The story so far: In a setback to former Maharashtra Chief Minister Uddhav Thackeray, the Supreme Court on Wednesday refused to stay the Election Commission order issued last week, which acknowledged the Eknath Shinde-led faction as the official Shiv Sena by relying on the “test of majority”. A three-judge bench presided over by Chief Justice of India D.Y. Chandrachud, however, issued a notice to the group headed by Mr. Shinde based on a petition by the Thackeray camp against the poll panel’s order.
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The EC order granting the Shinde bloc the party name and election symbol of ‘bow and arrow’ — synonymous with the Thackeray family — has again intensified the tussle over the name, symbols and legacy of the Shiv Sena, with the Thackeray faction approaching the Supreme Court challenging the decision. In his plea, Mr. Thackeray alleged that the EC was “unfair and biased and failed in its duties as a “neutral arbiter of disputes” under the Election Symbols (Reservation and Allotment) Order of 1968.
The fight over the ‘real’ Shiv Sena
The two factions of the Shiv Sena have been locked in a fight for around a year over the name and symbol of the party, which was founded by Bal Thackeray in 1966. In June last year, a political crisis unfolded in Maharashtra after a group of 40 of the 55 Sena MLAs rebelled and walked out of the Maha Vikas Aghadi (MVA) alliance under the leadership of party leader Eknath Shinde, leading to a division in the party.
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The roots of the rebellion were traced to Mr. Thackeray’s decision to align with the Congress and the National Congress Party (NCP) to form a coalition government in 2019— deemed “unnatural” by detractors. In a letter, the Shinde faction claimed that the party cadres were dissatisfied with the leadership for aligning with the two ideologically opposed parties despite having fought the election in alliance with the BJP.
Dramatic political developments followed.
Mr. Thackeray moved out of his official residence and removed Mr. Shinde from the post of Shiv Sena ‘leader’. Sixteen MLAs were served with disqualification notices and the matter reached the Supreme Court. In the meantime, the then Governor Bhagat Singh Koshyari directed the MVA government to take a floor test to prove majority. The Thackeray camp argued in the SC that a trust vote can’t be held when the disqualification proceedings against 16 rebel MLAs were pending. The court, however, refused to stay the floor test, following which Mr. Thackeray announced his resignation. The MVA government collapsed, and Mr. Shinde took oath as the chief minister with BJP’s Devendra Fadnavis as his deputy.
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The two sides approached the SC regarding the disqualification of the rebel MLAs and the appointment of Mr. Shinde as the CM. Both sides also staked claim to the party name and symbol, each claiming to represent the ‘real’ Shiv Sena. The EC froze the bow and arrow symbol and allotted different symbols to the two factions ahead of scheduled bypolls in the State.
After examining final written submissions and oral arguments, the EC pronounced its order on February 17, recognising the Eknath Shinde faction as the original party. The Commission also asked the Thackeray faction to continue with the previously allotted symbol of a flaming torch.
How did the poll body decide in favour of Shinde camp?
Overruling a plea of the Thackeray faction to withhold the decision until the SC decided on a set of interlinked questions, the EC concluded that the Shiv Sena had indeed split as it awarded the party name and symbol to the Shinde faction, basing its decision on the “test of majority”.
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The poll body said it applied the three tests cited in the 1972 Sadiq Ali case (which dealt with a split in the Indian National Congress) — the test of aims and objects of the party constitution, the test of the party constitution and the test of majority.
In its 78-page order, the EC concluded that the first test was inapplicable since neither of the two factions made any significant averments on the application of the test. The EC also didn’t apply the second touchstone of the ‘test of party constitution’. The Commission termed the party document, submitted by the Thackeray faction, “undemocratic”, and noted that the amended Constitution of 2018 was not on its record. The EC added, “The Constitution of 2018 confers widespread powers of making various organisational appointments on a single person. Thus, the undemocratic norms of the original Constitution of Shiv Sena, which was not accepted by the Commission in 1999 have been brought back in a surreptitious manner further making the party akin to a fiefdom.” The EC asked the Shinde faction to amend the 2018 constitution of the party in line with the relevant sections of the Representation of People Act, 1951.
The ‘test of majority’
Like the Sadiq Ali case, the Commission relied on the legislature strength of the two factions —the ‘test of majority’— to decide which group was the ‘real’ Shiv Sena. In its order, the EC noted that the group of MLAs supporting the Shinde faction got nearly 76% of the votes polled for the 55 winning Shiv Sena candidates in the 2019 Maharashtra Assembly elections, while the Uddhav Thackeray faction got 23.5% of votes. It also found that 13 MPs from the Shinde group got 73% of the votes polled in the party’s favour in the 2019 Lok Sabha elections as compared to 27% of votes to the five MPs of the Thackeray faction.
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The Commission said that while the application of the test had given a “clear answer”, its application in the organisational wing of the party yielded an “indeterminable and non-conclusive” outcome.
Why did the Supreme Court refuse to stay EC’s decision?
The Supreme Court on Wednesday refused to stay the decision of the EC, saying it cannot be done without hearing the other side. “We cannot stay an order of the Election Commission at this stage. They have succeeded before the EC,” the CJI told the Thackeray camp. The SC also sought a response from the Shinde faction and asked the group to file a counter affidavit within two weeks to Mr. Thackeray’s challenge of the EC order.
The bench, however, permitted the Thackeray camp to retain the name “Shiv Sena (Uddhav Balasaheb Thackeray)” and the symbol of a flaming torch for the upcoming bypolls in the Chinchwad and Kasaba Peth constituencies.
Represented by advocate Kapil Sibal, the Thackeray faction expressed apprehensions about the Shinde faction taking over the party offices, property and bank accounts. The Thackeray group also sought protection from any “precipitate action” action by the Shinde camp till the next hearing.
The CJI, however, said the case before it was confined to a challenge to the EC order, and nothing more. “Ultimately, that is a contractual relationship within a political party. Any further action is not based on the EC decision. If there is any action, then you [Thackeray] will have to exhaust your remedies under the law,” the CJI said.
The counsel for the Shinde faction, meanwhile, assured the bench that it will not issue any whip or initiate the process to disqualify the lawmakers of the rival camp in the meantime.