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In the Shiv Sena case, the Eknath Shinde faction today argued before the Supreme Court that the Constitution Bench decision in Subhash Desai did not completely rule out the legislative majority test for determining which side among two rival factions constitutes the majority.

Senior Advocate Neeraj Kishan Kaul, for the Eknath Shinde-led Shiv Sena , made the submission before a bench of CJI Surya Kant, Justice Joymalya Bagchi and Justice V Mohana. He was responding to the appeal filed by Uddhav Thackeray challenging the decision of the Election Commission of India to allot the official party symbol to the Eknath Shinde-led group.

"It's factually and legally incorrect to say that Subhash Desai said that in Symbols Order, legislative party has no mention and thus no place and can't be looked at. Subhash Desai says under Symbols Order, seats and votes secured are important considerations for freezing a symbol and for a political party to get symbol. Relying on Sadiq Ali, it says that legislative majority test is a relevant test under para 15", he said.

The senior counsel further submitted, "Whole debate in Subhash Desai with respect to legislative party v. political party was in the context of the fact that who appoints Whip. The other side argued that the Whip appointed by legislative party represents the Whip of the political party as well. In that context, Subhash Desai said you can't conflate legislative and political party. Constitution Bench recognized importance of votes and legislative majority...to say that this was completely ousted and done away with is a complete [incorrect] reading. The day ECI order came, there was no judgment in Subhash Desai. It's not like ECI violated Constitution Bench judgment. Para after para in Subhash Desai says "fashion the test as per your wisdom in facts of a particular case"..."

Kaul, who argued on behalf of the Shinde faction on the symbols issue, contested the Uddhav faction's contention that ECI exercised a jurisdiction unknown to law while going into the validity of Shiv Sena's 2018 party Constitution.

"Right from the year 1994, in various orders, ECI has been writing to all political parties - either through correspondences or through orders passed - that you must have democratic constitutions. Reason is that if there is ad-hocism and if there is arbitrariness, how do we determine who represents the majority? Political party's majority is a relevant test, that it must have elected members of overwhelming numbers. Because that is what represents the will of the cadres, the will of the masses. If that is not elected, but are ad hoc, we can never determine. And then in these orders, ECI went on to say that this whole approach of some political parties is so feudal and autocratic that you treat parties as their personal fiefdom. And this is not Shiv Sena...much earlier, dealing with other political parties, ECI said that party must have elections and can't have 1-2 individuals appoint overwhelming number of people. Letters were categorically sent to say that with the introduction of S.29A to RP Act, parties ought to ensure that party constitutions are democratic", he said. 

He further submitted that the Uddhav-faction led Shiv Sena suddenly carried out an amendment in the party constitution in 2018 which completely changed the democratic character of the 1999 constitution.

"Shiv Sena at some stage came and said that our constitution does not permit elections. ECI persuaded Shiv Sena and late Sh. Balasaheb Thackeray agreed to it and came forward...and an amended constitution (1999) came into being, incorporating all principles of democratic functioning, in tune with amendments to the RP Act and what ECI wrote to them. After that, suddenly in 2018, new constitution emerges. It completely alters the democratic character which 1999 introduced pursuant to ECI telling all political parties to do. Only defense is they informed ECI. ECI has given a categorical finding that we do not possess this constitution. It was never registered with us. Subhash Desai judgment says even Speaker while looking at party constitution will look at constitution which is registered with ECI. They rely on a letter which talks about certain elections being held. Nothing in that letter to suggest that it was accompanied by 2018 constitution."

Kaul also argued against the Uddhav faction's claim that Shinde held a post under the 2018 constitution and later called the constitution undemocratic. 

"Only allegation made against us is that you also held a post under one of the posts mentioned in 2018 constitution. This matter is not about estoppel against me as if I am challenging election to a post under the Constitution...this is about the test that ECI employs to determine who represents majority in the political party", the senior counsel said. 

Kaul further argued that the Uddhav faction-led Shiv Sena aligned with a party which was ideologically opposed to the Shiv Sena principles. Therefore, there was discontentment among the party members, which ultimately resulted in the splinter group filing a claim before the ECI that they were the real Shiv Sena.

"Another argument sought to be forwarded is that when you went to ECI, there was no basis for it to assume jurisdiction and say prima facie that there was split in the party. Our case has been repeatedly that there was discontent in the party. It was really the Shiv Sena and BJP which had gone to the electorate together to fight an election at that stage. The results came on the two jointly fighting an election. For reasons best known to petitioners, they completely opted out and aligned with party which are diametrically, ideologically completely opposed to the philosophy of Shiv Sena. Dissents don't happen overnight. Ultimately, people said this can't go on and resolution said you have an autocratic setup, no one can voice any concern. It was then that a petition under para 15 was made to ECI to say that there is a split in the party and we represent the real Shiv Sena."

The senior counsel also contended that the post of Paksh Pramukh was not the creation of the 2018 party constitution. Rather, it existed even in 2013 and it was frozen in the memory of late Balasaheb Thackeray, who "toiled and created the party". Thereafter, the post of Pramukh came in. 

Arguments from Uddhav side were led by Senior Advocates Kapil Sibal and Devadatt Kamat. The hearing of respondents' submissions will resume on Sept 15. After Kaul and Senior Advocate Maninder Singh make submissions on the symbols dispute, Senior Advocate Dhruv Mehta will be addressing the Court on the disqualification issue. 

To read previous reports, click here. 

Case : Sunil Prabhu v. Eknath Shinde, SLP(C) No. 1644-1662/2024 (and connected case)

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