SC declines to stay EC order ; allows Thackeray to use ‘flaming torch’ for bye-polls

New Delhi : The Supreme Court on Wednesday refused to stay the Election Commission of India (ECI) order that had recognised the Eknath Shinde faction as the real Shiv Sena and granted them permission to use the name ‘Shiv Sena’ and the bow and arrow symbol for their party [Uddhav Thackeray vs Eknathrao Sambhaji Shinde and anr].

A bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala, however, granted liberty to the rival Uddhav Thackeray faction to use the name ‘Shiv Sena (Uddhav Balasaheb Thackeray)’ and the ‘flaming torch’ symbol for the bye-elections in Chinchwad and Kasba Peth.

“The ECI order is confined to a symbol. Now we cannot pass an order to stay the Election Commission order. We are entertaining the SLP. We cannot stay the ECI order today,” the Court said.

The Court then proceeded to issue notice in the matter and listed the case after two weeks.

“Issue notice. Pending further orders protection granted under Para 133(4) (allowing Thackeray faction to use flaming torch symbol) under the impugned order of the Election Commission shall continue to operate. List this after 2 weeks,” the order said.

The Court’s order came on a plea by the Uddhav Thackeray faction against a February 17 ECI order recognising the Eknath Shinde-led faction of the split party as the real Shiv Sena and granting them rights to use the party’s bow and arrow symbol.

The Shiv Sena political party split into two factions last year, one led by Thackeray and the other by Shinde, who went on to replace Thackeray as Maharashtra’s Chief Minister in June 2022.

Shinde had then petitioned the ECI staking a claim to the ‘Shiv Sena’ name and the bow and arrow symbol.

The ECI relied on the strength of the legislative wing of the party to arrive at its decision rather than on the test of its organisational wing.

The ECI explained that although it had attempted to apply the test of the organisational wing, it could not come to any satisfactory conclusion because the latest Constitution of the party was not on record.

The claims of numerical majority in the organisational wing of the party by both factions were not satisfactory, the ECI had opined.

Hence, it proceeded to rely on the test of who had the majority in the legislative wing.

The Shinde faction was noted to have 40 Members in the Legislative Assembly (MLAs) as against the Thackeray faction’s 15 MLAs.

Likewise, in the Lok Sabha as well, out of 18 Members of Parliament (MPs), 13 MPs were supported the Shinde faction, while only 5 supported the Thackeray faction.

As such, the ECI ruled in favour of the Shinde faction and allowed it to retain Shiv Sena name and the bow and arrow symbol.

During the hearing today, Senior Advocate Kapil Sibal alongwith Advocate Amit Anand Tiwari, appearing for the Thackeray-led faction, questioned the ECI’s decision to apply the “test of the legislative wing” in determining which faction was the real Shiv Sena.

Milord, the basis of the ECI order is that in the test of majority, organisational wing will not be taken and instead take the test of majority in legislative wing… That’s how symbol was given to them.. What will the High Court do?“, he argued.

Senior Advocate Neeraj Kishan Kaul, appearing for the Shinde faction, questioned the maintainability of the plea.

He said that the Thackeray faction should have approached the courts below instead of directly coming to the Supreme Court against an order of the ECI.

“To come to the Supreme Court directly, your lordships have time and again said, that there is a judicial hierarchy…” he said.

The bench, however, asked Kaul about the ECI’s decision the legislative wing test

“Mr Kaul, EC has applied the legislative majority test … What do you have to say on this?” CJI Chandrachud queried.

“Recognition of political party, number of votes, percentage of votes etc. has to be seen.. The entire argument has been that we have treated legislative party as separate and so we can topple the government. It has never been our case that a legislature party is not an integral part. This person stifles democracy within the party itself. EC says, in given circumstances, it cannot go to lakhs of members across the States and for the recognition of party.. Hence, what is seen is percentage of Lok Sabha MPs etc.,” Kaul said.

Senior Advocates Mahesh Jethmalani, Maninder Singh, Sidharth Bhatnagar and Malvika Trivedi, assisted by advocates Chirag Shah, Utsav Trivedi, Himanshu Sachdeva, Manini Roy, Piyush Tiwari and Chaitali Jugran also appeared for the Shinde-led faction.

Advocates Tanvi Anand, Devyani Gupta and Saushriya Havelia appeared along with Advocate Tiwari for the Thackeray led faction.

separate batch of petitions is also pending before the top court in relation to the Maharashtra political crisis of 2022 which had led to the change in power in the Western State.

The Court, in that case, is considering various legal questions including the powers of the Governor of a State, the Speaker of the Legislative Assembly and the Speaker’s role when it comes to the initiation of disqualification proceedings against MLAs.