consideration of numerical strength in determining the legitimate faction of a political party.

Kaul also argued that observations in Subhash Desai distinguishing the political party from the legislature party were made specifically in the context of the Tenth Schedule and the appointment of a whip, and should not be interpreted as ruling out legislative majority as a relevant factor in symbol disputes. The court is examining Uddhav Thackeray’s challenge to the ECI’s recognition of the Shinde faction and its allotment of the Shiv Sena’s reserved symbol.

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