Breaking: Shiv Sena Symbol Row| Supreme Court Refuses To Stay EC's Order, Extends Protection Granted In EC's Decision

The Supreme Court today issued notice on the SLP filed by Uddhav Thackeray challenging the Election Commission's decision to allot the official name of the party Shiv Sena and its official symbol Bow and Arrow to the Eknath Shinde faction. The Court refused to pass any order regarding property, bank account etc. of the Shiv Sena, as prayed for by the Uddhav Thackeray faction.

The Court directed the filing of a counter affidavit in two weeks and a rejoinder within a week thereafter. 

The Bench of Chief Justice DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala ordered that pending further orders, the protection granted in para 133 (iv) of the order of the Election Commission shall continue to remain in operation. The Court refused to pass any order regarding property, bank account etc. saying that "we can't stay the order at this stage. They have succeeded before the Commission". Para 133 (iv) permits the Thackeray faction to retain the present symbol "Flaming Torch" and the present name "Shiv Sena (Uddhav Balasaheb Thackeray)" for the upcoming byelection.     

Senior Advocate Neeraj Kishan Kaul, appearing on caveat on behalf of the Shinde-led faction, submitted at the outset that they have a preliminary objection to the maintainability of the plea and said that the petitioner had earlier approached the Bombay High Court. "Why should you leapfrog a judicial hierarchy that exits?", he submitted.

"The argument that the Constitution Bench outcome will affect the EC was argued for one full day and this Court refused to stay the proceedings before the EC", he added.

Senior Advocate Kapil Sibal, representing Uddhav Thackeray submitted that the basis of the judgment of the EC is the majority that is in question before the Constitution Bench. He read from the order of the EC about the test of majority. "That very question is bending before your lordships. What will the High Court do?", he asked.

Neeraj Kishan Kaul replied by saying that it has never been their case that a legislature party is not an integral part of a political party. "The EC cites provisions to say that even when a political party goes for recognition, the number of votes has to be seen to recognise you as a political party. The EC sees that these are germane tests", he submitted.

He also submitted that EC considered the need for dissent and democracy within the party. The EC notes that in 1989 Sena was put to notice about its draconian constitution. It was then that the constitution was amended, but again it reverted to the draconian form, he said.

The constitution you filed with your reply is a draconian constitution with no whisper about allowing dissent, he said about Thackeray's argument that the amended constitution was intimated to the EC in 2013. 

Till a disqualification is pending, the MLA or MP has every power to vote in the house, he submitted adding that he is yet to place his arguments before the Constitution Bench. 

Senior Advocate Maninder Singh submitted that the Court had earlier permitted the EC to proceed with the matter and that is how it has decided the matter. Nobody has gone to any other political party. 90 per cent of the ministers are continuing, he submitted about allegations of toppling the government. 

When the Court observed it will issue notice, Sibal sought protection till the matter is heard.

Senior Advocate AM Singhvi submitted that they will now be bound by a whip and hence they should be protected.

Neeraj Kishan Kaul submitted that since July there is an oral undertaking that no such disqualification action will be taken. 

Sibal then submitted that action will be taken about bank accounts, properties and occupations. 

Yesterday, the Supreme Court agreed to hear the petition moved by Uddhav Thackeray today at 3.30 pm after the sitting of the Constitution Bench, which is hearing the larger issues related to the Maharashtra political crisis. 

“We won't disrupt the CB because there are three judges waiting for us. We will finish the Constitution Bench and get up a little early and then take it up tomorrow at 03:30”, said the Bench.

The Thackeray-led Sena faction has directly approached the Supreme Court by filing a Special Leave Petition under Article 136 of the Constitution challenging the order passed by the Election Commission of India on February, 17.

The Election Commission under Paragraphs 15 and 18 of the Election Symbols (Reservation and Allotment) Order, 1968 has allotted the party name “Shiv Sena” and the party symbol “Bow and Arrow” to the faction led by Eknath Shinde.

The Special Leave Petition(SLP) filed through Advocate-on-Record Amit Anand Tiwari states that the entire edifice of the order of the Election Commission is based upon the purported legislative majority of the Shinde-led faction which is an issue to be determined by the Constitution Bench.

“The ECI has failed to appreciate that Petitioner enjoys overwhelming support in the rank and file of the party. The Petitioner has an overwhelming majority in the Pratinidhi Sabha which is the apex representative body representing the wishes of the Primary members and other stakeholders of the party. The Petitioner enjoys the support of 160 members out of approximately 200 odd members in the Pratinidhi Sabha”, the petition says.

The following are the questions of law raised in the SLP:-

"a. Whether the ECI exercising jurisdiction under para 15 of the Symbols order can recognise a split in the Legislature Party post the Constitution (Ninety-first Amendment) Act, 2003 deleting the provision of Split in para 3 of the Tenth Schedule of the Constitution?

b. Whether ECI can by an order under Para 15 of the Symbols order seek to resuscitate the concept of a ‘split’ which is now prohibited under the scheme of the Tenth Schedule of the Constitution?

c. What is the constitutional sequence and interplay in the proceedings under the Tenth Schedule and para 15 of the Symbols order?

d. Whether the disqualification proceedings under the Tenth Schedule have to be decided first before the para 15 proceedings under the Symbols Order or vice versa?

e. Whether the test of the Legislative majority can be resorted to when such members purportedly constituting the majority are themselves facing disqualification proceedings?

f. Whether the ECI erred in disregarding the ‘organisational majority’ which was overwhelmingly supporting the Petitioner herein?

g. Whether the ECI erred in failing to apply the constitutionality test in the facts of the present case?"

Cause Title- Uddhav Thackeray v. Eknathrao Sambhaji Shinde & Anr.