Allowing Legislative Wing Of A Political Party To Split & Topple Govt Makes Mockery Of Democracy: Shiv Sena UBT To Supreme Court

During the hearing of the Shiv Sena dispute today, the Uddhav Thackeray faction told the Supreme Court that allowing the legislative wing of a political party to split, claim to be the party itself and ultimately facilitate the installation of a new government would make a “mockery” of democracy.

Senior Advocate Kapil Sibal, appearing for the Shiv Sena (Uddhav Balasaheb Thackeray), raised the apprehension before a bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V Mohana. The bench is hearing the petition filed by Uddhav Thackeray challenging the decision of the Election Commission of India that recognized the Eknath Shinde faction as the official Shiv Sena and allowed it the use of the 'bow and arrow' symbol. Another plea filed by Uddhav Thackeray faction member Sunil Prabhu challenging the Maharashtra Speaker's refusal to disqualify MLAs of the Eknath Shinde faction under the 10th Schedule was also listed before the bench.

During the hearing, the Court examined, among other issues, whether a split in the legislative wing of a political party can “percolate” into the primary political organization and thereby trigger the jurisdiction of the Election Commission under Para 15 of the Election Symbols (Reservation and Allotment) Order, 1968.

Under Para 15 of the Election Symbols Order, the ECI can decide disputes pertaining to party name and symbol between two rival groups or factions of a recognized political party. The Uddhav faction argues that in the Shiv Sena case, the split having occurred in the legislative wing of the party, ECI had no jurisdiction under para 15 of the Election Symbols Order to declare that there was a split in the party itself and thereafter accord the party symbol to the Shinde faction.

The Court further questioned that when ECI is deciding a symbol dispute under para 15, does the clock stops at the date of application for the symbol by a rival group or can the ECI take into account subsequent events.

Sibal argued that para 15 of the Election Symbols Order does not recognise the concept of a legislative party. Yet, the ECI based its decision upon a split in the legislative party and held that there was a split in the party itself. Relying on Section 29A of the Representation of People Act, he also argued that a party is supposed to communicate to the ECI any changes in the party's name, address, office-bearers, etc. and the same was duly done. As per the Uddhav faction, even the amended 2018 party constitution was conveyed to the ECI, but it held that the constitution was not on its record.

The senior counsel highlighted that as the law stood then, a political party was not required to communicate amended constitutions to the ECI. Yet, the same was done by Shiv Sena with regard to its 2018 constitution. He further flagged the ECI's observation that Deputy Leaders of Shiv Sena were 'appointed'. Sibal underlined that while 12 Deputy leaders of the party are nominated, 21 are elected.

"Because ECI wanted to come to a particular conclusion, it ignored the 2018 constitution. It predetermined the end and manipulated the logic. Contrary to the exercise under para 15 [of the Election Symbols Order]...", he submitted.   

Sibal further submitted that the highest policy-making body of Shiv Sena, including the Paksh Pramukh, the Rashtriya Karya Karini and the Deputy Leaders (21), are democratically elected. The ones that are appointed are persons holding posts such as Secretary, Zilla Pramukh, Up-Zilla Pramukh, etc., who exercise power of implementing the decisions taken by the elected body.

Hearing his submissions, Justice Bagchi opined, "Perhaps the Commission's reasoning requires review. But it will be very difficult to ignore the fact that a group which is actually maybe born in the legislative polls did not have a resonance in the [primary organization]...first we see whether there is a split right? The split can originate in the legislative party but its crack can percolate in the primary organization."

Sibal contended that as per the Constitution Bench judgment in Subhash Desai case, a split in the legislative party cannot be the test to determine which group is the real party. can never arise in the legislative party, Justice Bagchi however said that the Subhash Desai judgment does not bar an examination whether the legislative split has percolated to the parent party.

"The Constitution Bench says that the test of a split cannot be restricted to a split in the legislative party. But it never says that a split in the legislature party, if it gets reflected in the organisation and the primary membership, it needs to be [eschewed]. It is like the epicentre of a [...]. This logic [para 15 not having any reference to legislative party], we have to take into consideration after hearing the respondents. It requires further scrutiny."

Sibal replied that if there is a prima facie split in the party, the evolving events will take over and a decision will have to be taken as to who is entitled to the symbol. However, in the present case, the relevant date was July 19, 2022 (when the Eknath Shinde faction filed a petition claiming the party symbol under para 15) and on the said date, there was no material before the ECI to come to a conclusion that there was a split in the political party.

Justice Bagchi later summarized Sibal's argument as requiring a rival faction, beyond merely having support in the legislative wing, to demonstrate some form of support within the political organization as it existed on the date when it approached the ECI.

CJI Kant, on his part, observed that ruling out ECI's jurisdiction at the threshold level may not be correct, because in that case, no issue can be gone into. If the ECI has exercised the jurisdiction wrongly, or its approach is wrong, that's a separate issue.

Towards the end of the hearing, Sibal raised a broader constitutional concern over the consequences of treating a legislative split as capable of changing the identity of a political party.

He warned that such an approach could permit the legislative wing of a political party to be effectively “sold” to a ruling party, resulting in the removal of an elected government.

"After 30 June, when he (Shinde) became the CM, even people who were with us (Uddhav) moved away. They continued to go. It's even happening nowadays. If you allow such political events to take place, that a wing of political party splits, calls itself the party and goes to the Commission, then it's hurricane. How do you allow a legislative party to be sold to a ruling party, install him as Chief Minister, and say it's an evolving event? That way you can throw out any government. Don't let the law make mockery of justice. We can't see democracy being withered away like this."

The hearing will continue tomorrow at 2 pm.

Appearance: Senior Advocate Kapil Sibal and Devadatt Kamat (for Uddhav faction); Senior Advocates Neeraj Kishan Kaul and Maninder Singh (for respondents)

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