Shiv Sena Case : Supreme Court Issues Notice On Uddhav's Plea Against ECI Order, Refuses To Restrain Shinde Group Taking Over Offices & Accounts

The Supreme Court on Wednesday issued notice on a petition filed by Uddhav Thackeray challenging the decision of the Election Commission of India which recognized Eknath Shinde faction as the official Shiv Sena. 

A 3-judge bench comprising Chief Justice of India DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala refused to stay the ECI order at this juncture.

The bench however permitted Uddhav group to retain the name "Shiv Sena (Uddhav Balasaheb Thackeray)" and the symbol "flaming torch" in terms of paragraph 133(IV) of the ECI order during the pendency of the matter. The ECI had allowed that interim arrangement in view of the bye-elections in Maharashtra assembly, scheduled to take place on February 26.

The lawyers of Shinde group also gave a verbal undertaking that they will not take precipitative action against Uddhav group by issuing disqualification proceedings. The undertaking was not recorded in the order.

Although Senior Advocate Kapil Sibal, appearing for Uddhav group, sought for a status quo order by saying that the offices and bank accounts of the party are being taken over by the Shinde group, the bench declined.

"This order does not contain anything regarding bank accounts or properties. ECI was deciding the symbol order. Something which is a part of the order we can certainly look upon. This does not form part of the order. ECI order is confined to the allotment of the symbol. Now they have succeeded before the EC. We cannot pass an order which has the effect of staying it without hearing them. We are entertaining the SLP. We can't stay the order at this stage.They've succeeded before the ECI", CJI Chandrachud said.

When Sibal expressed concerns about the Shinde group taking over the properties on the strength of EC order, CJI said, "That is independent of the ECI order. Ultimately there is a contractual relationship within a political party. Any further action, which is not based on the EC order, you have to exhaust other remedies available in law".

Shinde raises preliminary objection

At the outset, Senior Advocate Neeraj Kishan Kaul, appearing for Eknath Shinde, raised a preliminary objection as to the maintainability of the special leave petition filed by Uddhav in the Supreme Court directly against the ECI order, without approaching the High Court. Kaul pointed out that Uddhav had on previous occasions approached the Delhi High Court against interim orders of the ECI. He refuted Uddhav's argument that his petition is maintainable in the Supreme Court as the Constitution Bench is hearing other issues.

In response, Sibal submitted that the basis of the Election Commission's decision is the legislative majority claimed by Shinde. The legality of that majority is the very same issue before the Constitution Bench. "What will we do in the High Court when the issue is pending here?", Sibal asked. Sibal also took objection to the ECI only looking at the legislative majority.

Kaul responded by saying that legislative party is an integral part of the political party. He pointed out that the ECI has found the party constitution to be "dictatorial" which does not allow for any dissent. "In that context, the ECI says that legislative votes are to be looked at. No one has argued that these are separate things. Political party and legislative party are connected and integral part of each other", he said.

Senior Advocate Maninder Singh, appearing for Shinde group, submitted that the Supreme Court had rejected the argument that the ECI proceedings are interlinked with the Constitution Bench hearing when it refused to stay the poll panel proceedings in September 2022. He referred to the Symbol Order to say that it gives ECI the power to decide which is the real party in the event of emergence of rival factions.

Bench refuses stay

When CJI said that the bench will entertain the petition, Sibal requested for an interim order of status quo by saying that Shinde group is taking over the offices and accounts of Shiv Sena.

Senior Advocate Dr.Abhishek Manu Singhvi, also appearing for the Uddhav group, said that Uddhav group will face disqualification proceedings if they don't obey the whip or notice issued by Shinde group, as the ECI has recognized them.

At this point, Kaul said that there is already an oral undertaking that no precipitative action will be taken.

"Mr Kaul, if we take this after two weeks, are you in the process of issuing a whip or disqualifying them?", CJI asked. The senior counsel replied "No".

"They're saying that they won't do anything of that nature", CJI told Sibal.  Sibal then sought for interim protection relating to bank accounts and properties.

"Does this order any issues concerning bank account, property etc?", the CJI asked.

"No, but tomorrow they can say that they're the party and they can take over", Sibal replied.

However, the bench refused to pass any order in that regard, saying that it can only consider issues that are stated in the ECI's order.

Senior Advocate Devadatt Kamat, also appearing for Uddhav group, requested that the interim arrangement allowed by the ECI be continued. He said that the ECI's interim arrangement (allotting "flaming torch" symbol) was only for the bye-elections, which will be over on February 26.

The Shinde group did not object to this request. Senior Advocate Mahesh Jethmalani (for Shinde side) informed the bench that Uddhav group is not contesting the bye-elections anyway.

"That arrangement should continue till your lordships are hearing the matter. My political activity will come to standstill otherwise", Kamat urged.

Uddhav alleges in the petition that the ECI failed to discharge its duties as a neutral arbiter of disputes, acted in a manner undermining its constitutional status, and was "biased and unfair". 

The Election Commission of India (ECI) had on 17th February recognised Eknath Shinde group as official "Shiv Sena", allowing them to use the official "Bow & Arrow" symbol and "Shiv Sena" name. The Uddhav Thackeray faction was allowed to use the name "Shiv Sena (Uddhav Balasaheb Thackeray)" and the symbol of "flaming torch" for the upcoming bye-elections in Maharashtra assembly. The ECI had stated that it applied the tests mentioned in the 1971 Supreme Court judgment in Sadiq Ali v. Election Commission of India to come to its decision. 

The Uddhav Thackeray faction was represented by Senior Advocates Kapil Sibal, Dr. Abhishek Manu Singhvi, Devadatt Kamat, Advocate Amit Anand Tiwari among others and the Eknath Shinde faction was represented by Senior Advocates Neeraj Kishan Kaul, Mahesh Jethmalani, Maninder Singh, Sidharth Bhatnagar, Malvika Trivedi, assisted by Mr. Chirag Shah, Mr. Utsav Trivedi, Mr. Himanshu Sachdeva, Ms. Manini Roy, Mr. Piyush Tiwari, and Ms. Chaitali Jugran, Advocates

Case Title: Uddhav Thackeray v. Eknathrao Sambhaji Shinde And Anr. SLP(C) No. 3997/2023

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